(i) Notice requiring payment of the mortgage money has been served on the mortgagor and default has been made in payment of part or all of it for three months thereafter; or
(ii) Some interest under the mortgage is two months or more in arrear; or
(iii) There has been a breach of some provision contained in the Act or in the mortgage deed (other than the covenant for payment of the mortgage money or interest), which should have been observed or performed by the mortgage or by someone who occurred in making the mortgage.
In my opinion, the reason why English law laid down that the power of sale shall not be exercised until the notice to mortgagor was elapsing because the law gives the mortgagor another chance to pay off his debt.

Under the English Law of Mortgage, the mortgagee has the right to exercise power of sale without any order of the court according to the statutory as mentioned above. Nonetheless in cases where a mortgage provides that a power of sale shall be exercisable in case of bankruptcy, this general rule will be excluded(8). The sale (by the mortgagee) can be made either by auction or by private contract and it also can be of the whole or part of the property. Therefore, this power gives a broad discretion to the mortgagee in exercise the power of sale. (Thought the power of sale allows the mortgagee selling the mortgaged property by himself, but the mortgagee still need the court order for those cases where the mortgaged property is occupied by the mortgagor because before making a sale, he or she may wish to have the mortgaged property vacant possession.)

In the process of the sale, the court laid down the rules that a mortgagee, in exercising his power of sale, is not a trustee of the power(9). Therefore, the mortgagee does not need to wait for the better price when selling the mortgaged property, if such sale was bona fide. However he has a duty of care to act in good faith. Moreover, there is a building societies – mortgagee(10) which has more duty to take reasonable care to ensure that the price for which the property is sold is the best price that can reasonably be obtained(11). This was illustrated by the case of Reliance Permanent Building Society v. Harwood-Stamper [1944] ch.362.

When the mortgagee receiving the money from the sale, this money will be discharged for any other encumbrances first and then for payment of all cost, charges, and expenses properly incurred by the mortgagor as incident to the sale. Secondly, the money will be discharged for the mortgage money, interest, and costs, and other money, if any, due under the mortgage. The residue of the money will be given to the mortgagor or the person entitled to the mortgaged property(12).

Coin has two faces and so is this issue. Before making the decision whether it is the appropriate time to use the power of sale in Thailand, next we will consider on advantages and drawbacks of power of sale.

VI. ADVANTAGES AND DRAWBACKS OF POWER OF SALE

Advantages

1. First of all, the mortgagee does not need to wait for the court order to sell the mortgaged property. Therefore, the procedure will be faster and can eliminate the elaborate procedure. In English mortgage law the power of sale under a mortgage did not arise form the contractual relationship between mortgagee and mortgagor and did not from part of the contractual consideration, rather it was a power which benefited the mortgagee in the event of the mortgagor's default.

2. The mortgagee can choose to sell either by public auction or by contract. So the mortgagee does not need to rely on the Execution Department to arrange a sale for him, the mortgagee can choose the best way for sale and the mortgage then may get the good price. This can solve the time consuming and fairness problem in the process of Government public auction.

3. The mortgagee can receive the repayment in a proper period of time which leads to the reduction of the amount of non performances loan (NPL) in his organization. The lower number of non performances loan shall lead to the more security of Financial Sector and more ability to give loan for the real economic sectors of the country. The mortgagee then may invest his money to somewhere else.

4. The mortgagor is deprived form the burden of interest.

5. The mortgaged property can then have more economic value. The owner of the property can bring this property to secure another loan or to sell without any encumbrance.

6. When the trial is expeditious, the people will trust in the court proceeding and can rely on the justice of Justice Institution.

Drawbacks

1. The mortgagor's right of redemption which ceases on a contract to sell that made after the power of sale has arisen.

2. Power of sale may give too much power for the mortgagee. It the mortgagee is dishonest when exercising this power, the mortgagor will be disadvantage.

3. The selling price from the power of sale process may not be the highest price or may not be the real value of the property. This is because the mortgagee needs only the sum for discharging the mortgage debt and some surplus interest so if the selling price covers his need, he will sell the mortgaged property without waiting for the better price.

VII. IS IT AN APPROPRIATE TIME FOR THAILAND TO APPLY THE "POWER OF SALE"?

Although Thailand now is a developing country which is going to be one of the big five industrialized countries in Asia, most of the development and technological are only limited in the metropolitan and other big cities of the country. Therefore, there is still having a big contrast between urban and rural. Most of Thai populations in the rural area are still in agriculture sector for living. Accordingly, most lending transactions in Thailand are from the part of agriculture that are poor and have less bargaining power when entering the mortgage agreement. Though power of sale has more advantages than drawbacks but Thai has to accept that the drawbacks can be injustice for the mortgagor, especially the mortgagor who are poor and has less bargaining power when comparing to a financial institution or a bank who are the mortgagor.

Power of sale, which gives the advantages for the mortgagee, may not suitable for Thai mortgagors who mostly are the poor farmers. Nevertheless, if Thai really desires to use power of sale in Thailand, Thai can overcome this problem by providing the strict provisions when exercising the power both the condition of when the power arising and the condition of using that power. The principle of power of sale should protect the interests of both parties. If the law gives too much power to the mortgagee, the mortgagee will take advantage of the mortgagor. On the other hand, if the law is not amended, it will allow the mortgagor to use this loophole of the law to delay the mortgage enforcement.

VIII. CONCLUSION

Amending the law is not an easy task, especially when there is a huge impact on the majority of the population of the country. Adopting power of sale in Thai mortgage law then needs the cooperation from both the public sector and government.

In conclusion, a mortgage is a reciprocal contract, each party having its own interest in the making of that agreement. The mortgagor gets money form mortgaging his property with the mortgagee, the mortgagee in exchange gets the benefit of receiving the interest from the amount of the mortgaged debt. We also have to bear in mind that the mortgagee does not intend to take the mortgagor's land or any other properties of the mortgagor. What the mortgagee wants is only the money since it is the purpose of his business. The principle of power of sale may be used by the mortgagor as a threat, warning the mortgagor to fulfill his obligation otherwise the mortgagor will lose his property, which is in nobody’s interest.

Therefore, to answer whether it is an appropriate time to adopt "Power of Sale" we had better asked ourselves first whether what are the true intentions of Thai mortgage law.