m Cornell University Law Library FROM THE BENNO LOEWY LIBRARY RECEIVED BY CORNELL UNIVERSITY UNDER THE WILL OF MR. BENNO LOEWY D CORNELL UNIVERSITY LIBRARY 3 1924 069 576 704 DATE DUE >gtil^k.^ 1^ ^^fe I^^^Si.*. OQUm ^m^e^. GA YU5RD PRINTED IN USA Cornell University Library The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/cletails/cu31924069576704 '^^■ t'^mp^. The Civil Code '% \ V '9J5 /' ' / OF JAPAN TRANSLATED . H'tttlttrig Itdnliall Professor at the Imperial Universr Bremen -.—MAX NOSSLER. Tokyo -.—MARUYA & Co. YOKOHAMA, SHANGHAI, HONGKONG & SINGAPORE: Kelly & Walsh Lim. All Rights Reserved. •-sl^^Printed by the Kokubunsha, Tokyo.— ''^ B 1-7 iH% \ " -A ■' TO HIS LORDSHIP MARQUIS HmOBFMI ITO Minister President of S-; INISTER -TRESIDENT OF ^iTATE AND RESIDENT OF THE LOMMITTEE FOR THE Revision of the Codes •President of the C Revision of the C THIS BOOK IS EESPECTFDLLY DEDICATED- ^jrHE first draft of a Civil Code for Japan was \tJ drawn up by Mr. Boissonade de Fontarabie, a French jurist, and followed in the main the lines of the French law But shortly before it was to go into effect a committee of revision was appointed, who in- stead of simply revising that draft made a wholly new Code modeled very closely upon the new German Civil Code and entirely different from Mr. Boissonade's Code, which therefore never went into operation. The authors of the present thoroughly modern and scientific Code are Messrs. Nobushige Hozumi, Masak- asa Tomii and Kenjiro Ume, professors of law in the Imperial University of Tokyo. The technical terms of the Civil Code are very often literal translations into Sinico-Japanese of the corre- sponding German words. This fact and the great dif- ference in form, arrangement and terminology between the Japanese-German and the English law makes it often difificult to translate the Japanese words by pro- per technical equivalents in English. For the most part the same Japanese word has been translated whenever it occurs by the same English word, even at the cost of an occasional awkwardness of expression ; but in a few cases it was impossible to follow this rule ^\•ithout impairing the clearness of the sentence. n PREFACE, Sometimes unusual words have had to be employed to render the corresponding Japanese expressions, for instance the word " prestation," which, however, is used to some extent by recent writers in English. A most important difference between the English system and the system embodied in the new Japan- ese Code is that the latter does not recognize the distinction between I'eal and personal property, which plays so important a part in the former. The rules relating to property are mostly stated in a general form, so as to apply to all kinds of property. Furthermore the division of the English law into law and equity, which was the result of historical ac- cidents, has no place in the Japanese Civil Code. In the law of obligations the Japanese Code uses two words to express the meaning of the Latin word ohligatio, namely ■^i^ " saiken, " obligation-right and ^^ " saimu," obligation-duty. In this translation the single word " obligation " has been used to render both. In some cases, however, when it seemed neces- sary, obligations have been designated as existing '" in favour of " or " against " persons. The English ex- pressions " right of action " and " claim " cannot pro- perly be used to translate the word " saiken," as they have different meanings in English law. The family law and the law of succession are mainly of native origin. But the original Japanese institu- tions retained in these parts of the Codes have been greatly modernized. — In translating from the original Japanese text I have not made any use whatever of the English trans- lation of the first three Books of the Civil Code, which was published in the year 1897, nearly two years later PREFACE. iii than my German translation of the same work. The fact that I was the first to translate the Japanese Civil Code into a European language will justify my under- taking to present to the public another English version of this important law, for whose scientific translation or explanation a knowledge of German law is quite indispensable. I acknowledge my obligation to my friend, Prof. Henry T. Terry, of the College of Law of the Impe- rial University for his assistance in putting this trans- lation into a correct English shape. I have appended the translation of the Law con- cerning the Application of Laws in General, drafted in an excellent and also to foreigners satisfactory manner by Prof. Nobushige Hozumi with the assistance of Prof. K. Ume. Tokyo, June 1898. *Cv O C7 6 INDEX. -^^- BOOK I— General CHAPTER I. SECTION I Pages. I. I. SECTION II. SECTION III SECTION IV CHAPTER II SECTION I. SECTION II SECTION III. SUCTION IV. CHAPTER III. CHAPTER IV, SECTION I. SECTION II SECTION III. SECTION IV. SECTION V. provisions — Persons The holding of private rights , — Capacity . — Domicile 6. — Disappearance, 7. . — Juridical persons . — Creation of juridical per- sons 9. . — The management of juri- dical persons 15. — Dissolution of a juridical person 18. — Penalties 23. — Things 24. — Juristic acts 25. — General provisions 25. . — The expression of inten- tion 26. — Representation 27. — Void and voidable juristic acts 32. — Conditions and time of commencement or end- ing 34- CHAPTER V.- —Periods of time 36. CHAPTER VI.- —Prescription 38. SECTION I.- —General provisions 38. SECTION II.- —Acquisitive prescription. ... 41. SECTION III.- —Extinctive prescription. ... 42. BOOK II.— Real rii ghts 46. CHAPTER I.- —General provisions 46. CHAPTER II.- —Possessory right 47- SBCTION I.- — A.quisition of a posses- s6ry right 47- SECTION II.- —The effect of a possessory right 49- SECTION- III.- -Extinction of a possessory right S3- SECTION IV.- -Quasi-possession 54- CHAPTER III.- —Ownership 54- SECTION I.- —The extent of ownership... S4- SECTION II.- —The acquisition of owner- ship 62. SECTION III. — Co-ownership 65. CHAPTER IV.- — Superficies 68. CHAPTER V. — Emphyteusis 70- CHAPTER VI.- —Servitudes 72. CHAPTER VII. — Possessory liens 75- CHAPTER VIII. — Preferential rights 77- SECTION I. — General provisions 77- SECITON II. — Classes of preferential rights 78. SUBSECTION I. — General preferential rights 78. SUBSECTION II. — Preferential rights in movables 80, Pages. SUBSECTION III .—Preferential rights in immovables 83. SECTION III. — The rank of preferential rights 84. SECTION IV. — The effect of preferential rights 86. CHAPTER IX.— Pledge 89. SECTION I. — General provisions 89. SECTION II.— Pledge of a movable. ... 91. SECTION III. — The pledge of an immov- able 92. SECTION IV. — The pledge of a right. ... 93. CHAPTER X.— Mortgage 95. SKCTION I. — General provisions 95. SKCTION II. — The effect of a mortgage. 97. SECTION III. — The extinction of the mortgage 103. BOOK III.— Oligations I04- CHAPTER I. — General provisions 104. SECTION I. — The subject of the obliga- tion. 104. SECTION II. — The effect of the obliga- tion 107. SECTION III. — Plurality of creditors or debtors 112. SUBSECTION I. — General provisions... 112. SUBSECTION II. — Indivisible obliga- tions 112. SUBSECTION III. — Joint obligations. ... II3' SUBSECTION IV. — Suretyship 117. SECTION IV.. —The assignment of obliga- tions 122, IV SECTION V. — The extinquishment of ob- SUBSECTION SUBSECTION SUBSECTION SUBSECTION SUBSECTION CHAPTER II. SECTION I . SUBSECTION SUBSECTION SUBSECTION SECTION II.- SECTION III.- SUBSECTION SUBSECTION SUBSECTION SECTION IV.- SECTION V.- SECTION VI.- SECTION VII.- SUBSECTION SUBSECTION SUBSECTION SECTION VIII.- SECTION IX.- SECTION X.- SECTION XI.- ligations I. — Performance II.— Setoff III. — Novation IV. — Release V. — Confusion -Contracts -General provisions ... I. — The formation of contract II. — The effect of a con- tract Ill . — The rescission of contract -Gift -Sale I .- -General provisions. . Pages. 124 124 133 134 136 136 137 137 137 140 142 145 146 146 II. — The effect of a sale. 147 III. — Repurchase 152 -Exchange 155 -Loans for consumption, ... 155 -Loans for use 157 -The hiring of things. ... 159 I. — General provisions... 159 II. — The effect of the hir- ing of things. ... I60 III. — The termination of a hiring of things ... 162 -The hiring of services. ... 164 -Contract work 167 -Mandate 169 -Deposit ... 173 SECTION XII.- SECTION XIII.- SKCTION XIV.— CHAPTER III.- CHAPTER IV.- CH AFTER V.- BOOK IV.— Family CHAPTER I.- CHAPTER II.- SECTION I. — I SECTION I I -Association -Life Annuities ■Compromise -Business management. -Unjust enrichment. ... -Wrongful acts J'ages. 175- 1 80. 181. 182. 183. 185. 190. 190. of .. 192. .. 192. SECTION 1 1 1 .• CHAPTER III. SECTION I. SUBSECTION 8UBSECTI0X SECTION SECTION II. III. SUBSECTION SUBSECTION -General provisions. ... •The head and members a house General provisions. ... Rights and duties of the head and of the mem- bers of a house 196. ■Extinguishement of the headship of a house. ... 197. Marriage 201. -The contracting of mar- riage 201. I. — Requisites of mar- riage 201. II. — The invalidity and the cancellation of a marriage 204. Effect of marriage 208. -The property of the hus- band and Mnle 209. I. — General provisions... 209. 1 1 . — Legal arrangement as to property of the husband and wife 210. SECTION IV.- SUBSECTION SUBSKCTION CHAPTER IV.- SECTION I.- SU13SECTI0N SUBSKCTION SECTION I I . SUBSKCTION SUBSECTION SUBSECTION SUBSECTION CHAPTER V.- SECTION I.- SECTION II.- SECTION III. CHAPTER VI.- SECriON I. SECTION II. SUBSECTION SUBSECTION SECTION III.- Pages. -Divorce 213. I. — Divorce by consent. 213. II. — Judicial divorce. ... 214. -Parent and child 216. -Children by birth 216. I. — Legitimate children. 216. II. — Shoshi and natural children 218. -Adopted children 220. I. — Requisites of adop- tion 220, II. — The invalidity and cancellation of an adoption 223 Iir. — The effect of adop- tion IV. — The dissolution o adoption -The parental power -General provisions -The effect of the parental power —The extinction of the parental power -Guardianship —The arising of guardian ship —Guardians and supervis- ors 237 I. — Guardians 237 II. — Supervisors 240 -The functions of a guar- dian 242 226 230, 23a 231 23s 236 236 Pages. SECTION IV.— Termination of the guardi- anship ... 247. •CHAPTER VII.— The family council 248. CHAPTER VIII.— The duty of support. BOOX V. — Succession ..251. .. 254- ..254. .. 254. .. 256. CHAPTER I. — Succession to a house. sp:cti(jN I. — General provisions. ... SKCTION II. — The heir to a house... SKCTION III. — The effect of the succes- sion to a house 262. CHAPTER II. — Succession to property. ... 264. SECriON I. — General provisions 264. SECTION II. — The heir to property. ... 264. SECTION III. — The effect of succession to property 266. SUBSECTION I.— General provisions.. 266. SUBSECTION II.— Portions 267. SUBSECTION III.— The partition of the property succeed- ed to 269. CHAPTER III. — The acceptance and refusal of a succession SECTION I. — General provisions 271. SECTION II. — Acceptance 273. SUBSECTION I. — Absolute acceptance, /.ji. SUBSECTION II. — Qualified acceptance. 274. SECTION III. — Refusal 277. CHAPTER IV.— The separation of the pro- perty 278. CHAPTER v.— The absence of an heir. ... 280. CHAPTER VI.— Wills 283. SECTION I. — General provisions 283. Pages. SECTION 1 1 .—The forms of a will 1 84 . SUBSKCTION I.— Ordinary forms. ...284. SUBSECTION II.— Exceptional forms.... 288. SECTION III.— The effect of a will. ... ,..291. SECTION IV. — The carrying into execu- tion of a will 296. SECTION V. — The revocation of a will... 300. CHAPTER VII.— Legal portions 301. LAW CONCERNING THE APPLICATION OF LAWS IN GENERAL 306. LAW AMENDING THE DECREE NO. 113.314- LAW OF NATIONALITY 315. BOOK I. GENERAL PROVISIONS. CHAPTER I. PERSONS. SECTION I. THE HOLDING OF PRIVATE RIGHTS. I. The enjoyment of private rights begins at birth. Foreigners enjoy private rights except as forbidden by law, regulation or treaty. SECTION II. CAPACITY. 3- On the completion of twenty years a person becomes- of full age. 4- For the doing of juristic acts a minor must obtain. the consent of his legal representative, except when he merely acquires a right or is freed from a duty. An act contrary to the foregoing provisions may be rescinded. 5- When the legal representative authorizes a minor to dispose of property for a purpose specified by him, the minor may within the limits of such purpose dispose of it at his pleasure. He may do the same as to property which he has been authorized to dispose of without any purpose being specified. A minor who has been authorized to carry on one or more businesses, has the same capacity in relation to such businesses as a person of full age. If in such case the minor is not capable of conduct- ing the business, his legal representative may revoke or restrict the authority according to the provisions of Book IV of this Code. 7- A person of unsound mind may on the application •of himself, of her husband or his wife, of any relative to the fourth degree, of the head of his house, of his guardian or curator, or of the public procurator be adjudged incompetent by the court. 8. A person adjudged incompetent must be placed imder guardianship. 9- The acts of a person adjudged incompetent may be rescinded. lO. If the cause of the incompetency ceases to exist, the court must on the application of any of the persons mentioned in Art. 7 revoke the adjudication. II. Weakminded, deaf, dumb or blind persons and spendthrifts may be placed under curatorship as quasi-incompetent. 12, A quasi-incompetent person must have the consent of his curator for doing the following acts : — 1. Receiving or employing capital ; 2. Contracting a loan or giving security ; 3. Doing any act whose object is the acquiring or parting with a right in an immovable or a valuable movable ; 4. Doing any act in the course of a lawsuit ; 5. Making a gift, a compromise, or an agreement to submit to arbitration ; 6. Accepting or refusing a succession ; 7. Refusing a gift or a legacy, or accepting a gift or a legacy subject to a charge ; 8. Constructing, rebuilding or enlarging buildings or making extensive repairs ; 9. Hiring and letting property for a period longer than specified in Art. 602. In proper circumstances the court may order that the quasi-incompetent person must have the consent — 4 — of the curator for acts other than those mentioned in the preceding- paragraph. Any act contrary to the provisions of the two preced- ing paragraphs may be rescinded. 13- The provisions of Art. 7 and 10 apply correspond- ingly to quasi-incompetent persons. 14. A wife must obtain the permission of her husband for doing the following acts : — 1. Those specified in Art. 12, No 1-6; 2. Accepting or refusing a gift or a legacy ; 3. Making any contract affecting the disposition of her person. Any act contrary to those provisions may be rescinded. 15. A wife who has been permitted to carry on one or more businesses has the same capacity in relation to such businesses as a person sui juris, 16. A husband may revoke or restrict the permission granted by him ; but such revocation or restriction cannot be set up against a person acting in good faith. 17- In the following cases a wife does not require the permission of her husband : — I. If it is uncertain whether the husband is living t> or dead ; — 5 - 2. It the husband has deserted her ; 3. If the husband becomes adjudged incompetent or quasi-incompetent ; 4. If the husband because of lunacy is placed in a hospital or a private house to be taken care of ; 5. If the husband has been sentenced to a punish- ment of imprisonment of one year or more, for the time he is undergoing such sentence ; 6. If the interests of the husband and wife conflict. 18. If the husband is a minor, he can give permission for the acts of his wife only in accordance-with the provisions of Art. 4. ig. The other party to a voidable act of an incapacitat- ed person may after such person has acquired capacity notify him to declare definitely within a period of not less than one month whether he will ratify such act or not. If no definite answer is given within such time, it is deemed to be ratified. The same is the case if, so long as the incapacity continues, such a notification is given to the husband or legal representative, and no definite answer is made within the time fixed ; but to a legal representative such a notification can only be given as to matters within the scope of his authority. If the act is one for which particular forms are required, it is deemed to be rescinded, unless such form is complied with within the time above specified. A notice may be given to a quasi-incompetent person or to a wife, to ratify the act with the consent of the curator or the permission of the husband within the time specified in the first paragraph. Jf the quasi- incompetent person or the wife does not give notice within the time specified that the consent of the curator or the permission of the husband has been granted, the act is deemed to be rescinded. 20. If the incapacitated person has used fraudulent means to cause it to be believed that he has capacity, his act cannot be rescinded. SECTION III. DOMICILE. 21. The principal place where a person lives is his domicile. 22. If the domicile of a person is not known, the place of his actual residence is deemed to be his domicile. 23- If a person, whether a Japanese or a foreigner, has no domicile in Japan, his place of residence in Japan is deemed to be his domicile ; but this does not apply, where according to the General Law concerning the Ap- plication of Laws the law of his domicile is to govern. 24. If for the purpose of any act a special domicile has been chosen, that is deemed to be the domicile in respect to such act. SECTION IV. DISAPPEARANCE. 25. If a person leaves the place which up to that time has been his domicile or residence, without having instituted a manager for his property, the court on the application of any person interested or of the public procurator may order all measures necessary for the management of the property to be taken. This applies, if during the absence of such person the authority of the manager comes to an end. If such person afterwards institutes a manager, the court must on the application of such manager or any person interested or of the public procurator revoke its order. 26. If it is uncertain whether the absent person who has instituted a manager is living or dead, the court may on tfie application of any person interested or of the public procurator substitute another manager. 27. A manager appointed by the court under the provi- sions of the preceding two articles must make an in- ventory of the property to be managed by him. The costs are to be paid out of the property of the absent person. If it is uncertain whether the absent person is living or dead, and an application is made by any party interested or by the public procurator, the court may — 8 — order a manager instituted by the absent person him- self to do as prescribed in the preceding paragraph. Also the court may order the manager to take all necessary measures for the protection of the property of the absent person. 28. If it is necessary for a manager to do any acts in excess of the powers specified in Art. 103, he may do so on obtaining the permission of the court. Where it is uncertain whether the absent person is living or dead, the same applies, if it is necessary for a manager to do any acts in excess of the powers conferred upon him by the absent person. 29. The court may require the manager to give proper secu- rity for the management and restoration of the property. The court may allow a reasonable compensation to a manager out of the absent person's propertj'-, having regard to the relations existing between the manager and the absent person and to the other circumstances. 30. If it has been uncertain for seven years whether the absent person is living or dead, the court may on the application of any person interested or of the public procurator make an adjudication of disappearance. The same applies to a person who has gone to the seat of a war, or has been on a ship which was lost, or has come into any other peril of his life, if it is uncertain whether he is living or dead for three years after the war has come to an end, the ship has been lost or the other peril has passed. — 9 — 31. A person against whom an adjudication of disap- pearance has been made is deemed to have died at the completion of the period specified in the preceding article. If it is proved that the person who disappeared is living, or that he died at a time different from that specified in the preceding article, the court must upon the application of such person or of any person interest- ed revoke the adjudication ; but this does not affect the validity of acts done in good faith between the adjudi- cation and the revocation. A person who has acquired property under the adjudication but loses his right by its revocation is bound to restore such property only so far as he is still enriched by it. CHAPTER II. JURIDICAL PERSONS.* SECTION I. CREATION OF JURIDICAL PERSONS. 33- A juridical person can come into existence only by * The usual terra in the Englisli law is " artificial persons ; " but " juridical persons" is also used by recent writers, and is a closer rendering of the Japanese word. The expression " legal persons " cannot be used here. — to — virtue of the provisions of this law of of some other law. 34- Associations or foundations* for purposes of reh'gion, worship, charity, science or art or other purposes of pubhc utility, not having as their object the making of profits, can become juridical persons by the permis- sion of the competent authorities. 