Kazuo Hatoyama

“ No such misconception influenced the minds of the framers of the Japanese Code. They were fully convinced that laws are made by human legislative agency; that all rights and duties are the creatures of law and that there are no rights not recognized by law. Hence, a so-called right which can not be legally enforced is not considered as a right in the Japanese Code.
The authors of the French Code started from the standpoint of duties, while the framers of the Japanese Code made rights the point of departure. Naturally a correlation exists between rights and duties. ”

“ The Japanese Code prescribes the effect of possession of non-domestic animals in the following terms: “A person who possesses an animal other than a domestic animal, which was formerly kept by another acquires the rights he exercises over it, if in the beginning of his possession he acted in good faith, and if within one month from the date of its escape he receives no demand from its former keeper.” ”

“ The Japanese Code has adopted the latter theory and enacts that the possession of a thing with an intention of owning it for a certain period creates a title of ownership, and the non-user of a right for a certain period extinguishes the right.
The raison d’être of prescription is that property should be entrusted to the persons who take good care of it and who are likely to make improvements upon it, to the indirect benefit of the nation, and should not be left to persons who do not make profitable use of it. ”

“ The theory of accession is that where two or more things are united in such a manner that they can not be separated, or that separation would cause deterioration, depreciation or unreasonable expense, the ownership of the whole should devolve on the person who owned one of the things before the union was effected. Pigeons, rabbits and fish may be easily separated without any damage either to themselves or to their cots, warrens or ponds, and consequently there does not seem to be any good reason why the law should step in and deprive the former owners of their proprietory rights. ”

“ In the course of time a system of jurisprudence was developed from their edicts and judgments. The Japanese judges, in seeking just principles to be applied to cases which were entirely novel, examined the jurisprudence of Europe and America, and, in thus appealing to the various occidental systems, they endeavored to eliminate those features of law which were accidental or merely historically important in particular countries, and selected the legal principles which might be said to be absolute and common to all. ”

“ The Japanese Code provides that if a party to a contract has agreed to make a prestation to a third person, the latter has the right to claim such prestation directly from the former, and that in such case the right of the third person comes into existence at the time when he expresses to the debtor his intention to take the benefit of the contract. The German Code goes still further, and provides that the obligation is at once created between the debtor and the third person without any expression of intention on the part of the third party to take the benefit of the contract. ”

“ By making it a right in rem, that is, making it good against all the world, the main object is secured, regardless of all changes in actual ownership. On economical grounds, however, the advantage of such a right is to be questioned; for the person who is in the enjoyment of such a right, considering that the property over which the right is established must sooner or later revert to the owner, would naturally be slow to make any permanent improvements. On the contrary he might not hesitate to extract a maximum of profit with a minimum of thought for the permanent interest of the property. ”

“ The French Code lays down the general rule that a person can only bind himself in his own name and for his own benefit (Article 1119) , and that the effect of a contract is limited to the parties to the contract (Article 11 65) . This is the natural result of the principle that the object of an obligation must be capable of being estimated in money, that is, an obligation must result in a benefit to the creditor. ”

“ It is no answer to say that the third person had knowledge of the transaction.
Right of Possession. — The French Code treats of possession under the heading of Prescription. The Japanese Code gives it a special place as a species of rights in rem. Possession, apart from being a footing for the establishment of other important rights, is in itself a right worthy of the protection of law. According to Roman law and the codes based upon that system, possession is defined to be the holding of a thing with an intention to acquire the ownership thereof. ”

“ A house may be burned down and a right may arise therefrom to receive the insurance money. Without special provision the preferential right will not be extended to such a case. Such provision is made in Article 304 of the Japanese Code, wherein it is stated that a preferential right may be exercised against money or other things which the debtor is to receive by reason of the sale, letting or loss of the subject of the right or damage to it, but the holder of the preferential right must make a judicial seizure of such money or thing before it is paid or delivered. ”

“ It is impossible to draw a scientific line of demarcation between legal obligations on the one hand and moral or social obligations on the other, by inquiring whether the subject thereof can be estimated in money or not. ”