35- Associations for purposes of profit can become juridical persons on compliance with the conditions prescribed for the creation of commercial companies. To such associations, when they have become juridi- cal persons, all provisions relating to commercial companies apply correspondingly. 36. The existence of foreign juridical persons other than States, administrative districts and commercial companies is not admitted ; but this does not apply to such foreign juridical persons as are admitted by law or treaty. Foreign juridical persons admitted under the provi- sions of the preceding paragraph have the same rights as the same classes of juridical persons existing in Japan ; but this does not apply to such rights as foreigners cannot enjoy, or so far as special provisions are made by law or treaty. * A foandation^zaidan SiW — '^ somewhat siiuilai' to a " trust" in English law, but the word " trust" cannot be used here, as the legal cha- racter of the two is different. — II — 37- The creators of an association* must draw up articles of association containing the following particulars : — 1. Its object ; 2. Its name ; 3. The location of its office ; 4. Provisions relating to its capital ; 5. Provisions as to the appointment or dismissal of its managers ; 6. Provisions as to the acquisition or loss of membership in it. 38. The articled of association can only be changed by the consent of at least three quarters of the members ; except so far as the articles themselves provide otherwise. A change in the articles of association is valid only when it has been approved by the competent public authorities. 39- A creator of a foundation must in the act of endow- ment provide for the matters specified in Art. 37, No 1-5. 40. If the creator of a foundation dies without having made provision as to its name, the location of its office and the appointment or dismissal of its managers, this shall be done by the court on the application of any person interested or of the public procurator. * Henceforth in this chapter the words "association" aud "founda- tion " denote associations and foundations which are juridical persons. 41. If an endowment is made by an act inter vivos, the provisions relating to gifts apply correspondingly. If an endowment is made by will, the provisions relating to legacies apply correspondingly. 42. If the endowment is made by an act inter vivo:, the property given becomes the property of the juridical person from the time when the approval of its creation is granted. If the endowment is made by will, the property is deemed to vest in the juridical person from the time when the will takes effect. 43. A juridical person has rights and duties accordant to law and regdalions within the scope of its object as defined in the articles of association or the act of endowment. 44- A juridical person is bound to make compensation for any damage done to other persons by its managers or other representatives in the exercise of their func- tions. If the damage arises from an act which is not within the scope of the object of the juridical person, those members or managers who have approved of the resolution for such act, and those managers and other representatives who executed it, are jointly bound to make compensation. — 13 — 45. A juridical person must be registered within two weeks from the day of its creation at the place of each of its ofifices.* The creation of a juridical person can be set up against third persons only when it has been registered at the place of its principal office. If a juridical person after its creation establishes a new ofifice, that must be registered within one week from the time of its establishment. 46. The matters to be registered are as follows : — 1. The object of the juridical person ; 2. Its name ; 3. The location of its ofifice ; 4. The date of the permission for its creation ; 5. Its duration, if that has been fixed ; 6. The total amount of its property ; 7. The manner in which contributions are to be made, if any such has been provided for ; 8. The names and domiciles of its managers. If any change takes place in the matters above specified, that must be registered within one week. Before registration a change cannot be set up against third persons. 47- If for any of the matters required to be registered under the provisions of Arts. 45, i and 46 the permission of some public authority is necessary, the period limited * The word "office" here denotes a place where the affairs of the juridical person are managed. — 14 — for registration is computed from the reception of the certificate of permission. 48. If a juridical person changes its ofifice, such change must be registered at the original place within one week, and the registration specified in Art. 46 must be made at the new place within the same period. If the change of ofifice is within the same registration district, only the fact of the change need be registered. The provisions of Arts. 45,3, 46 and 48 apply, where a foreign juridical person has established an ofifice in Japan ; but as to facts arising in foreign countries the period for registration is computed from the time when notice thereof is received. When a foreign juridical person first establishes an ofifice in Japan, third persons need not recognize the existence of such juridical person, until registration has been effected at the place of its office. 50. A juridical person has its domicile at the place of its principal ofifice. 51- A juridical person must make an inventory of its property at the time of its creation and within the first three months of each year, and must keep it always at its ofifice. If a special business year has been established, such inventory must be made at the time of its creation and at the end of each business year. An association must keep in its ofifice a list of its — IS — members, which must be revised wlienever a change in its members occurs. SECTION II. The management of juridical persons. 52. A juridical person must have one or more managers. If there are several managers, and the articles of association or the act of endowment does not contain different provisions, decisions as to the affairs of the juridical person are made by a majority of the S3- The managers represent the juridical person in its affairs, but they may not act contrary to the provisions of the articles of association or to the contents of the act of endowment. In an association they must also obey the resolutions of a general meeting. 54. Any restriction upon the powers ot representation of the managers cannot be set up against third persons acting in good faith. 55- The managers may delegate to other- persons the power to represent the association as to particular acts only in case it is not forbidden by the articles of association, the act of endowment or a resolution of a general meeting. S6. If a vacancy occurs among , the managers, and damage is likely to ensue from delay, the court may on — i6 — the application of any person interested appoint a temporary manager, 57- In a matter in which the interests of a juridical person conflict with those of a manager, the latter has no representative power. In such case a special representative must be appointed according to the provisions of the preceding article. 58. By the articles of association, the act of endowment or a resolution of a general meeting one or more supervisors may be constituted for a juridical person. 59- Supervisors have the following duties : — 1. To examine into the condition of the property of the juridical person ; 2. To examine into the conduct of its affairs by the managers ; 3. If they discover anything improper in the condition of its property or the conduct of its affairs, to give notice thereof to a general meet- ing or to the competent public authorities ; 4. To call a general meeting, if necessary, in order to give the notice mentioned in No 3. 60. The managers of an association must at least once a year hold an ordinary general meeting of the members. 61. The managers of an association may at any time, if they consider it necessary, call an extraordinary general meeting. — 17 — The managers must call an extraordinary meeting, whenever at least one fifth of all the members request it, stating the object of it. This number may be increased or diminished by the articles of association. 62. A call for a general meeting must be made at least five days beforehand, stating the matters to be acted upon, in the manner provided in the articles of association. 63. The affairs of an association, so far as not entrusted by the articles of association to its managers or other officers, are transacted by resolutions of a general meeting. 64. Except as otherwise provided in the articles of association, a resolution can be passed in a general meeting only on those matters as to which the notice mentioned in Art. 62 has been given. 65. All the members have the same right to vote. Members who do not attend a general meeting may vote by writing or by proxy. These provisions do not apply, if it is otherwise provided in the articles of association. 66. A member has not the right to vote upon any — i8 — resolution concerning a relation between the associa- tion and himself. 67. The affairs of a juridical person are subject to the supervision of the competent public authorities. The competent authorities may at any time of their own motion examine the condition of the affairs and of the property of a juridical person. SECTION III. DISSOLUTION OF A JURIDICAL PERSON. 68. A juridical person is dissolved by the following causes : — 1. If any cause of dissolution arises which is specified in the articles of association or the act of endowment ; 2. If the object for which the juridical person was created has been fully accomplished or is impossible to accomplish ; 3. By bankruptcy; 4. By the revocation of the permission for crea- tion. An association is also dissolved for the following causes ; — 1. By a resolution of a general meeting ; 2. If there are no longer any members. — 19 — 69. Except as otherwise provided in the articles of association, an association can be dissolved by a resolution to dissolve only if at least three fourths of all members concur in such resolution. 70. If a juridical person becomes unable to meet its obligations in full, the court upon the application- of its managers or of any creditor* or of its own motion must make an adjudication of bankruptcy. In such case the managers must apply immediately for an adjudication of bankruptcy. 71. If a juridical person carries on undertakings which are beyond the scope of its object, or violates the conditions under which permission for its creation was granted, or does acts which might be injurious to the public interests, the competent authorities may revoke such permission. 72. The property of a juridical person which has been dissolved goes to the persons designated in the articles of association or the act of endowment. If in the articles of association or the act of endow- ment the persons to whom the property shall go have not been designated, or no way of designating them has been provided, the managers may with the permis- sion of the competent public authorities dispose of * For the meaning of "creditor" see Art. 400. — 20 — the property for some object similar to that of the juridical person; but in the case of an association they must obtain a resolution of a general meeting. If no disposition is made under the provisions of the two preceding paragraphs, the property goes to the State. 73- A juridical person which has been dissolved is deemed to continue in existence for the purposes of liquidation, until the liquidation is finished. 74. When a juridical person is dissolved, except in the case of bankruptcy, the managers become liquidators ; but this rule does not apply, if in the articles of association or the act of endowment it is otherwise provided, or if a general meeting has appointed other liquidators. 7S- If there are no such persons as ought to be liquid- ators under the provisions of Art. 74, or if because of a vacancy among the liquidators there is danger of loss, the court on the application of any person interested or of the public procurator or of its own motion may appoint liquidators, 76. For reasonable cause the court on the application of a person interested or of the public procurator or of its own motion may remove a liquidator. 77- The liquidators, except in the case of bankruptcy, must within one week after dissolution register their names and domiciles and the cause and date of dissolu- tion, and in any case must give notice thereof to the competent public authorities. A liquidator who assumes his position in the course of the liquidation must within one week from such day register his name and domicile and give notice thereof to the competent public authorities. 78. The functions of the liquidators are as follows : — 1. To wind up all pending business of the juridical person ; 2. To collect all obligations existing in its favour and to perform all obligations existing against it ; 3. To hand over the remainder of its assets. The liquidators may do all acts necessary for the performance of their functions as specified in the fore- going paragraph. 79. The liquidators must within three months after assuming their functions give three public notices to the creditors to present their claims within a fixed period, which must not be less than two months. Such public notice must contain a statement that, if a creditor does not present his claim within the period fixed, it will be excluded from the liquidation. But liquidators must not exclude any creditor known to them. The liquidators must send special notices to present their claims to all known creditors. 22 8o. If a creditor presents his claim after the expiration of the period fixed, he can enforce it only after all the obligations of the juridical person have been fully satisfied, and only against such assets as have not yet been handed over to the persons entitled to receive them. 8i. If it appears during the liquidation tha* the assets of 1 he juridical person are not sufificient to satisfy all its obligations, the liquidators must at once apply for an adjudication of bankruptcy and give public notice thereof. The duties of the liquidators come to an end as soon as they have transferred the affairs of the juridical person to the administrator in bankruptcy. If in such case payments have already been made to creditors or assets have been handed over to persons entitled to receive them, the administrator in bank- ruptcy may reclaim them. The dissolution and liquidation of a juridical person are under the supervision of the court. The court may at any time of its own motion make any examination necessarj' for the above mentioned supervision. 83- The liquidators must give notice to the competent public authorities as soon as the liquidation is finished. — 23 — SECTION IV. PENALTIES. 84. A manager, a supervisor or a liquidator of a juridical person is liable to a penalty of from five to two hundred yen : — 1. If he omit.s to make any registration prescribed in this Chapter ; 2. If he violates the provisions of Art. 51, or if he makes any false entry in the inventory or the list of members ; 3. If in the cases mentioned in Arts. 6"] and 82 he obstructs any examination made by the com- petent public authorities or the court : 4. If. he makes false statements to the public authorities or a general meeting, or conceals tacts from them ; 5. If in violation of the provisions of Arts. 70 and 8 1 he omits to apply for an adjudication of bank- ruptcy ; 6. If he omits to give any public notice prescribed Jn Arts. 79 and 81, or if he gives a false public notice. 24 — CHAPTER III. THINGS. 85. Things in the sense of this law are corporeal things. S6. Land and things fixed to it are immovables. All other things are movables. Obligations performable to bearer are deemed to be movables. 87. If the owner of a thing attaches to it another thing owned by him for permanent use in connection with it, the thing attached becomes an accessory. The accessory thing is subject to all dispositions made of the principal thing. 88. Products obtained in the ordinary use of a thing are natural fruits. Money and other things received as consideration for the use of a thing are legal fruits. 89. Natural fruits belong to the person who has the right to take them at the time when they are severed from the principal thing. — 25 — Legal fruits are apportioned according to the dura- tion in days of the respective rights to receive. CHAPTER IV. JURISTIC ACTS. SECTION I. GENERAL PROVISIONS. 90. A juristic act whose intended effect is contrary to the public welfare or good morals is void. 91. If the parties to a juristic act have expressed an intention differing from a provision of anj' law or regulation not relating to the public welfare, such intention is to be followed. 92. If there is a custom differing from a provision of any law or regulation not relating to the public welfare, such custom is to be followed, if it is to be considered that the parties intended to be governed by such custom. — 26 — SECTION II. The expression of intention. 93- If a person makes an expression of intention know- ing that it is not his real intention, it is nevertheless valid. But it is void, if the other party knows or ought to know his real intention. 94. An expression of intention which to the knowledge of the other party is only feigned, is void. The invalidity of such expression cannot be set up against third persons acting in good faith. 95- An expression of intention is void, if made under a mistake as to an essential element of the juristic act ; but if the person who made the expression was grossly negligent, he cannot avail himself of such invalidity. 96. An expression of intention procured by fraud or coercion may be rescinded. If a third person has committed a fraud in respect to an expression of intention made to some person, it can only be rescinded, if the other party knew of the fraud. The rescission of an expression of intention pro- cured by fraud cannot be set up against third persons acting in good faith. - 27 — 97. An expression of intention made to a person at a distance takes effect from the time when the communi- cation thereof reaches him. The validity of an expression of intention is not affected, if the person who made it dies or becomes incapacitated after he has sent the communication. 98. If the other party is a minor or has been adjudged incompetent at the time when he receives the expres- sion of intention, such expression cannot be set up against him ; but this only applies until such time as his legal representative has knowledge thereof. SECTION III. REPRESENTATION. 99. An expression of intention made by a representative within the scope of his authority and purporting to be made on behalf of his principal* takes effect directly for and against the latter. This provision applies con-espondingly to an expression of intention made by a third person to a representative. 100. If a representative makes an expression of intention * The word " principal " denotes any person who is represented by another in a juristic act. — 28 — not purporting to be on behalf of another, he is deemed to liave made it on his own behalf ; but if the other party knows or ought to know that he acted for another person, the provisions of Art. 99, i apply. 101. If the validity of an expression of intention would be affected by any defect in the intention, or by fraud or coercion, or by knowledge or negligent ignorance of any circumstance, such fact is to be taken as it exists with reference to the representative. If a representative is charged with the doing of a specific juristic act, and does such act according to the directions of the principal, the latter cannot avail himself ol the ignorance of his representative in regard to a circumstance whicli he himself knew, or of which he was ignorant through negligence. 102. A representative need not be a person of full capacity. 103. A representative whose authority is not specified, has authority only to do the following acts : — 1. Acts for preservation ; 2. Acts for the use or improvement of the things or rights which form the subject of the repre- sentation, but without changing their nature. 104. A representative whose authority is founded upon a mandate may appoint a substitute only with the sane- — 29 — tion of the principal or in case of unavoidable necessity. los. A representative who in the case mentioned in the preceding article appoints a substitute is responsible to the principal for a proper appointment and for supervision. A representative who appoints a substitute designat- ed by the principal is responsible only in case he knew his unfitness or untrustworthness and omitted to inform the principal thereof or to revoke the substitution. 1 06. A legal representative may appoint a substitute, for whom he is responsible; but in case of unavoidable necessity he incurs only the responsibility specified in Art. 105, I. 107. A substitute within the scope of his authority represents the principal directly. A substitute has the same rights and duties as the original representative with regard to the principal and to third persons. 108. A person cannot in the same juristic act represent the other party or both parties ; but this does not apply to the performance of an obligation. 