“ Where the nature of an obligation is such as not to admit of compulsory performance, no demand for specific performance can be made. The French and Japanese Codes on this point are identical, but the reasons for the rule are different. The framers and expounders of the French Code say that if a demand for specific performance should be allowed on such cases, it would restrain the personal liberty of the debtor. ”

“ Again, an owner who is not in the present enjoyment of his property will not incur expenses the benefit of which may or may not accrue to himself. Thus nature which ought to be made to contribute its full measure to the wants of man, is only half utilized and the result is not only individually uneconomical to the parties concerned, but injurious to society of which they are conponents. ”

“ During long periods of time, wages are apt to fluctuate and it would be contrary to public policy and economy, that parties to a service contract should continue to be bound by an agreement which is at variance with the times. At the same time the liberty of people in disposing of their services by contract should be recognized. Japanese law gives as much scope to the freedom of contract as is compatible with public welfare. ”

“ The compensation for emphyteusis cannot be paid once for all at the time of the creation of the right, for the word rent means annual rent. This is simply the recognition of a Japanese custom which prevailed for hundreds of years previous to the codification. As to duration, however, the Code has departed from the custom, for formerly a sort of perpetual lease could be created which was interminable without the consent of the lessee, nor could the rent thereof be altered without his assent. In the French Code no such right in rem is recognized. ”

“ Preferential rights are special rights conferred on particular creditors to satisfy their claims in full, without any consideration whether the remainder would or would not be sufficient to meet the demands of general creditors. Such right ought to be conferred sparingly.
A preferential right is to be exercised over the thing in respect of which the right exists. It so happens sometimes that the thing is destroyed, but something else remains in its stead. ”

“ Superficies and Emphyteusis. — A superficiary is one who has the right to use the land of another person for the purpose of owning thereon buildings, or bamboos and trees. This is the definition of the Japanese Civil Code. It is a right to use the land of another, and its object is limited to the ownership of buildings, or bamboos and trees. ”

“ Article 466 provides that rights in personam may be assigned, provided always that they are of a nature which admits of assignment. Obligations that consist in the payment of money are of such nature that they can be performed by any person, and in these cases the rights are assignable under the Japanese law, but rights which arise out of personal relations, such as parents and children, are not assignable. ”

“ In the earlier societies rights were determined more by distinction of personal status than by contracts arising out of the exercise of the free will of persons, and property, the kinds of which were few and phases less complicated, was comparatively less important, while the tendency of modern civilization is towards individual freedom, abolition of distinction of rights and privileges based upon difference of personal status, allowing each individual man or woman to determine his or her rights and duties by the exercise of his or her own free will. ”

“ When a rule of law can be stated in general terms legislators ought no doubt to so formulate it. But the French Code, not satisfied with general propositions, frequently descends to particulars. This is avoided in the Japanese Code. Every changing and progressing society produces different phases of development. ”

“ According to the Japanese Code, preferential rights are either general or special. A general preferential right covers all the property of the debtor, while a special preferential right holds good only with reference to a particular piece of property. A person in whose favor an obligation exists, based upon any of the following grounds has a preferential right in all the property of the debtor: 1. Expenses for the common benefit, that is, the expenses incurred for the common benefit of the creditors in regard to the preservation, liquidation or distribution of the debtor’s property ”

“ The laws relating to artificial or (as we prefer) juridical persons are not found in the French Code, but with the growth and development of corporations and associations in modern society, a civil code without rules relating to them would hardly be complete or responsive to the requirements of the times. The French Code contains provisions which relate to public law and also to procedure. These are wisely omitted from the Japanese Code. ”

“ One of the reasons for maintaining that the subject of an obligation should be capable of appraisement in money is that, taking the contrary view, there would be a confusion of legal ideas with moral and social obligations. When the conceptions of moral and social obligations are so far advanced as to become common and general, they are taken up by legislators and coordinated with legal obligations. ”