109. A person who holds out another to a third person as his representative is bound by all acts between such other and the third person within the scope of such authority. no. If a representative acts in excess of his authority, but the third person had reasonable grounds to believe that it was within his authority, the provisions of the preceding article apply correspondingly. 111. The right of representation is extinguished : — 1. By the death of the principal; 2. By the death of the representative or his being adjudged incompetent or bankrupt. The right of representation founded on a mandate is also extinguished by the termination of the mand- ate. 112. The extinction of the right of representation cannot be set up against a third person acting in good faith ; but this does not apply, if the third person is ignorant of the fact by his own negligence. II o- If a person without authority of representation makes a contract as representative, such contract has no effect as to the princioal, unless he ratifies it, A ratification or repudiation can only be set up against the other party, if it has been made to — 31 — him ; but this does not apply, if the other party knew the facts. H4. In the case mentioned in Art. 113 the other party may fix a reasonable period and call upon the principal to answer definitively whether he will ratify or not. If the principal does not give definitive answer within the period fixed, he is deemed to have refused to ratify. IIS. A contract made by a person without authority of representation can be rescinded by the other party so long as the principal has not ratified it; but this does not apply, if the other party knew at the time of the contract of the want of authority. 116. Unless a different intention is expressed, the effect of the ratification relates back to the time of the contract ; but this cannot impair the rights of third persons. 117. A person who makes a contract as representative of another is responsible at the option of the opposite party either for performance or for damage, if he cannot establish his right of representation, or if the principal does not ratify the contract. The foregoing provision does not apply, if the other party knew that the representative had no authority, or if he was ignorant of it through his own negligence, — 32 — or if the person acting as representative had not capacity for the act. ii8. The provisions of tlie foregoing five articles apply to a unilateral juristic act only if the other party consents that the act be done without the person acting as representative having authority as such, or if he does not dispute his authority. The same applies, when a unilateral juristic act is done to a person having no authority with his consent. SECTION IV. VOID AND VOIDABLE JURISTIC ACTS. 119. A void juristic act does not become valid by ratifi- cation; but if the parties concerned ratify it with know- ledge of its invalidity, they are deemed to have done a new act. 120. A voidable act can be rescinded only by the in- capacitated party or the party who has made the defective expression of intention or by a representative or successor of such persons. A juristic act done by a wife may also be rescinded by her husband. 121. An act which has been rescinded is deemed to have been void from the beginning; but the incapacitated — 33 — person is bound to make restoration to the extent to- which he is still enriched by the act. 122. If any person specified in Art. 120 ratifies a voidable act, it is deemed to have been valid from the beginning ; but the rights of third persons cannot be affected thereby. 123. If the other party to a voidable act is a determinate person, rescission or ratification of such act must be by an expression of intention made to him. 124. A ratification is valid only if it is made after the state of facts forming the ground of invalidity has ceased to exist. When a person adjudged incompetent acquires knowledge of the act after he has recovered his ca- pacity, he can ratify it only after acquiring knowledge^ The provisions of the two foregoing paragraphs do not apply to ratification by a husband or a legal repre- sentative. 125. If after the time when according to the preceding article a voidable act could be ratified, any of the following events takes place in regard to the act, it is deemed to be ratified, unless a reservation is expressed. 1. An entire or part performance; 2. A demand for performance ; 3. A novation ;* * See Arts. 513 ff. — 34 — 4. The givirg of security ; 5. An assignment of the rights acquired by the voidable act ; 6. A seizure under legal process. 126. If the right of rescission is not exercised within five years from the time when ratification could have been made, it is extinguished by prescription. The same applies, if twenty years have elapsed since the act was done. SECTION V. CONDITIONS AND TIME OF COMMENCEMENT OR ENDING. 127. An act subject to a condition precedent takes effect, when the condition happens. An act subject to a condition subsequent ceases to have effect, when the condition happens. If the parties to the act have expressed an intention that the effect of the happening of a condition shall relate back to a time before its happening, such intention is to govern. 128. Any party to a juristic act subject to a condition must not, while the condition is pending, do anything by which the benefits which the other party might deiive from the happening of the condition will be impaired. — 35 — I2g. The rights and duties which the parties have, while the condition is pending, may be dealt with, inherited, protected or secured according to the general provi- sions of the law. 130. If the party whose interests would be adversely affected by the happening of the condition inten- tionally prevents it from happening, the other party may treat it as if it had happened. 131- When the condition has already happened at the time of the juristic act, the latter is unconditionally valid, if the condition is precedent, and is void, if the condition is subsequent. When it is certain at the time of doing the juristic act that the condition will not happen, the act is void, if the condition is precedent, and unconditionally valid, if the condition is subsequent. In the cases mentioned in the foregoing two para- graphs the provisions of Arts. 128 and 129 apply, so long as the parties do not know whether the con- dition has happened or will not happen. 132. A juristic act upon an unlawful condition, or condi- tioned upon the not doing of an unlawful act, is void. 133- An act upon a condition precedent which is im- possible is void. An act upon a condition subsequent which is im- possible is unconditionally valid. - 36 - 134. An act upon a condition precedent which depends entirely upon the will of the debtor is void. 135- If a time of commencement* is annexed to a juristic act, performance of the act cannot be demanded until such time has arrived. If a time of endingt is annexed to|a juristic act, the effect of the act ceases when such time arrives. 136. It is presumed that a time for commencement or ending is annexed for the benefit of the debtor. The benefit of such a time may be waived, but this will not affect any benefit which would accrue therefrom to the other party. 137- In the following cases the debtor cannot take ad- vantage of a time of commencement or ending : — 1. If he has been adjudged bankrupt ; 2. If he has destroyed or diminished the security; 3. If he has not given security when he ought. CHAPTER V. PERIODS OF TIME. 138. The manner of computing periods of time is govern- * dies a quo. t dies ad queiii. — 37 — ed by the provisions of this Chapter, unless it is otherwise provided by law or regulations, by an order of the court or in the juristic act itself. 139- If the period is measured in hours, it begins to run at once. 140. If the period is measured in days, weeks, months or years, the first day of the period is not included ; but this does not apply, if the period begins between mid- night and one o'clock a. m. 141. In the case mentioned in the preceding article the period ends at the end of the last day. 142. If the last day of a period is a great festival day or a Sunday or any other holiday, and it is customary not to do business on such day, the period ends on the next day. 143- If the period is measured in weeks, months or years, it is to be calculated according to the calendar. If the period is not computed from the beginning of a week, month or year, it ends on the day preceding that day of the last week, month or year which corresponds to that on which it began. If in a period measured in months or years there is no corresponding day in the last month, the last day of such month is the day of ending. — 38 — CHAPTER VI. Pk?:SCRIPTION, SECTION I. GENERAL PROVISIONS. 144. The effect of prescription relates back to the day from which its period is computed. 145- If the party concerned does not claim the benefit of prescription, the court cannot make it the ground of its judgment. 146. The benefit of prescription cannot be waived before- hand. 147- Prescription is interrupted : — 1. By a demand; 2. By the levy of an execution or attachment or by a judicial order making a provisional disposition; 3. By an acknowledgment.* 148. The interruption mentioned in the preceding article has effect only as between the parties and their successors in title. That is, an acknowledgment hj the debtor of the creditor's right. — 39 — 149- A demand by an action has no effect to interrupt prescription, if the action fails or is discontinued. ISO. A demand by a judicial summons to pay has no effect to interrupt prescription, if pendency of the proceeding ceases. 151. A judicial summons for the purpose of an amicable settlement has no effect to interrupt prescription,, if the other party does not appear, or no .settlement is effected, and no action is brought within one month. The same applies, if the parties appear voluntarily,, but a settlement is not effected. 152. Participation in bankruptcy proceedings has no effect to interrupt prescription, if the creditor afterwards with- draws from the proceedings, or his claim is disallowed.. 153- A demand of performance has no effect to interrupt prescription, unless within six months legal proceed- ings are taken to enforce the claim, or a summons for an amicable settlement is issued, or both parties volun- tarily appear for that purpose, or the creditor par- ticipates in bankruptcy proceedings, or an execution or an attachment is levied, or a provisional order of dispos- ition made. — 40 — 1 54. The levy of an execution or attachment or a pro- visional order of disposition has no effect to interrupt prescription, if it is vacated on the application of the person for whom it was granted, or because it was not authorized by the provisions of law. 155- The levy of an execution or attachment, or a provis- ional order of disposition not made against the person in whose favour prescription runs, has no effect to interrupt prescription, until he has been notified of it. iS6. In order to make an acknowledgement effectual to itnerrupt prescription, it is not necessary that the maker should have legal capacity or authority in respect to the disposal of the right of the other party. 157- From the time when the cause of interruption ceases, the interrupted prescription begins again to run. A prescription interrupted by legal proceedings begins again to run from the time when the judgment becomes finally binding. 158. Against a minor or a person adjudged incompetent, ■who within six months before the period of prescrip- tion would end is without a legal representative, the pre- scription is not completed until six months after the time when he acquires legal capacity, or a legal re- presentative has assumed his functions. — 41 — 159- As to obligations existing in favour of an incapa- citated person against his father, mother or guardian who has managed his property, prescription is not com- pleted until six months after he has acquired capacity, or a new legal representative has assumed his functions. As to obligations existing in favour of a wife against her husband prescription is not completed until six months after the dissolution of the marriage. 1 60. As against an estate which forms the subject of a succession, prescription is not completed until six months after the time when the heir is ascertained, a manager is appointed, or an adjudication of bankruptcy is made. 161. If at the time when the prescription would end, an interruption of the prescription is prevented b}' the operation of natural forces* or by inevitable accident, prescription is not completed until two weeks after the time when such obstacle has ceased to exist. SECTION II. ACQUISITIVE PRESCRIPTION. 162. A person who during twenty years with the inten- " This is nearly equivalent to what is callnd in English law "the act of God." — 42 — tion to be owner has held undisturbed and open pos- session of a thing belonging to another acquires the ownership of it. A person who during ten years with the intention to be owner has held undisturbed and open possession of an immovable belonging to another acquires the owner- ship of it, if he acted at the beginning of his possession in good faith and without fault. 163. A person who has exercised any sort of property right other than ownership undisturbedly and openly with the intention to have it for himself, acquires such right after twenty or ten years according to the dis- tinction mentioned in the preceding article. 164. The prescription mentioned in Art. 162 is interrupt- ed, if the possessor voluntarily abandons his possession, or if he is turned out of possession by another. 165. The provisions of the preceding article apply corres- pondingly to the case mentioned in Art. 163. SECTION III. EXTINCTIVE PRESCRIPTION. 166. Extinctive prescription begins to run from the time when the right can first be exercised. — 43 — This provision does not prevent the running- of acquisitive prescription, from the time of possession, in favour of a third person who possesses a thing being the subject of a right to which a time of commencement or a condition precedent is annexed ; but the person entitled can ahvays demand an acicnowledgment by the possessor in order to interrupt the prescription. 167. An obligation js extinguished, if it is not exercised for ten years. Property rights other than obligations and owner- ship are extinguished, if they are not exercised for twenty years. 168. An obligation whose subject is the payment of money by instalments is extniguished, if it is not exercised for twenty years from the time for the first payment. The same applies, if ten years have elapsed since the time for the last payment. The creditor to whom such money is due may at any time demand from the debtor a written acknow- ledgement of the debt, in order to obtain evidence of the interruption of prescription. 169. If an obligation whose subject is the delivery of money or any other thing within one year or less is not exercised for five years, it is extinguislied. 170. In the following cases obligations are extinguiihed, if they are not exercised for three years : — - 44 — r. Obligations in favour of physicians, midwives and apothecaries for attendance, services or medicines ; 2. Obligations in favour of gisM,* master-car- penters and contractors for their work ; but the prescription is computed only from the time v.'hen the work is finished. 171. The responsibility of lawyers, notaries and executive officers of courts as to papers which they have received in their capacity as such, ceases after three years, in the case of lawyers from the time when the business was finished, in the case of notaries and execu- tive ofificers from the time when they have performed their duties. 172. Obligations in favour of lawyers, notaries or execu- tive officers relating to their functions are extinguished, if they are not exercised for two years from the time when the business out of which the obligation arose was finished ; but an obligation arising from any particular fact occuring in the course of such business is extinguished after five years, even though such period of two years has not yet elapsed. 173. In the following cases obligations are extinguished, if they are not exercised for two years : — "^ Gislii ^ gjp means a scientific e.'cpert in the erection of buildings or other structures, such as an engineer or architect. — 45 — 1. The price of products or goods, sold by the producer or a wholesale or retail dealer ; 2. Obligations arising from the services of me- chanics or workmen employed in manufactures ; 3. Obligations in favour of a keeper of a school or boarding school or of a teacher or a master, for instruction, clothing, board or lodging of a pupil or apprentice. 174. In the following cases obligations are extinguished, if they are not exercised for one year : — 1. Wages of a person hired, if fixed by the month or a shorter time ; 2. Wages of a labourer or gei'nin* and the price of things supplied by them ; 3. Freight ; 4. Charges for lodging, food and drink or hire of rooms, entrance fees, the price for things con- sumed and expenditures by the keeper, in an inn, restaurant, hired roomf or place of amusement ; 5. A charge for the hire of a movable. * geittin are actors, danciDg girls and such like public performers, f That is, rooms hired for a special occasion, e. ff. for a meeting, a feast etc. — 46 — BOOK II. REAL RIGHTS. CHAPTER I. GENERAL PROVISIONS. 175- Real rights other than those specified in this law or in other laws cannot be created. 176. The creation or the transfer of a real right takes effect from the mere expression of intention of the parties concerned. 177. The acquisition or loss of, or any alteration in a real right in an immovable can be set up against third persons only if such fact has been registered according to the provisions of the Law of Registration. 178. The assignment of a real right in a movable can be set up against third persons only if the thing has been delivered. 179. If the ownership of and any other real right in the same thing become vested in the same person, the — 47 — latter right is extinguished ; but this does not apply, if such thing or such right is the subject of a right of a third person. If any real right except ownership and a right of another person, the subject of which is such real right, becomes vested in the same person, such other right is extinguished. In such case the proviso of the pre- ceding paragraph applies correspondingly. The provisions of the preceding article do not apply to a possessory right. CHAPTER II. POSSESSORY RIGHT. SECTION I. ACQUISITION OF A POSSESSORY RIGHT. 1 80. A person acquires a possessory right by holding a thing with the intention of doing so for himself. 181. A possessory right may be acquired through a repre- sentative. 182. An assignment of a possessory right is effected by the delivery of the thing possessed. — 48 — If the assignee or his representative is already hold- ing the thing, the assignment of a possessory right may be made by a mere expression of intention by the parties. 183. If a representative expresses an intention to hold a thing which he has in his own possession thereafter for the principal, the latter acquires thereby a possessory right. 184. When possession of a thing is held through a re- presentative, if the principal directs the representative to hold possession thereafter for a third person, such third person acquires the possessory right upon consent- ing thereto. 185. When in consequence of the nature of his title a possessor holds without the intention of being owner, he can change the nature of his possession only by a notice to the person under whom he holds, that he intends to hold as owner, or by beginning a new hold- ing under a new title with the intention of holding as owner. 186. It is presumed that a possessor possesses with the intention of holding as owner, in good faith, un- disturbed and openly. If it is proved that a person has possessed a thing at two different times, it is presumed that his possession has continued during the interval. — 49 — 187. The successor of a possessor can rely at his option either upon his own possession only or upon his own possession together with that of his pre- decessor. In the latter case he also succeeds to all defects in his predecessor's possession. SECTION II. THE EFFECT OF A POSSESSORY RIGHT. It is presumed that the possessor has lawfully the right which he exercises over the thing possessed. 189. A possessor in good faith acquires the fruits of the thing possessed. If a possessor in good faith is defeated in a peti- tory* action, he is deemed to have been a possessor in bad faith from the time of the commencement of the action. 190. A possessor in bad faith must restore the fruits, and must account for the value of those which he has consumed or by his fault damaged or omitted to secure. * See Art. 202. — so — This provision applies correspondingly to a person who possesses by force or clandestinely. 191. If the thing possessed is lost or damaged by a cause attributable to the possessor, a possessor in bad faith is liable to the person who reclaims the thing for full damages, and a possessor in good faith is liable only so far as he is presently enriched by reason of such loss or damage ; but a possessor who has not the in- tentitm to hold as owner is liable for all damages even tho.gh he acts in good faith, 192. If a person without disturbance and openly begins to possess a movable thing in good faith and without fault, he acquires at once the right exercised by him over the thing. 193- If in the case mentioned in the preceding article the thing is one which has been stolen or lost, the party wronged or the loser may claim the restoration of the thing from the possessor within two years from the time of the theft or loss. 194. If the possessor has acquired the thing stolen or lost in good faith by purchase at an auction or in a public market or from a trader who deals in such wares, the person wronged or the loser can reclaim it from the possessor only on condition that he repays to the possessor the amount which the latter has paid for it. — Sl- ips- A person who has possession of an animal other than a domestic animal, which was formerly kept by another person, acquires the right which he exercises over such animal, if he began his possession in good faith, and the former keeper of the animal does not reclaim it within one month from the time when it escaped. 196. When the possessor of a thing restores it, he is entitled to reimbursement from the person who re- claims it for whatever amount he has expended on its preservation and for other necessary expenses ; but if the possessor has acquired the fruits of the thing, the ordinary necessary expenses fall upon him. If the possessor has expended money in repairing the thing, or incurred other beneficial expenses for it, provided that an increase of the value of the thing still exists therefrom, he is entitled against the person who reclaims it to the amount either of such ex- penditure or of the increase of value at the latter's option. But as against a possessor in bad faith the court may on the application of the person reclaiming grant him a reasonable time for payment. 197. A possessor may bring a possessory action* as pro- vided in the following five articles. This applies also to a person who holds possession for another. * See Art. :d02. — 52 — igS. If a possessor is disturbed in his possession, he may by an action for the maintenance of possession claim the stoppage of the disturbance and compensation for damage. 199. If there is danger that his possession is about to be disturbed, a possessor may by an action for the pro- tection of possession claim the prevention of such dis- turbance or security for damages. 2CO. If the possessor is dispossessed by force, he may by an action for the recovery of possession claim the restoration of the thing and compensation for damage. Against a singular successor of a forcible dis- possessor an action for the recovery of possession will not lie, unless he had knowledge of the fact of the dispossession. 201. An action for the maintenance of possession must be brought while the disturbance continues, or not later than one year after it has ceased. But if the thing poss- essed is damaged by any construction made upon it, the action cannot be brought after one year has elapsed since the beginning of such construction, or after it is completed. An action for the protection of possession can be brought at any time while the danger continues ; but if the danger arises from any construction, the pro- viso of the preceding paragraph applies. — 5o — An action for the recovery of possession must be brought within one year from the time of dis- possession. 202. A possessory action and a petitory action* do not exclude each other. A possessory action cannot be decided upon grounds relating to the right itself. SECTION III. EXTINCTION OF A POSSESSORY RIGHT. 203, A possessory right is extinguished, if the possessor abandons the intention to possess, or if he loses the detentionf of the thing, unless he brings an action for the recovery of possession. 204. If the possession is held through a representative, the possessory right is extinguished : — I. If the principal abandons the intention to have the representative hold possession ; * Petitory action, honJcen no nttae i^H/'fS, is any action founded upon the right itself, k. g. upon the right of ownership or superficies etc. Possessory action, senyu no uttae i5'^^ ISi means an action based on the mere fact of possession. ■(■ Detention means any physical hoding of a thing. — 54 — 2. If the representative expresses to the principal his intention, thereafter to hold for himself or for a third person ; 3. If the representative loses the detention of the thing possessed. A possessory right is not extinguished by the extinc- tion of the authority of the representative. SECTION IV. QUASI-POSSESSION. 205. If a person exercises a property right with the intention to have it for himself, the provisions of this Chapter apply correspondingly. CHAPTER III. OWNERSHIP. SECTION I. THE EXTENT OF OWNERSHIP. 206. The owner has the right, subject to the restric- — 55 — tions imposed by law or regulations, freely to use the thing, to take the profits of it and to dispose of it. 207. The ownership of land, subject to the restrictions imposed by law or regulations, extends above and below the surface. 20S. If several persons divide a building among them- selves, so that each owns a part of it, those parts of the building and its appurtenances which are used in common, are presumed to be owned in common. The expenses of repairs of the parts held in common, and charges affecting such parts, are to be borne in proportion to the values of the shares of the co-owners, 209. If an owner of land erects or repairs any wall or building on or near the boundary line, he may make use of adjoining land so far as necessary for the pur- poses of such erection or repairs ; but he cannot enter upon the dwelling house of a neighbour' without the latter's consent. If in such case the neighbour sustains any injury therefrom, he may claim compensation. 210. If land is so surrounded by other land that it has- no access to the public highway, the owner of the former land may pass over the latter land to reach the highway. The same applies, if access to the highway can only be had over a lake, marsh, river or canal, or the - S6 - sea, or if there is a steep slope with a considerable difference of level between the land and the highway. 21 I In the cases mentioned in the preceding article the locality of the way and the manner of its construction must be so chosen as to meet the needs of the person entitled thereto, and at the same time to cause as little injury as possible to the surrounding land. If necessary, the person entitled may construct a road for passage. The person entitled to passage must pay a com- pensation for any injury arising to the servient land. Such compensation, except for damage done by the construction of a road, can be made by annual payments. 213. If in consequence of a partition of land a part thereof is left without access to the highway, the owner of such part has a right of passage to the highway only through land owned by the other persons who were parties to the partition. In such case no compensation need be paid. These provisions apply correspondingly, if the owner of land alienates a part of it. 214. The owner of land must not obstruct the natural flow of water from adjoining land. — 57 — 215. If by reason of some extraordinary event the flow of the water is obstructed upon the lower land, the owner of the higher land may at his own expense construct any works necessary for the off-flow of the water. 216. If land is injured or endangered by works constructed upon other land for collecting, discharging or conducting water, being in bad condition, or by water accumulating, the owner of the former land may require the owner of the latter to make repairs or provide for the ofl-fiow of the water, and, if necessary, to construct works for protection. 217. If in the cases mentioned in the preceding two articles there is any special custom as to defrayment of the expenses, such custom is to govern, 218. The owner of land must not construct any roof or other works so that rain water falls directly upon adjoining land. 219. The owner of land on which there is a ditch or other water course must not change the direction or the width of the water course, if the opposite bank belongs to another person. If both banks belong to the owner of the land on which the water-course is, he may change its direction - 58 - or width, but the water must be restored to its natural course at the place of exit. If in such a case there is a different custom, such custom is to govern. 220. The owner of land, in order to drain wet land or to get rid of waste water used for domestic, agricultural or industrial purposes, may conduct water through lower land to a public highway, water course or drain ; but the locality and manner of construction of the conduit must be so chosen as to do the least possible damage to the lower land. 221. The owner of land may use for the passage of water works constructed by the owner of any higher or lower land. A person who so uses works constructed by another must bear the expenses of their construction and preservation in proportion to the benefit which he derives therefrom. 222. If the owner of land on which there is a water couise has occasion to construct a dam, he may join it to the opposite bank ; but he must pay compensation for any damage arising therefrom. If a~ part of the land on which the water course is, belongs to the owner of the opposite bank, the latter may also use the dam. In such case the expenses are to be apportioned according to the provisions of the preceding article. — 59 — 223- The owner of land may at the joint expense of him- self and the owner of the adjoining land set up things to mark the boundary. 224. The neighbours must bear equally the expenses of constructing and maintaining the boundary marks ; but the expense of a survey is to be divided in pro- portion to the areas of the respective lands. 225. If between two buildings belonging to different owners there is land which is not built upon, either owner has a right to set up a fence on the boundary line at their joint expense. If the parties cannot agree, the fence shall be made of boards or bamboos and shall be six shaku high. 226. Both neighbours must bear the expense of the construction and preservation of the fence equally. 227. Either of the neighbours has the right to make the fence of better materials or higher than is provided in Art. 225, 2, but the additional expense of doing so he must bear himself. 228. If there is a custom different from the provisions of Arts. 225-227, such custom is to govern. 6o 229. Boundary marks, fences, walls and ditches made on the boundary line are presumed to be owned in common by the two neighbours. 230. If a wall standing on a boundary line forms a part of a building, the provisions of Art. 229 do not apply. Nor do they apply to that portion of a wall between two buildings of unequal height, which overtops the lower building, unless it is a wall built for protection aeainst fire. 231. Each neighbour has a right to carry up a common wall higher, but if the wall cannot bear such structure, he must strengthen or rebuild it at his own expense. The addition made to the height of the wall under the foregoing provisions is in the sole ownership of the maker. 232. If in the case mentioned in the preceding article the neighbour is injured, he may claim compensation. If the branches of bamboos or trees on adjoining land extend over the boundary line, the owner of such bamboos or trees may be required to cut them off. If the roots of bamboos or trees on adjoining land extend over the boundary line, they may be cut off and taken. 6i 234. Buildings must not be erected at a distance of less than one shaku five sun from the boundary line. If a person is erecting a building in contravention of the foregoing provision, the owner of the neigh- bouring land may have it stopped or changed ; but if a year has elapsed since the commencement of the building, or if the building has been completed, he can only claim damages. 23s. A person who makes at a distance of less than three shahi from the boundary line a window or veranda which overlooks the curtilage of a dwelling house, must provide a screen. The distance is computed perpendicularly to the boundary line from that point of the window or veranda which is nearest to the neighbouring land. 236. If in the cases mentioned in Arts. 234 and 235 there is a different custom, such custom is to govern. 217- If a well, a cistern, a cesspool or a receptacle for manure is dug, it must not be at a distance of less than six shakti from the boundary line ; or if a pond, a cellar or a privy vault is dug, it must not be at a distance of less than three shaku from the boundary line. Water pipes must not be laid or ditches dug at a distance of less than one half of their depth from the boundary line ; but in no case need the distance be more than three shahi. — 62 — 238. A person who makes any one of the works mention- ed in Art. 237 near to the boundary line, must use due care to prevent the earth or sand from caving in or the water or filth from percolating through. SECTION II. THE ACQUISITION OF OWNERSHIP, 239- The ownership of a movable thing which has no owner is acquired by possessing it with the intention of being owner. An immovable thing which has no owner falls to the ownership of the State. 240. The finder of a lost article acquires the ownership of it, if the owner cannot be ascertained within one year after public notice has been given according to the provisions contained in special laws. 241. The finder of hidden property acquires the owner- ship of it, if the owner cannot be ascertained within six months after public notice has been given accord- ing to the provisions contained in special laws. But if it is found in a thing belonging to another, the - 63 - finder and the owner of such thing acquire the owner- ship in equal shares. 242. The owner of an immovable thing acquires the ownership of a thing which is attached to it as an accessory ; but this does not affect the rights of a person who by virtue of a special title has attached the thing to the other. 243- If several movable things belonging to different owners are attached to each other so that they cannot be separated without injury, the ownership of the thing formed by the combination belongs to the owner of the principal thing. The same applies, if separation can be made only at an excessive cost. 244. If among movable things so attached together there is no distinction of principal and accessory, the owners of the separate things become co-owners of the thing formed by the combination in proportion to the values which the separate, things had at the time of attach- ment. 245. The provisions of the two preceding articles apply correspondingly, when two things belonging to dfferent owners are mixed together so that distinction is im- possible. 246. If a person has worked up a movable thing of - 64 — another,* the product belongs to the owner of the materials ; but if the value created by the work largely exceeds the value of the materials, the worker acquires the ownership of the product. If the worker has supplied a part of the materials, he acquires the ownership of the product only in case the value of the materials supplied by him together with the value of his work exceeds the value of the materials supplied by the other. 247. If the ownership of a thing is extinguished under the provisions of Arts. 242-246, all other rights in the thing are also extinguished. If the owner of such a thing becomes the owner of the thing created by combination, mixture or specifica- tion, the rights mentioned in the preceding paragraph continue as to the new thing ; if he becomes co-owner, they continue as to his portion, 248. A person, who has suffered a loss by the application of the provisions of any of the preceding six articles may claim compensation according to the provisions of Arts. 703 and 704. * This is nearly the same as wliat is called specification in Eoman law. Hereafter that word will be used to designate the manner of acquisition of oivneuship described in Art. 246. -6s - SECTION III. CO-OWNERSHIP. 249. Each co-owner may use the whole of the thing held in common in proportion to his share. 250. It is presumed that the shares of the co-owners are equal. 251. No co-owner has the right to make any alteration in the thing held in common without the consent of the other co-owners. 252. Except in the case mentioned in Art. 251, matters relating to the management of the thing held in com- mon are decided by the majority in value of the co-owners, but each co-owner has the right to do acts of preservation. 253- Each co-owner must pay the expenses of the management of the thing held in common, and must bear the charges upon it, in proportion to his share. If one co-owner neglects to perform these obligations for one year, the other co-owners have a right to acquire his share on payment of a reasonable com- pensation. — 66 — 254- If an obligation exists in favour of one co-owner against another in regard to the thing held in common, the former may exercise his right against a singular successor of such other co-owner. 255- If a co-owner renounces his share or dies without an heir, his share accrues to the others. 256. Each co-owner has a right to demand partition of the thing held in common, but it may be provided by contract that partition shall not be made for a period not exceeding five years. This contract may be renewed, but its duration from the time of renewal must not exceed five years. 257. The provisions of the preceding article do not apply to such things held in common as are mentioned in Arts, 208 and 229. 258. If the co-owners cannot agree, application may be made to the court for partition. If in such case partition of the thing itself cannot be made, or if there is reason to apprehend that by partition the value of the thing would be considerably diminished, the court may order the thing to be sold by auction. 259- If an obligation exists in favour of one co-owner — 67- against another relating to the co-ownership, the former may at the time of partition claim performance out of the share falling to his debtor. The creditor may, if necessary for such performance, demand a sale of the part of the thing held in common falling to his debtor's share. 260. A person who has a right in the thing held in common, or any creditor of a co-owner, may at his own expense intervene in the partition. If in disregard of an application for intervention made according to the provisions of the preceding paragraph, partition is effected without waiting for the intervention, the partition cannot be set up against the person who made the application for intervention. 261. Each co-owner is bound in proportion to his share by the same warranties as a seller in respect to the things which the other co-owners have received under the partition. 262. After the partition each party must preserve all documents relating to the the thing which he has received. Documents relating to a thing partitioned among ail or several of the co-owners must be preserved by the person who has received the largest share. If there is no such person, the parties to the partition must upon consultation appoint a custodian. If ithey cannot agree, he must be appointed by the court. — 68 — The custodian of a document must on demand allow the use of the document to the other parties to the partition. 263. As to an iriaikefi'^ which has the nature of co- ownership the provisions of this Section apply in addition to the customs of the particular district. 264. The provisions of this Section apply correspondingly, where several persons hold in common a property right other than ownership, except as othervvise pro- vided by law or regulations. CHAPTER IV. SUPERFICIES. 265. A superficiary has the right to use another person's land for the purpose of owning thereon structures or bamboos and trees. 266. If a superficiary is bound to pay a fixed ground * IHailcen means generally a right held by a whole village to take wood or grass from ceituin liird, especially forests. See also Art. 294. -69- rent to the owner oi the land, the provisions of Arts.. 274-276 apply correspondingly. Also the provisions as to the contract of hiring, apply correspondingly to the rent. 267. The provisions of Arts. 209-238 apply correspond- ingly to the relations between several superficiaries and between a superficiary and the owner of the land ; but the presumption mentioned in Art. 229 applies to a superficiary only as to works which have been con- structed after the creation of the superficies. 268. If no time for the duration of the superficies has been fixed in the act by which it was created, and there is no special custom to the contrary, the super- ficiary may surrender his right at any time ; but if he is bound to pay a ground rent, he must give notice at least one year beforehand or pay one full year's rent. If the superficiary does not surrender his right according to the foregoing provisions, the court may on the application of a party interested fix the duration of the right at from twenty to fifty years, taking into consideration the kind and condition of the structures- or bamboos and trees,- as well as the circumstances existing at the time when the right was created. 269. At the termination of the superficies the super- ficiary, on restoring the land to its former condition,. may take away structures or bamboos and trees. But if the owner of the land gives notice that he desires to buy such things, and offers their present — 70 — value, the superficiary cannot refuse such offer except "for some just reason. If there is a custom different from the provisions of the preceding paragraph, such custom is to govern. CHAPTER V. EMPHYTEUSIS. 270. An emphyteuta has a right to carry on agriculture -or cattle raising on the land of another on payment of a rent. 271. An emphyteuta must not make any change which will cause permanent damage to the land. 272. An emphyteuta may assign his right, or may let the land for the purpose of agriculture or cattle raising within the duration of his right; unless that has been ■forbidden by the act of creation of the right. As to the duties of the emphyteuta, in addition to the provisions of this chapter and to any provisions contained in the act of creation, the rules relating to hiring apply correspondingly. — 71 — 274. Even though the emphyteuta suffers a loss of profits by vis major, he has no claim for the remission or reduction of his rent. 275. If the emphyteuta because of vis major receives no profits at all for three consecutive years or more, or for five consecutive years or more receives only a profit which is less than his rent, he may surrender his right. 276. If the emphyteuta fails to pay his rent for two consecutive years or is adjudged bankrupt, the land- lord may claim the extinguishment of the emphyteusis. 277. If there is any custom different from the provisions of the preceding six articles, such custom is to govern. 278. The duration of an emphyteusis is from twenty to fifty years. If it is created for a longer period than fifty years, it is reduced to fifty years. An emphyteusis may be renewed, but not for more than fifty years from the time of renewal. If the period of duration has not been fixed in the act of creation, it is, except so far as there is a different special custom, to be thirty years. 279. The provisions of Art. 269 apply correspondingly to an emphyteusis. — 72 — CHAPTER VI. SERVITUDES. 280. The holder of a servitude has a right to use another person's land for the benefit of his own land in accordance with the purpose specified in the act of creation ; but the provisions of Chapter III, Section I relating to public welfare must not be contravened. 281. The servitude, being appurtenant to the ownership of the dominant land, is transferred with it, and is the subject of rights which others have in the dominant land, unless otherwise provided in the act of creation. A servitude cannot be assigned or made the subject of other rights apart from the dominant land. 282. One co-owner cannot have a servitude existing" for the benefit of or in the land extinguished as to his part. If land is partitioned, or a part of it alienated, the servitude exists for or in each part, unless it from its nature relates only to some particular part of the land. 283. Only a continuous and visible servitude can be acquired by prescription. >^^ , 7o — 284. If one co-owner has acquired a servitude by pre- scription, such acquisition enures to the benefit of all the co-owners. An interruption of prescription against co-owners is effective only if it is made against all the co-owners who exercise the servitude. If there are two or more co-owners exercising the servitude, and there is a cause for the suspension of prescription in regard to one co-owner, prescription will nevertheless continue to run in favour of all. 285. If on land subject to a servitude for the use of water there is not suflficient water for the requirements of the dominant and the servient land, the water is to be used first for domestic purposes according to the requirements of both pieces of land and the remaining water for other purposes. But this rule does not apply, when it has been otherwise provided by the act of creation. If two or more servitudes for the use of water have been created in the same servient land, the holder of a later servitude must not interfere with the use of the water by the holder of a prior servitude. 286. If the owner of the servient land takes upon himself, either by the act of creation or by a special agreement, a duty to build or repair structures at his own expense for the exercise of a servitude, such duty devolves upon the singular successor of the owner of the servient land. — 74 — 287. The owner of the servient land may at any time free himself from the duty mentioned in the preceding article by abandoning to the holder of the servitude the ownership of such portion of the land as is necessary for the servitude. 288. The owner of the servient land may use structures put upon his land for the purposes of the servitude, b.it only so as he does not thereby interfere with the exercise of the servitude. In such case the owner of the servient land must bear a part of the expense of the construction and preservation of the structures in proportion to the benefit accruing to him therefrom. 289. If the possessor of servient land has exercised his possessions under the conditions necessary for acquisi- tive prescription, the servitude is extinguished by prescription. 290. The extinctive prescription mentioned in the pre- ceding article is interrupted by the holder of the servitude exercising his right. 29 1. The period for extinctive prescription specified in Art. 167, 2 is computed, as to a discontinuous servitude from the time when the holder exercised it last, and as to a continuous servitude from the time when a fact interfering with the exercise of the servitude occurred. — 75 — 292. If the dominant land belongs to two or more co- owners, and an interruption or suspension of the pres- cription occurs in favour of one of them, such inter- ruption or suspension takes effect also in favour of the other co-owners. 293- If the holder of a servitude omits to exercise a part of his right, such part only is extinguished by pres- cription. 294. As to an irwikeii* not having the nature of co-owner- ship the custom of each locality is to govern ; also the provisions of this Chapter apply correspondingly. CHAPTER VII. POSSESSORY LIENS. 29s. If the possessor of a thing belonging to another has an obligation in his favour relating to the thing possessed, he may retain the thing, until the obligation IS performed, unless the obligation is not yet due. The foregoing provision does not apply, if the pos- session began by an unlawful act. * See Alt. 263. -76- 296. The lienholder may exercise his right against the whole of the thing retained, until the obligation has been wholly performed. 297. The lienholder may take the fruits of the thing re- tained, and may apply them to the performance of the obligation in preference to other creditors. Such fruits must first be applied upon the interest on the obligation, and if there is any surplus, that must be applied upon the principal. 298. The lienholder must keep the thing retained with the care of a good manager. The lienholder must not use or let the thing retained, or dispose of it by way of security, without the consent of the debtor ; but this does not apply to such use as is necessary for the preservation of the thing. If the lienholder acts contrary to these provisions, the debtor may claim the extinguishment of the lien. 299. If the lienholder incurs necessary expenses in respect to the thing retained, he may require the owner to re- imburse him. If the lienholder incurs beneficial expenses in respect to the tiling retained, and an increase in the value of the thing therefrom remains in existence, he may require the owner to pay either the amount of the ex- penses or such increased value at the latter's option; — 77 — but the court may on the application of the owner al- low him a reasonable time for doing so. 300. The exercise of the right of lien does not prevent the running of extinctive prescription against the ob- ligation. 301. The debtor may claim the extinguishment of the right of lien on giving proper security. 302. A lien is extinguished by the loss of possession of the thing ; but this does not apply to the case where the thing retained is let or pledged according to the provisions of Art. 298, 2. CHAPTER VIII. PREFERENTIAL RIGHTS.* SECTION I. GENERAL PROVISIONS. 303- A holder of a preferential right has according to * These rights somewhat resemble what in the Knglish law are called equitable liens, but are not exactly the same. - 78 - the provisions ot this law or other laws a right in the property of his debtor to receive therefrom per- formance of an obligation due to him in preference to other creditors. 304. A preferential right can also 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 pre- ferential right must make a judicial seizure of such money or thing, before it is paid or delivered. This applies to the consideration for a real right which the debtor has created in the subject of the pre- ferential right. 305. The provisions of Art. 296 apply correspondingly to preferential rights. SECTION II. CLASSES OF PREFERENTIAL RIGHTS. SUBSECTION I. GENERAL PREFERENTIAL RIGHTS. 306. A person in whose favour an obligation exists based — 79 — upon any of the following grounds has a preferential right in the whole property of the debtor : — 1. Expenses for the common benefit ; 2. Funeral expenses ; 3. Wages of employees ; 4. Supplies of the daily necessaries of life. 307- The preferential right for expenses for the common benefit is for expenses incurred for the common bene- fit of the creditors in regard to the preservation, liquid- ation or distribution of the debtor's property. If any such expense was not incurred for the benefit of all the creditors, the preferential right only exists as against those creditors for whose benefit it was in- curred. 308. The preferential right for funeral expenses is for such expenses as are accordant to the station in life of the debtor. This preferential right exists also for such funeral expenses incurred by the debtor as are accordant to the station in life of a relative or a member of his house whom the debtor was bound to support. 309- The preferential right on account of wages of em- ployees is for wages due to an employee of the debtor for six months back ; but the amount is limited to fifty yen. 310, The preferential right on account of the supply of — 8o — the daily necessaries of life is for supplies for six months back of food, drink, fire wood, charcoal and oil, necessary for the living of the debtor, of relatives and members of his house, who live with him and whom he is bound to support, and of their servants. SUBSECTION II. PREFERENTIAL RIGHTS IN MOVABLES, 3"- A person in whose favour an obligation exists based upon one of the following grounds has a preferential right in particular movables of the debtor : — 1. Hiring of an immovable; 2. Lodging in an inn ; 3. Transportation of travellers or goods ; 4. Official misconduct by public officers ; , 5. Preservation of movables ; 6. Sale of movables ; 7. Supply of seeds, young plants and manure ; 8. Agricultural or industrial services. 312. The preferential right on account of the hiring of an immovable is for the hire of the immovable and for other obligations of the hirer connected therewith, and is in the movable things of the hirer. — Si — 313- The preferential right of the lessor of land is in such movables as have been brought by the lessee upon the land or into buildings subservient to the use of the land, or as are designed for the use of such land, and is in such fruits of the land as are in the possession of the lessee. The preferential right of the lessor of a building is in such movables as have been brought into the build- ing by the lessee. 314- If the lease is assigned, or there is a sub-lease, the preferential right of the original lessor extends to the movables of the assignee or sub-lessee. The same ap- plies to the money which the assignor or the sub-lessor is to receive. 315- In case of a general liquidation of the property of the lessee the preferential right of the lessor is only for the rent of the last preceding, the current and the next following rent period and for other obligations, as well as for damages which have arisen during the last preceding and the current rent period. 316. If the lessor has received security-money, he has a preferential right only for so much of the obligation as is not performed out of the security-money. 317- The preferential right on account of lodging in an inn is for the charges for the lodging of a traveller, his — 82 — suite and his beasts of burden, as well as for charges for food and drink, and is in the baggage which is in the inn. 318. The preferential right on account of transportation is for charges for the transportation of a traveller or of goods and for incidental expenses, and is in all goods in the hands of the carrier. 319- The provisions of Arts. 192-195 apply corresponding- ly to the preferential rights mentioned in the preceding seven articles. 320. The preferential right on account of security given by a public officer is for any obligation arising from a default of a public officer in the performance of his functions, and is in such security. 321. The preferential right on account of the preserva- tion of a movable is for the expense of the preservation of a movable thing, and is in such thing. This preferential right exists also for necessary ex- penses incurred for the purpose of having a right re- lating to a movable preserved, acknowledged or en- forced. The preferential right on account of the sale of a movable is for the purchase money of a movable and interest thereon, and is in such movable. - 83 - 323- The preferential right on account of the supply of seeds, young plants or manure is for the price of seeds, young plants or manure and interest thereon, and is in the fruits which have grown on the land for which those things have been used within one year after their use. The preferential right above mentioned is also for the supply of silkworm eggs or mulberry leaves used for feeding the worms, and is in the things produced from the eggs and leaves. 324- The preferential right on account of agricultural and industrial services is, as to an agricultural labourer for wages for one year back, and as to an industrial labourer for wages for three months back, and is in the fruits or manufactured things produced by his labour. SUBSECTION III. PKEFERENTIAT. RIGHTS IN IMMOVABLES. 325- A person in whose favour an obligation exists based upon one of the following grounds has a preferential right in particular immovables of the debtor : — 1. Preservation of an immovable ; 2. Work done upon an immovable ; 3. Sale of an immovable. — 84 — 326. The preferential right on account of the preservation of an immovable is for the expense of preservation of an immovable, and is in the thing preserved. In that case the provisions of Art. 321,2 apply cor- respondingly. 327. The preferential right on account of work done upon an immovable is for the charges for work done upon an immovable of the debtor by a builder, a gishi* or a contractor, and is in the immovable. This preferential right exists only if there is a pre- sent increase of the value of such immovable due to such work, and is only in such increased value. 328. The preferential right on account oE the sale of an immovable is for the purchase money and interest thereon, and is in the immovable. SECTION III. THE RANK OF PREFERENTIAL RIGHTS. 329- If general preferential rights conflict, their prece- dence is according to the order in Art. 306. If a general preferential right conflicts with a special * See note to Art. 170. -85 - preferential right, the latter takes precedence ; but the preferential right on acoount of expenses for the com- mon benefit takes precedence as against all cieditors who are benefited thereby. 330. If preferential rights in the same movable conflict, the order of their precedence is as follows : — 1. The preferential right on account of the hiring of an immovable, of lodging in an inn and of transportation ; 2. The preferential right on account of the preser- vation of a movable ; but if there are several persons entitled as preservers, a later preserver takes precedence of an earlier one ; 3. The preferential right on account of the sale of a movable, of the supply of seeds, young plants or manure, and of agricultural and in- dustrial services. If a person who has a preferential right of the first rank knew at the time when he acquired his obligation that other persons had preferential rights of the second or third rank, he cannot exercise his right of preced- ence against them. The same applies to a person who has preserved a thing for the benefit of a person having a preferential right of the first rank. As to fruits, an agricultural labourer has the first rank, a supplier of seeds, young plants and manure the second, and the lessor of the land the third. 331- If special preferential rights in the same immovable — 86 — conflict, their precedence is according to the order in Art. 325. If successive sales have been made of the same im- movable, the order of precedence of the sellers is according to the times of the sales. 332. If several persons have preferential rights of the same rank in the same thing, each is to receive per- formance in proportion to the amount of his obligation. SECTION IV. THE EFFECT OF PREFERENTIAL RIGHTS. 333- A preferential right in a movable cannot be ex- ercised after the debtor has delivered the thing to a third person who has acquired it from him. 334- If a preferential right conflicts with a pledge of a movable, the pledgee has the same right as the holder of a preferential right of the first rank mentioned in Art. 330. 335- A person who has a preferential right must receive performance first out of property other than im- - 87 - movables, and only in case that is insufficient can he receive performance out of immovables. As to immovables he must receive performance first out of such immovables as are not the subjects of special rights of security. If a person who has a general preferential right omits to intervene in a distribution of property accord- ing to the foregoing provisions, he is forbidden to exercise his preferential right against a third person whose right is registered, to the extent of what he would have received on such intervention. The provisions of the three preceding paragraphs do not apply, if the proceeds of immovable property are distributed before those of other property, or if the proceeds of an immovable which is the subject of a special security are distributed before the proceeds of other immovable things. 336- A general preferential right, even though not re- gistered in respect to an immovable, may be set up against any creditor who has no special security ; but this does not apply against a third person whose right is registered. 337- A preferential right on account of the preservation of an immovable retains its effect, if it is registered as soon as the act of preservation is completed. 338. A preferential right on account of work done upon an immovable retains its effect, if a provisional — 88 — estimate of the cost is registered before the work has begun. If, however, the cost of the work exceeds the provisional estimate, there is no preferential right for the excess. The increase of value of an immovable arising from the work done upon it, is to be estimated by experts appointed by the court, and at the time of the interven tion in the distribution. 339- A preferential right registered in accordance with the provisions of the preceding two articles can be exercised in preference to a mortgage. 340. A preferential right on account of the sale of an immovable retains its effect, if at the time when the contract of sale is made, the fact that the price or the interest thereon has not been paid is registered. 341- As to the eiTect of a preferential right, in addition to the provisions of this Section the provisions as to mortgages apply correspondingly. - 89 - CHAPTER IX. PLEDGE. SECTION I. GENERAL PROVISIONS. 342. A pledgee has a right to possess the thing which he has received from the debtor or from a third person as security for an obligation existing in his favour, and to receive performance out of it in preference to other creditors. 343- A thing which is not assignable cannot be made the subject of a pledge. 344. The creation of a pledge takes effect on the delivery to the creditor of the thing forming its subject. 345- The pledgee cannot have the pledgor hold the possession of the thing pledged in his place. 346. The pledge is security for the principle, interest — 90 — and any penalty, for the costs of enforcement of the right of pledge, for the expenses of the preservation of the thing pledged and for damages arising from non- performance of the obligation or from latent defects in the thing pledged ; except so far as it is otherwise provided in the act of creation. 347- The pledgee is entitled to retain the possession of the thing pledged, until he has received performance of the obligation mentioned in the preceding article; but he cannot set up this right against a creditor who has a right of precedence over him. 348. The pledgee may on his own responsibility repledge the thing pledged within the time of the duration of his own right. In that case, however, he is responsible for any damage caused to the thing by vis major, which would not have happened but for the repledge. 349- The pledgor cannot, either by the act of creation or by an agreement made before the obligation is due, in order to make performance to the pledgee, agree that the latter shall become the owner of the thing pledged or shall dispose of it without complying with the requirements of the law. 350. The provisions of Arts. 296-300 and of Art. 304 apply correspondingly to a pledge. — 91 — 351- A rerson who has given a pledge as security for the obligation of another is entitled to recourse against the debtor according to the provisions of law as to suretyship, if he has performed the obligation or has lost the ownership of the thing pledged in consequence of the enforcement of the pledge. SFXTION II. PLEDGE DF A MOVABLE. 352. The pledgee of a movable cannot set up his pledge against a third person, unless he continues to hold possession of the thing. 353- If the pledgee of a movable is deprived of the possession of the thing, he can recover it only by an action for the recovery of possession. 354- If the obligation existing in favour of the pledgee is not performed, he may, provided there is a reasonable ground for doing so, apply to the court to have the thing pleged at once appropriated for the performance according to a valuation by experts. The pledgee — 92 — must give previous notice of such application to the debtor. 355- If several pledges for different obligations have been created in the same movable, their rank is according to the times of their creation. SECTION III. THE TLEDGE OF AX IMMOVABLE. 3S6. The pledgee of an immovable may use and take the profits of the immovable pledged in accordance with its established manner of use. 357- The pledgee of an immovable is bound to pay the expenses of its management and to bear the charges upon it. 358. The pledgee of an immovable cannot demand in- terest upon his obligation. 359- The provisions of the preceding three articles do not apply, if it is otherwise provided by the act of creation of the pledge. — 93 — 36o. The duration of the pledge of an immovable may not exceed ten years. If a longer period is fixed, it is to be reduced to ten years. The pledge of an immovable may be renewed, but not for more than ten years from the time of renewal. 361. In addition to the provisions of this Section, the provisions of the next Chapter apply correspondingly to the pledge of an immovable. SECTION IV. THE PLEDGE OF A RIGHT. 362. Any property right may be the subject of a pledge. In addition to the provisions of this Section, the provisions of the last three Sections apply cor- respondingly to such a pledge. 363- When an obligation is pledged which is evidenced by a written instrument, the pledge is effected by the delivery of the instrument. 364- When an obligation in favour of a specified person is — 94 — pledged, such pledge cannot be set up against the debtor on such obligation or another third person, unless notice of the creation of the pledge is given to such debtor in accordance with the provisions of Art. 467. The foregoing provisions do not apply to name- shares.* 365- If a name-debenture is pledged, such pledge cannot be set up against the commercial company or against other third persons, unless the creation of the pledge is registered in the company's books in accordance with the provisions relating to the assignment of debentures. 366. If an instrument drawn to order is pledged, such pledge cannot be set up against third persons, unless its creation is noted upon the instrument itself in the manner of an endorsement. 1^7- The pledgee may collect directly anything that is due upon the obligation pledged. When the obligation is for money, the pledgee may collect only si;ch portion as corresponds to the amount of his own obligation. If the obligation pledged is due before the obligation in favour of the pledgee, the latter may require the debtor on the obligation pledged to deposit its amount, in which case the pledge exists in the money deposited. * I. e. shares of stock in the nertifioates for which a person certaia is named as creditor. See the Commercial Code. — 95 — When an obligation which is not for money is pledged, the pledgee has a right of pledge in the thing received in performance thereof. 368. In addition to the manner provided in the preced- ing article, the pledgee may enforce the pledge also in the manner provided for the enforcement of obliga- tions in the Code of Civil Procedure. CHAPTER X. . MORTC-^GE. SECTION I. GENERAL PROVISIONS. 369- A mortgagee has a right to receive, in preference to other creditors, performance out of the immovable which the debtor or a third person, without transferring its possession, has made security for an obligation exist- ing in favour of the mortgagee. A superficies or emphyteusis can also be made the subject of a mortgage. In such case the provi- sions of this Chapter apply correspondingly. -96- 370- The mortgage covers all things which are so con- nected with the immovable mortg'aged as to form one thing with it, except buildings standing on mortgaged land. But this does not apply, if it is otherwise pro- vided in the act of creation, or if the creditor has a right to rescind the act of the debtor according to the provisions of Art. 424. 371- The provisions of the preceding article do not apply to fruits, except for the time after a seizure has been made under legal process upon the immovable mortgaged, or after the notice specified in Art. 381 has been given to a third person who has purchased the immovable. This proviso, however, applies only if the seizure of the immovable mortgaged is made within one year after the third purchaser has received the notice mentioned in Art. 381. 372. The provisions of Arts. 296, 304 and 351 apply correspondingly to mortgages. — 97 — SECTION II. THE EFFECT OF A MORTGAGE. 373- If the same immovable has been mortgaged to secure several different obligations, the rank of such mortgages is according to their respective times of registration. 374- If a mortgagee is entitled to interest or other money payable by instalments, he can exercise his mortgage only for payments which have fallen due within the preceding two years. If, however, as to any earlier instalment a special registration has been made after its falling due, the mortgage may be exercised as to it from the time of registration. 375- A mortgagee may make his mortgage security for an obligation in favour of another person against him, or he may assign or waive his mortgage or the rank thereof in favour of another creditor of the same debtor. If in any such case the mortgagee has made dis- posals of his right in favour of several persons, the rights of such persons rank according to the respective times when notes of such facts were added to the registry of the mortgage. - 98 - 376. If in any case mentioned in the preceding article the principal debtor has neither been notified according to the provisions of Art. 467 of the disposal of the mort- gage nor consented to it, such disposal cannot be set up against him, a surety, the mortgagor or a successor of any of them. If the principal debtor after receiving such notice or after such consent performs without the consent of the person in whose favour such disposal was made, he cannot set up such performance against the latter or his successor. 377- If a third person who has bought the ownership of or a superficies in the immovable mortgaged, pays the price to the mortgagee at the latter's request, the mortgage is extinguished in favour of the buyer. .378- A person who has purchased* the ownership of or a superficies or emphyteusis in an immovable may, under the provisions of Arts. 382-384, remove a mortgage by paying or depositing a sum proposed to the mortgagee and assented to by him. 379- The principal debtor, a surety or a successor of either of them has not the right to remove a mortgage. * Purchase means in this Section the acquisition of a right otherwise than ns heir or legatee. This is nearly its technical meaning in the English law. — 99 — 38o. A third person who has purchased an immovable subject to a condition precedent has not the right to remove a mortgage pending the condition. 381. If a mortgagee intends to enforce his mortgage, he must give previous notice thereof to the purchaser mentioned in Art. 378. 382. A purchaser may remove a mortgage at any time, before he receives the notice mentioned in the pre- ceding article. When the purchaser has received the notice mention- ed in the preceding article, he can remove a mort- gage only on condition that he serves within one month the documents specified in Art. 383. A third person who has purchased one of the rights mentioned in Art. 378, after the notice mentioned in Art. 381 has been given, can remove a mortgage only within the period fixed for the purchaser mentioned in the preceding paragraph. 383- If a purchaser intends to remove a mortgage, he must serve upon each registered creditor the following documents: — I. A document specifying the title and the date of his purchase, the name and the domicile of the grantor and of the purchaser, the nature and locality of the immovable mortgaged, the price and other charges assumed by the purchaser; — lOO — 2. A copy of the registry book, so far as it relates to the immovable ; but it is not necessary to insert therein those entries which relate to rights already extinct ; 3. If the creditors have not in compliance with the provisions of Art. 384 within one month demanded the sale of the immovable by auction for the sake of obtaining a higher price, a document stating that the purchaser will in accordance with the rank of the obligations pay or deposit the price mentioned under No. I or a specified amount of money. 384. A creditor who does not within one month after having received the service mentioned in the preceding article demand a sale by auction for the sake of obtaining a higher price, is considered to have assented to the offer of the purchaser. A creditor who demands a sale by auction for the sake of obtaining a higher price must state that he will himself buy the immovable at a price of one tenth higher than that offered by the purchaser in case such price or a higher price is not obtained at the auction. In such case the creditor must give security for the price and expenses. 385. A creditor who demands a sale at auction according to Art. 384, must within the period specified in the preceding article give notice thereof to the debtor and the grantor of the mortgaged immovable. — lOI — 386. A creditor who has demanded a sale by auction according to Art. 384 can withdraw his demand only with the consent of the other registered creditors. 387. If the mortgagee has not within the period specified in Art. 382 received payment from the debtor or a notice for the removal of the mortgage, he may demand a sale by auction of the immovable mortgaged. 388. If the land and the buildings on it belong to the same owner, but the mortgage is on the land only or on the buildings only, it is considered that the mort- gagor has created a superficies for the case of a sale by auction. In such case the ground rent is to be fixed by the court on the application of any party interested. 389- If the mortgagor after the creation of the mortgage has erected a building on the land mortgaged, the mortgagee may have such building sold with the land ; but he can exercise his right of priority only against the price obtained for the land. 390. The purchaser* may bid for the immovable at the auction. 391- If the purchaser has incurred necessary or beneficial * i. e. the puvcliaser mentioned in Art. 378. I02 expenses in respect to the immovable mortgaged, he has a prior claim for compensation out of the price of the immovable according to the distinctions stated in Art. 196. 392. If the creditor has a mortgage on several im- movables for the same obligation, and the price of all of them is to be distributed at the same time, the burden of the obligation is apportioned according to the respective values of such immovables. If the price of only one of such immovables is to be distributed at one time, the mortgagee may claim per- formance of his entire obligation from that price. In that case the mortgagee who is next in rank may exercise the rights of the prior mortgagee in his stead to the extent of the amount which the latter would have received from the other immovables according to the provisions of the preceding paragraph. 393- A person who exercises the right of mortgage in another's stead according to the provisions of the preceding article, may have a note of such fact added to the registry of the mortgage. 394- A mortgagee is entitled to performance of his obliga- tion from other property only so far as he is not able to obtain it from the price of the immovable mortgaged. This provision does not apply, if the price obtained for other property is to be distributed before the price of the immovable mortgaged ; but in order to secure that the mortgagee receives payment according to — I03 — the provisions of the preceding paragraph the other creditors may demand that the amount which will come to him in the distribution shall be deposited. 395- A lease w'lich does not exceed the duration specified in Art. 602 may be set up against the mortgagee even though registered after the mortgage ; but if such lease causes damage to the mortgagee, the court may on his application order its cancellation. SECTION III. THE EXTir.CTION OF THE MORTGAGE. 396. A mortgage is extinguished by prescription as to the debtor and tlie mortgagor only on the extinguish- ment of the obligation secured by it. 397- If a person other than the debtor or mortgagor has possession of the immovable mortgaged under the conditions necessary for acquisitive prescription, the mortgage is extinguished thereby. 398- A person who has mortgaged a superficies or emphy- teusis cannot set up the surrender of his right against the mortgagee. — I04 — BOOK III. OBLIGATIONS.* CHAPTER X GENERAL PROVISIONS. SECTION I. THE SUBJECT OF THE OBLIGATION. 399- The subject of an obligation may be something not capable of being estimated in money. 400. If the subject of the obligation is the delivery of a specific thing, the debtort must, until the time of de- livery, use in the keeping of the thing the care of a good manager. 401. When the thing which forms the subject of the obligation is described only in kind, if the quality * In this translation the word " obligation " is used in the sense of the Roman Law to denote either the right of one party or the duty of the other, t In this translation the words " debtor " and " creditor " are used to denote respectively the person subject to any kind of obligation and the person to whom it is owed, not as in Knglish law only the parties to an obligation to pa.y money. — los — cannot be determined by the nature of the juristic act or the intention of the parties, the debtor must make prestation* of a thing of medium quality. In such case if the debtor has completed all acts necessary for the prestation of a thing, or if he with the consent of the creditor has selected a thing for the prestation, such thing becomes from that time the subject of the obligation. 402. If the thing forming the subject of the obligation is money, the debtor may at his option perform in any kind of currency, unless the subject of the obligation is prestation of some particular kind of money. If at the time of maturity of the obligation the particular kind of currency which forms its subject has lost its legal tender quality, the debtor may per- form in any other currency. These provisions apply correspondingly, if the sub- ject of the obligation is prestation of foreign currency. 403. If the amount of an obligation is expressed in foreign currency, the debtor may perform in Japanese currency at the rate of exchange prevailing at the place of performance. * Prestation denotes any act which is done or omitted in favour of another. The word Icyufu suru Jt#7> ;)/ used in the Japanese text is a translation of the German technical term leisten and the Latin prastare. Neither performance nor payment would express the same meaning, as will be clearly shown by Arts. 406, 410, 482, 488, 490, 491. There may be, for instance, several prestations in order to make one performance, and there .nay be a prestation without the obligation being discharged thereby. — io6 — 404. If an obligation bears interest and there is no different intention expressed, the rate of interest is five per cent per annum. 405. If the interest is in arrear for one year or more, and the debtor does not pay upon the creditor's demand, the latter ma}' add such interest to the principal. 4c6. If the subject of the obligation is to be selected from among several prestations, the right of selection belongs to the debtor. 407. The right of selection mentioned in the preceding article is exercised by an expression of intention made to the other party. Such expression of intention can be rescinded only with the asseiit of the other party. 408. When the obligation comes due, if the party having the right of selection on being called upon by the other party to select within a reasonable time, does not do so within such time, the right of selection passes to the other party. 409, If a third person is to make the selection, it is done by an expression of intention made either to the creditor or to the debtor. — I07 — If such third person cannot make the selection or is unwilling to do so, the right of selection passes to the debtor. 410. If among the prestations which form the subject of the obligation one is from the beginning or afterwards becomes impossible, the obligation remains in ex- istence as to the others. If a prestation becomes impossible by the fault of the party who has not the right of selection, the foregoing provisions do not apply. 4lt. The effect of the selection relates back to the time when the obligation came into existence ; but the rights of third persons cannot be impaired thereby. SECTION II. THE EFFECT OF THE OBLIGATION. 412. If a certain time is designated for the performance of the obligation, the debtor is in niorci''-' from such time. * Mora is the expression of the Koniaii Law for the condition of -a. party to an obligation who has failed to perform in time or to accept performance of the oblij,ation in time. — io8 — If a time which is uncertain has been designated for the performance of the cbh'gation, the debtor is in mora after he has notice that such time has arrived. If no time has been designated for the performance of the obh'gation, the debtor is in mora after a demand for performance has been made upon him. 413- If the creditor refuses to accept or cannot accept the performance of the obh'gation, he is inmoraixoxn the time when a tender of performance is made to him. 414. If the debtor wilfully fails to perform his obligation, the creditor may apply to the court for compulsory performance; except where the nature of the obligation does not admit of it. When the nature of the oVjligation does not admit of compulsory performance, if the subject of the obligation is the doing of an act, the creditor may apply to the court to liave it done by a third person at the debtor's expense ; but if the subject of the obligation is the doing of a juristic act, the decree of the court stands in the place of an expression of intention by the debtor. As to an obligation whose subject is the forbearance from an act, tlie creditor may apply to the court to have such acts as have been done undone and proper measures taken for the future. These provisions do not affect the right to claim damages. 415- If the debtor does not perform the obligation according to its terms, the creditor may claim damages. — log — The same is the case, if the debtor becomes unable to perform for any cause attributable to him. 416. The claim for damages is for compensation for all such damage as is the natural consequence of non-per- formance. The creditor may demand compensation even for such damage as has arisen from special circumstances, if the party concerned foresaw or ought to have foreseen such circumstances. 417- Unless a different intention has been expressed, the amount of the damages is to be assessed in money. 418. If the fault of the creditor has contributed to the non-performance of the obligation, the court may take that into consideration in determining the liability for damages or their amount. 419. On an obligation whose subject is money the amount of damages is fixed according to the legal rate of interest ; but if a higher rate of interest has been agreed upon, that is to govern. The creditor is not bound to prove the amount of such damages, nor can the debtor set up the defence of vis major as to them. 420. The persons concerned may fix beforehand the — no — amount of damages for non-performance of an obli- gation. In such case the court may not increase or re- duce such amount. Sucli a previous fixing of the amount of damages does not affect the right to claim the performance or rescission of the obligation. A penalty is presumed to be a previously fixed amount of damages. 42r. The provisions of the preceding article appl}' cor- respondingly, where the parties have agreed before- hand that compensation shall be made in something other than money. 422. If the creditor receives as damages the full value of the thing or right which forms the subject of the obligation, the debtor is subrogated by operation of law into the position of the creditor as to such thing or right. 423. In order to protect his obligation, the creditor may exercise the rights of the debtor, except such as are merely personal to the debtor. So long as the obligation is not yet due, the creditor can exercise the rights of his debtor only by virtue of a judicial subrogation ; but this does not apply to acts of preservation. 424. The creditor may apply to the court for the rescission of any juristic act done by the debtor — Ill — with knowledge that it would prejudice the creditor. This does not apply, if the person enriched by such Juristic act or a subsequent acquirer did not know, at the time of the act or of the acquisition, of the facts which would make it prejudicial to the creditor. This does not apply to a juristic act whose subject is not a property right. 425- A rescisssion made according to the provisions of the preceding article avails for the benefit of all the creditors. 426. The right of rescission mentioned in Art. 424 is extinguished by prescription, if tlie creditor does not exercise it for two years from the time when he had notice of the cause of rescission. The same applies, if twenty years have elapsed since the time of the act. 112 SECTION III. PLURALITY OF CREDITORS OR DEDTORS. SUBSECTION I. GENERAL PROVISIONS. 427. If there are several creditors or several debtors, and no different intention is expressed, each creditor and each debtor has equal rights or duties. SUBSECTION II. INDIVISIBLE OBLIGATIONS. 428. When the subject of the obligation is by nature or by the expressed intention of the parties indivisible, if there are several creditors, each creditor may demand performance on behalf of all the creditors, orthe debtor may perform to one creditor on behalf of all the creditors. 429. Even though an agreement of novation* or release * See Art. 513 et aeq. — 113 — has been made between one creditor on an indivisible obligation and the debtor, the other creditors may- demand performance of, the entire obligation ; but so much as would have come to such creditor, if he had not lost his right, must be restored to the debtor. Except as aforesaid, the acts of one creditor on an indivisible obligation or facts occurring in respect to such one creditor have no effect as against the other creditors. 430. If an indivisible obligation rests upon several persons, the provisions of the preceding article and those relat- ing to joint obligations apply correspondingly, except the provisions of Arts. 434-440. 431- If an indivisible obligation is changed into a divisible one, each creditor can demand performance, and each debtor is bound to perform only as to his share. SUBSECTION III. JOINT OBLIGATIONS. 432. If several persons are bound by a joint obligation, the creditor may demand performance wholly or partly against any one of the debtors or against all the debtors at the same time or successively. — 114 — > 433- If a cause of invalidity or rescission of the juristic act exists as to one of the joint debtors, the effect of the obligation as to the other debtors is not impaired thereby. 434- A demand for performance made to one of the joint debtors is effective against all the debtors. 435- If a novation is made between one of the joint debtors and the creditor, the obligation is extinguished as to all of the joint debtors. 436. If an obligation exists in favour of one of the joint debtors against the creditor, and such debtor makes a set off, the joint obligation is extinguished as to all the debtors. So long as the joint debtor in whose favour the obligation exists, does not make a set off, the other joint debtors can make it only in respect to such debtor's share. 437- A release made to one of the joint debtors avails in favour of the other debtors only in respect to such debtor's share. 438. If confusion* takes place between one joint debtor * See Art. 520. — IIS — and the creditor, it is deemed that such debtor has performed the obligation. 439- If prescription has been completed in favour of one joint debtor, the other debtors are freed from their liability to the extent of such debtor's share. 440. With the exception of the facts mentioned in , the preceding six articles, facts which arise with respect to one joint debtor have no effect as to the other debtors. 441. If all of the joint debtors or several of them are adjudged bankrupt, the creditor may intervene in the distribution of the assets of each for the full amount of the obligation. 442. If one joint debtor performs or otherwise at his own expense obtains the discharge of all the debtors from the obligation, he has a right to contribution from the other joint debtors up to the amount of their res- pective shares. Such a right to contribution includes the right to legal interest from the day of performance or of the discharge and to compensation for necessary expenses and for damage. 443- If one joint debtor performs or otherwise at his own expense obtains the discharge of all the debtors from the obligation, without having informed the other — ii6 — debtors of the demand of the creditor, and any othe debtor had a defence which he could have made against the creditor, he may make it against the former debtor as to his share ; but if he does so by way of set off, the debtor in fault may demand against the creditor the performance of the obligation which might have been extinguished by set off. If one joint debtor omits to inform the other debtors that he has performed or otherwise at his own expense has obtained the discharge of all the joint debtors, and in consequence thereof another joint debtor in good faith performs or otherwise for a consideration obtains a discharge from the obligation, such latter debtor may consider his performance or other act of discharge as valid. 444- If one of the joint debtors has not the means to make contribution, the amount which he is unable to contribute is to be apportioned among the person entitled to contribution and the other joint debtors who are solvent according to their respective shares ; but if the party entitled to contribution is in fault, he cannot claim contribution against the other joint debtors. 445- If one of the joint debtors has been released from the obligation, and one of the remaining debtors has not the means to perform, the creditor takes upon himself that share which the debtor released by him ought to have borne in respect to the share which the debtor without means could not perform. — 117 — SUBSECTION IV. SURETYSHIP. 446. If the principal debtor does not perform his obliga- tion, the surety must perform it. 447- The suretyship covers interest, penalty and damages on the principal obligation and all other charges acces- sory to it. A surety may stipulate that he shall be liable for a penalty or damages only in respect of his own obliga- tion as surety. 448. If the liability of the surety is more onerous than the principal obligation as to its subject or its modality, it is to be reduced to the extent of the principal obli- gation. 44P-^ If a person with knowledge of the ground of rescission becomes surety for an obligation which may be rescinded because of incapacity, he is presumed to have entered into an independent obligation having the same subject, conditioned upon the non-performance or rescission of the principal obligation. 450. When a debtor is bound to furnish a surety, the latter must have the following qualifications : — I. He must be a person of full capacity ; — ii8 — 2. He must have the means to perform; 3. He must have his domicile within the jurisdic- tion of the court of appeal which has jurisdic- tion over the place of performance, or he must establish a special domicile there. If the qualifications mentioned under Nos. 2 and 3 cease to exist, the creditor may demand that another person having those qualifications be substituted for the surety. These provisions do not apply, if the surety has been designated by the creditor. 451- If the debtor cannot furnish a surety having the qualifications mentioned in the preceding article, he may instead thereof give some other kind of security. 452. If the creditor demands performance of the obliga- tion from the surety, the latter may require that the principal debtor be first called upon to perform ; unless the principal debtor has been adjudged bankrupt, or his whereabouts is unknown. 453- Even after the principal debtor has been called upon as provided in the preceding article, if the surety can prove that the principal debtor has the means to perform, and that enforcement against him would not be difficult, the creditor must first enforce his obliga- tion against the property of the principal debtor. 454- If the surety becomes bound jointly with the principal — 119 — debtor, he has not the rights mentioned in the preced- ing two articles. 4SS- ■ If the creditor, disregarding a demand made by the surety according to the provisions of Arts. 452 and 453, has not called upon or enforced his obligation against the principal debtor, and cannot afterwards obtain full performance from him, the obligation of the surety is discharged to the extent to which the creditor would have received performance, if he had at once made such call or enforcement. 456. When there are several sureties, the provisions of Art. 427 apply, even though they have assumed their obligations by separate acts. 457- A demand for performance made upon the principal debtor or an interruption of the prescription as against the principal debtor has effect also against a surety. A surety may avail himself against the creditor b}? way of set off of any obligation which exists in favour of the principal debtor against the creditor. 458. If the principal debtor is bound jointly with the surety, the provisions of Arts. 434-440 apply. 459- A surety who has become such at the request of . the principal debtor, if without his own fault he has been adjudged to perform the obligation, or if in place of I20 the principal debtor he has performed or otherwise has extinguished the obligation at his own expense, has a right of recourse against the principal debtor. The provisions of Art. 442,2 apply correspondingly to the foregoing case. 460. A surety who has become such at the request of the principal debtor may exercise beforehand his right of recourse against the principal debtor in the following cases ; — 1. If the principal debtor has been adjudged bank- rupt, and the creditor does not intervene in the distribution of his assets ; 2. After the obligation has become due ; if, how- ever, since the making of the contract of surety- ship the creditor has given time to the principal debtor, that cannot be set up against the surety ; 3. When the time of performance of the obligation is uncertain, and even the maximum time cannot be known, after ten years have elapsed from the making of the contract of suretyship. 461. A principal debtor who has according to the provi- sions of the preceding two articles indemnified the surety, may, so long as the creditor has not received full performance, require the surety to give him security or to procure his discharge from the obliga- tion. In the foregoing cases the principal debtor may free himself from his obligation to indemnify the surety by 121 making a deposit, by giving security or by procuring the discharge of the surety. 462. If a person who has become surety without the request of the principal debtor performs the obligation or otherwise at his own expense obtains the discharge of the principal debtor from his obligation, the latter is bound to indemnify him only to the extent to which he was enriched thereby at that time. A person who has become surety against the will of the principal debtor has a right of recourse only to the extent to which the principal debtor is presently enriched ; but if the principal debtor sets up the fact that before the time of the recourse he had a right of set off against the creditor, the surety may demand against the creditor performance of the obligation which would have been extinguished by the set off. 463- The provisions of Art. 443 apply correspondingly to a surety. If a surity who has become such at the request of the principal debtor has in good faith made per- formance or incurred other expenses for the sake of discharge, the provisions of Art. 443 apply correspond- ingly to the principal debtor also. 464. A person who has become surety for a joint debtor or for a debtor on an indivisible obligation, has a right of recourse against the other debtors only to the extent of their respective shares. 122 — 46s- If, because the principal obligation was indivisible or because all the sureties have bound themselves by- special agreement to perform the whole obligation, one of several sureties has performed the whole obligation or more than his proportional part thereof, the provi- sions of Arts. 442 — 444 apply correspondingly. In a case other than the preceding case, if one of se- veral sureties who are not jointly bound has performed the whole obligation or more than his proportional part thereof, the provisions of Art. 462 apply corres- pondingly. SECTION IV. THE ASSIGNMENT OF OBLIGATIONS. 466. An obligation may be assigned, unless its nature does not admit of it. This provision does not apply, if the parties have expressed a contrary intention. Such expression of intention, however, cannot be set up against a third person acting in good faith. 467. The assignment of an obligation in favour of a specific creditor can be set up against the debtor or another third person only if notice has been given to the debtor, or if the latter has assented to the assignment. — 123 — Such notice or assent can be set up against a third person other than the debtor only if it is made by a document having an authenticated date. 468. If the debtor has givfen the assent mentioned in the preceding article without reservation, he cannot set up against the assignee a defence which he might have made against the assignor. If, however, in order to extinguish the obligation, the debtor has made any payment to the assignor, he may recover it, or if for such purpose he has assumed an obligation to the assignor, he may treat it as if it did not exist. If the assignor has merely given notice of the assign- ment, the debtor may set up against the assignee any defence which he had against the assignor, before he received such notice. 469. The assignment of an obligation performable to order can be set up against the debtor or other third persons only if the assignment is endorsed on the instru- ment, and the instrument itself is delivered to the assignee. 470. The debtor on an obligation performable to order has the right, but is not bound, to verify the identity of the holder of the instrument or the genuineness of his signature or seal ; but if the debtor acts in bad faith or with gross negligence, his performance is not valid, 471. The provisions of the preceding article apply corre- 124 — spondingly, if a specific creditor is designated, but it is added that the obligation shall be performable to the holder, of the instrument. 472. The debtor on an obligation performable to order ■cannot set up against any assignee in good faith de- fences which he might have set up against the ori- ginal creditor, except such as appear upon the face of the instrument or result naturally from its character. 473- The provisions of the preceding article apply corre- spondingly to obligations performable to bearer. SECTION V. THE EXTINGUISHMENT OF OBLIGATIONS. SUBSECTION I. PERFORMANCE. 474- Performance of an obligation may be made by any third person, unless its nature does not admit of it, or the parties concerned have expressed a contrary inten- tion. A person who has no interest in the performance, — I2S — cannot make performance against the will of the debtor. 475. If a person has delivered by way of performance a thing belonging to another, he can reclaim it only on condition that he makes another and valid performance. 476. If the owner of a thing who has not capacity to assign it delivers it in performance, and the perfor- mance is afterwards rescinded, he can reclaim the thing only on condition that he makes another and valid performance. 477- If in the cases mentioned in the preceding two articles the creditor has in good faith consumed or assigned the thing delivered in performance, such performance is valid ; but this does not impair the creditor's right of recourse against the person perform- ing, if a third person has claimed damages from him. 478. If performance is made to the quasi-possessor of an obligation, it is valid only if the person making per- formance acted in good faith. 479- Except in the case mentioned in the preceding article, a performance made to a person who is not entitled to receive it, is valid only to the extent to which the creditor has been enriched thereby. — 126 — 48o. A person who produces a receipt is deemed to have a right to receive performance ; but this does not apply, if the person making performance knows that such right does not exist or is ignorant thereof by reason of his negh'gence. 481. If a garnishee who has been forbidden by the court to do so nevertheless performs to his immediate creditor, the garnishor may still demand performance to the extent to which he has been damaged. This provision does not impair the I'ight of the garnishee to exercise his right of recourse against his immediate creditor. 482. If the debtor with the consent of the creditor makes some prestation other than that which he is bound to make, such prestation has the same effect as per- formance. 483. If the subject of the obligation is the delivery of a specific thing, the person making performance must deliver the thing in the condition in which it is at the time when delivery is to be made. 484. When there is no special expression of intention as to the place of performance, if a specific thing is to be delivered, the delivery is to be made at the place where the thing was at the time when the obligation — 127 — arose ; other kinds of performance are to be made at the place of the creditor's present domicile. 485. If there is no special expression of intention as to the expenses of performance, such expenses are to be borne by the debtor ; if, however, because of the creditor's changing his domicile or any other act of his, the expenses are increased, such increase must be borne by the creditor. 486. The person making performance may require the recipient of the performance to give him a receipt. 487 If there are documents evidencing the obligation, a person who has fully performed the obligation can require the surrender of such documents. 488. When a debtor owes several obligations of the same kind to the same creditor, if the prestation tendered as performance is not sufficient to extinguish them, the person performing may at the time of the prestation designate the obligation to which such performance shall be appropriated. If the person performing does not make such designation, the person receiving the performance may at the time of reception appropriate such performance ; unless the person performing at once objects thereto. The appropriation of a performance is made by an expression of intention to the other party. 128 — 489. If the parties do not appropriate the performance, the appropriation of it is to be made according to the following rules : — 1. If some of the different obligations are due and some are not due, those which are due have precedence ; 2. If all the obligations are due or all are not due, those have precedence, whose perform- ance is more advantageous to the debtor ; 3. If the advantage is equal, those have precedence, which first came due or will first become due ; 4. If the obligations are equal in the respects mentioned under Nos. 2 and 3, the performance is to be appropriated among them in proportion to their respective amounts. 490. When for the performance of a single obligation several prestations are to be made, if the person per- forming makes a prestation not sufficient to extinguish the obligation, the provisions of the preceding two articles apply correspondingly. 491. In case a debtor is bound in regard to one or several obligations to pay, besides the principal, interest and expenses, and the person performing makes a presta- tion not sufificient to extinguish the whole obligation, it is to be appropiated in the following order : first expenses, then inlerest and lastly principal. In this case the provisions of Art. 489 apply correspondingly. — 129 — 492. By a tender of performance a discharge is effected, from the time of the tender, from all liabilities arising out of non-performance. 493- A tender of performance must be according to the terms of the obligation, and must be actual ; but if the creditor refuses beforehand to accept performance, or if it is necessary for the creditor to do any act in respect to the performance, it is sufficient to give notice that all preparations for performance have been made, and to notify the creditor to accept performance. 494- If the creditor refuses or is unable to accept per- formance, the person performing may discharge the obligation by depositing for the creditor's benefit the thing forming the subject of the obligation. The same applies, if the person performing, without fault on his part, cannot ascertain who is the creditor. 495- A deposit must be made at the deposit office of the place where the obligation is to be performed. If there are no special provisions by law or regula- tions as to the deposit office, the court must on the ap- plication of the person performing designate a deposit office and appoint a keeper of the thing deposited. The depositor must at once give notice of the deposit to the creditor. 496. So long as the creditor has not signified his — I30 — acceptance of the deposit, or the judgment of the court declaring the deposit valid has not become finally binding, the person performing may take back the thing deposited. In that case the deposit is deemed not to have been made. This does not apply, if by the deposit a pledge or a mortgage has been extinguished. 497- If the thing forming the subject of performance is not suitable for deposit, or if it is perishable or liable to injury, the person performing may with the per- mission of the court sell it at auction and deposit the proceeds. The same applies, if the keeping would be unreasonably expensive. 498. If the debtor is to perform upon a prestation being made by the creditor, the latter can receive the thing deposited only on condition that he makes such prestation. 499- A person who has performed on behalf of a debtor is subrogated into the rights of the creditor on obtaining his consent thereto at the time of performance. In such cases the provisions of Art. 467 apply corre- spondingly. 500 A person who has a rightful interest in performance is subrogated into the position of the creditor by opera- tion of la\v^. — 131 — SOI A person who according to the provisions of Arts. 499 and 500 is subrogated into the position of the creditor can, to the extent to which he might have recourse on the ground of his own right, exercise all the rights which the creditor had in respect to the effects of the obliga- tion or to any security for it ; but in such case the fol- lowing rules are to be observed : — 1. A surety is not subrogated into the posi- tion of the creditor as against a purchaser of an immovable which is the subject of a preferen- tial right, pledge or mortgage, unless a note of the subrogation is added beforehand to the registry of such right. 2. A purchaser is not subrogated into the position of the creditor against a surety; 3. One of several purchasers is subrogated into the position of the creditor as against the other purchasers only in proportion to the value of each immovable. 4. The provisions mentioned under No. 3 apply correspondingly among persons who from their own property have given security for the ob- ligation of another. 5. As between sureties and a person who from his own property has given security for the obligation of another, subrogation into the position of the creditor takes place only proportionally to the number of the persons. If, however, there are several persons who from their own property have given security for the obligation of another, as against them subroga- tion can take place only in respect to the amount which remains after deducting the — 132 — share to be borne by the sureties, and in propor- tion to the value of the respective properties given as security. If in such case the property is an immovable thing, tiie provisions of No. i apply corre- spondingly. 502. If subrogation takes place upon a part performance, the person performing exercises the right together with the creditor in proportion to the value given by him. In such case the creditor only is entitled to rescind the contract for non-performance ; but he must restore to the party making part performance the value given by the latter with interest. 503- A creditor who has received performance from a person who is thereupon subrogated into his position must deliver to such person the documents relating to the obligation and all things which he held as security. If subrogation takes place upon a part performance, the creditor must note such subrogation upon the do- cuments relating to the obligation, and must permit the party performing to see to the preservation of the things which he holds as security. 504. If a third person is according to Art. 500 to be subrogated into the position of the creditor, and the latter intentionally or by omission has destroyed or diminished the security, such third person is discharg- ed from his liability to the extent to which he is thereby prevented from getting reimbursement. — 133 — SUBSECTION II. SET OFF.* 505. If two persons are bound to each other by obliga- tions whose subjects are of the same nature and both of which are due, either debtor may discharge his obligation by set off to the extent to which the amounts of the obligations correspond, unless the nature of one of the obligations does not admit of it. The foregoing provisions do not apply, if the parties have expressed a contrary intention ; but such inten- tion cannot be set up against a third person acting in good faith. 506. Set off is made by an expression of intention by one party to the other. A condition or time of commence- ment or ending cannot be annexed. Such an expression of intention relates back in its effect to the time when both obligations could first have been set off. 507. A set off can be made, though the place of perform- ance of the two obligations is different ; but the party mIio makes the set off must indemnify the other party for any damage caused thereby. "*■ Compensatio in Roman Law. — '34 — So8. A creditor may set off an obligation which is ex- tinguished by prescription, if it could have been set off before its extinction. 509. If an obligation arises from an unlawful act, the debtor cannot avail himself of a set off against the creditor. 510. If the obligation is one that cannot be seized under legal process, the debtor cannot avail himself of a set off against the creditor. S" A garnishee who has been forbidden by the court to perform cannot set off against the garnishor an obligation subsequently acquired by him. SI2. The provisions of Arts. 488 — 491 apply corre- spondingly to set off. SUBSECTION III. NOVATION.* 513- If the parties make a contract by which any material * Novatio in Roman Law. — 135 — element of an obligation is changed, such obligation is extinguished by novation. It is deemed a change of a material element, if a con- ditional obligation is made unconditional, if a condition is added to an unconditional obligation, or if a condition is changed. The same is the case, if a bill of exchange is issued instead of performance. S14. A novation by a change of the debtor may be accom- plished by a contract between the creditor and the new debtor, but not against the will of the original debtor. 515. A novation by a change of the creditor can be set up against a third person only if made in a document having an authenticated date. 516. The provisions of Art. 468, I apply correspondingly to a novation by a change of the creditor. 517- If the obligation arising from the novation, because of an illegality in its ground or because of some reason which was unknown to the parties, does not definitely come into existence or is rescinded, the original obliga- tion is not extinguished. S18. The parties to a novation may, to the extent of the subject of the original obligation, transfer a right of — 136 — pledge or mortgage given as security for it to the new obligation ; but if such security was given by athird person, his consent is necessary. SUBSECTION IV. RELEASE. 5X9. If the creditor expresses to the debtor an intention to release the obligation, it is extinguished. SUBSECTION V. CONFUSION.t 520. If the obligation right and duty become vested in the same person, the obligation is extinguished. But this does not apply, if such obligation forms the subject of the right of a third person. f Confiisio in Koman Law. - ^37 — CHAPTER II. CONTRACTS. SECTION I. GENERAL PROVISIONS. SUBSECTION I. THE FORMATION OF A CONTRACT. 521. ' An offer to make a contract in which a time for acceptance is specified, cannot be withdrawn. If the offerer does not receive notice of acceptance A^ithin the time specified, the offer loses its effect. 522. If the notice of acceptance arrives only after the time specified, but it is apparent that it was sent in such time that in the ordinary course of things it ought to have arrived before, the offerer, unless he has already given notice of the delay, must immediately give notice to the other party of the delayed arrival. If the offerer fails to give such notice, the notice of the acceptance is deemed not to have been delayed. - 523- The offerer may treat an acceptance which comes too late as a new offer. - 138 - 524. A person who, without specifying a time for accept- ance, makes an offer to another at a distance cannot withdraw his offer within the time within which notice of acceptance might reasonably be expected. 525- The provisions of Art. 97, 2 do not apply, if the offerer has expressed a contrary intention, or if the other party had notice of the death or loss of capacity. 526. A contract between persons at a distance comes into existence at the time when the notice of acceptance is sent. If according to the expressed intention of the offerer or to a prevailing custom no notice of acceptance is necessary, the contract is deemed to come into existence at the time of the occurrence of the fact which is to be considered as an expression of intention to accept. 527. If notice of the withdrawal of an offer arrives after notice of acceptance has been sent, but it is apparent that the former was sent in such time that in the ord- inary course of things it ought to have arrived before, the acceptor must imrnediately give notice to the offerer of such delayed arrival. If the acceptor fails to give such notice, the contract is deemed not to have come into existence. 528. If a person accepts an offer, but adds a condition to it or changes it, he is deemed to have refused — 139 — the offer, and at the same time to have made a new offer. 529- A person who advertises that he will gi\e a certain reward to whoever shall do a certain act is bound to give such reward to any person who does the act. S30. The advertiser may at any time before the specified act has been completed, withdraw his advertisement by the same means which he used for advertising, unless he has declared therein that he would not withdraw it. If the advertisement cannot be withdrawn by the means aforesaid, withdrawal may be made by other means, but in such case it is valid only as against tliose persons who know of it. If the advertiser has fixed a Lime within which the specified act must be done, he is presumed to have renounced his right of withdrawal. 531- If several persons do the act specified in the advertise- ment, only that one who does it first has a right to receive the reward. If several persons do such act at the same time, each one has a right to receive an equal share of the reward. But if the reward is by its nature urisuited to be divided, or if according to the advertisement only one person can receive it, the person to receive it is deter- mined by lot. The foregoing provisions do not apply, if in the advertisement a different intention is expressed. — I40 — 532. If there are several persons who have done the act specified in the advertisement, but only the one who has done it best is to receive the reward, such advertise- ment is valid only if a time is fixed therein within which the invitation must be acted upon. The decision which of the persons who have acted upon the invitation has done so the best is to be made by the person designated in the advertisement. If no person is designated, it is to be decided by the advertiser. The persons who have acted upon the invitation have no right to contest such decision. If it is decided that several persons have done the act equally well, the provisions of Art. 531,2 apply correspondingly. • SUBSECTION II. THE EFFECT OF A CONTRACT. 533- A party to a bilateral contract may refuse perform- ance of his obligation until the other party tenders performance of his obligation. But this does not apply, if the other party's obligation is not yet due. 534- If the subject of a bilateral contract is the creation — 141 — or transfer of a real right in a specific thing, and such thing is lost or damaged by a cause which is not at- tributable to the debtor, the loss or damage falls upon the creditor. When the subject of the contract is a non-specific thing, the foregoing provisions apply from the time when the thing has become specific in accordance with the provisions of Art. 401, 2. 535- The provisions of the preceding article do not apply, if the thing which forms the subject of a bilateral contract depending upon a condition precedent is lost while the condition is pending. If the thing is injured by a cause not attributable to the debtor, the damage falls upon the creditor. If the thing is injured by a cause attributable to the debtor, the creditor, when the condition happens, may at his option either require performance of the contract or rescind it. But the right to damages is not affected thereby. 536. Except in the cases mentioned in the two preced- ing articles, if an obligation becomes impossible of performance by a cause not attributable to either party, the debtor has no right to receive the counter-p Testa- tion. If performance becomes impossible by a cause attributable to the creditor, the debtor does not lose his right to the counter-prestation ; but if he has received any benefit from being discharged from his obligation, he must surrender it to the creditor. — 142 — 537- If a party by a contract has agreed to make a presta- tion to a third person, the latter has a right to claim such prestation directly from the debtor. In sixh 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. 538. After the right of the third person has come into existence in accordance with the provisions of the preceding article, it cannot be changed or extinguished by the parties to the contract. 539- Defences based upon the contract mentioned in Art. 537 can be set up by the debtor against the third person in whose favour the contract is made. SUBSECTION III. THE RKSCIS-SION OF A CONTRACT. 540. If by the terms of the contract or by law one party is entitled to rescind the contract, that is done by an expression of intention to the other party. Such expression of intention cannot be revoked. — 143 — 541. If one party does not perform the contract, the other party may fix a reasonable time and notify him to perform within that time. If he does not perform within that time, the other party may rescind the contract. 542. If the object of the contract according to its nature or to an intention expressed by the parties can be accomph'shed only by performance at or within a specified time, and such time has expired without one of the parties having performed, the other party may rescind the contract without the notification mentioned in the preceding article. 543- If performance becomes wholly or partly impossible by a cause attributable to the debtor, the creditor may rescind the contract. 544- If one party consists of several persons, rescission of the contract can be made only by or against all of them. If in such case the right of rescission is extinguished as to one of them, it is extinguished also as to the others. S4S- If one party has exercised his right of rescission, each party must restore the other to his former condition ; but this cannot impair any right of a third person. To money which is to be repaid in the foregoing case — 144 — interest is to be added from the time when it was received. The exercise of the right of rescission does not affect a claim for damages. 546. The provisions of Art. 533 apply correspondingly to the case mentioned in the preceding article. 547- If no period is fixed for the exercise of the right of rescission, the other party may fix a period and notify the party entitled to rescind to declare within such period whether he will rescind or not. If notice of rescission is not received within such period, his right of rescission is extinguished. 548. If by his own act or fault the person entitled to rescind materially injures the thing forming the subject of the contract or becomes unable to restore it, or if by specification or making over he changes it into a thing of a different kind, his right of rescission is extin- guished. If without the act or fault of the person entitled to rescind, the thing forming the subject of the contract is lost or injured, the right to rescind is not extin- guished. — 145 — SECTION II. GIFT* 549- A gift is where one party expresses his intention to give property of his own to the other party without con- sideration, and the other party expresses his acceptance. 5 SO. A gift not expressed in writing can be rescinded by either party, except so far as performance has already been made. SSI- The donor is not Hable for defects or deficiencies in the thing or right forming the subject of the gift, unless he knew of such defect or deficiency and did not inform the donee thereof. In case of a gift subject to a charge the donor is to the extent of the charge liable as if he were a seller. 552. A gift to be made by instalments ceases to have effect on the death of either the donor or the donee. S53> To a gift subject to a charge the provisions relating to bilateral contracts apply in addition to those of this Section. * Donatio in liomiin Law. — 146 — 554- A gift to take effect at the death of the donor is governed by the provisions relating to legacies. SECTION III. SALE.* SUBSECTION I. GENERAL PROVISIONS. 555- A sale is where one party promises to transfer a property right to the other party, and the other party promises to pay him a price for it. SS6. A promise to buy or sell made by one party has the effect of a sale, as soon as the other party expresses his intention to complete the sale. If no time is fixed for such expression of intention, the promissor may fix a reasonable time and notify the other party to give a definite answer within that time whether he will complete the sale or not. If "^ Emtio vendCUo in Koitiaii Law. — 147 — within that time he does not give any definite answer, the promise loses its effect. 557- If the buyer has given bargain mone}' to the seller, either party may, before the performance of the contract has begun, rescind it ; the buyer on condition that he forfeits the bargain money, the seller on condition that he repays twice its amount. In such case the provisions of Art. 545, 3 do not apply. 558. The expenses of the contract of sale are to be borne by both parties equally. 559- The provisions of this Section apply to contracts other than sales, made upon a consideration, unless the nature of such contract does not admit of it. SUBSECTION II. THE EFFECT OF A SALE. 560. If a right of another person is made the subject of a sale, the seller is bound to acquire such right and transfer it to the buyer. — 148 — S6i. If in the case falling under the preceding article the seller is not able to acquire the right which he has sold and to transfer it to the buyer, the latter may rescind the contract ; but if he knew at the time of the contract that the right did not belong to the seller, he cannot claim damages. 562. If a seller who at the time of the contract did not know that the right which he sold was not his, is not able to acquire it and transfer it to the buyer, he may rescind the contract on making compensation for damage. If in such case the buyer knew at the time of the sale that the right which he bought did not belong to the seller, the latter may rescind the contract by merely informing the buyer that he is unable to transfer the right sold. 563- If because a part of the right which is the subject of the sale belongs to another, the seller is not able to transfer it to the buyer, the latter may claim a reduc- tion from the price in proportion to the part that is lacking. If in such case the buyer would not have bought the remaining part alone, he may rescind the contract, provided he acted in good faith. A demand for a reduction from the price or a rescis- sion of the contract does not affect the claim for damages of a buyer acting in good faith. — 149 — S64. The rights mentioned in the preceding acticle must be exercised within one year, which is computed, if the buyer acted in good faith, from the time when he first had notice of the facts, if he acted in bad faith from the time of the contract. 565. The provisions of the preceding two articles apply correspondingly, where a thing was sold with a speci- fication of its quantity, or where a part of the thing sold had already been lost at the time of the contract, and the buyer had no notice thereof. 566. If the thing sold is subject to a superficies, emphy- teusis, servitude, lien or pledge, of which the buyer did not have notice, he may rescind the contract, provided that because of such incumbrance he is unable to accomplish the object for which he made the contract. In other cases he can only claim damages. The provisions of the foregoing paragraph apply correspondingly, if a servitude which is represented to exist in favour of an immovable does not exist, or a registered lease of such immovable exists. In the preceding cases the rescission of the contract or the claim for damages must be made within one year from the time when the buyer has notice of the facts. 567. If the buyer loses the ownership of an immovable sold by reason of the exercise of a preferential right or a mortgage which existed in such immovable, he may rescind the contract. — ISO — If the buyer has preserved his ownership by expen- ditures from his own resources, he may claim reimburse- ment for such expenditures against the seller. If in either case the buyer has suffered damage, he may claim compensation. 568. The buyer at an execution sale may in accordance with the provisions of the preceding seven articles rescind the contract or claim reduction from the price against the debtor. If the debtor is insolvent, the buyer at such sale may demand from the creditors to whom the proceeds have been distributed the restoration of the whole or a part of such proceeds. If in these cases the debtor knew of the deficiency in the thing or right, and did not give notice thereof, or if the creditor who demanded the execution sale knew of such deficiency, the buyer may claim damages from the person in fault. 569. If the seller of an obligation warrants the solvency of the debtor, it is presumed that the warranty is of such solvency at the time of the conti-act. If the seller of an obligation not yet due warrants the future solvency of the debtor, it is presumed that the warranty is of such solvency at the time of the maturity of the obligation. 570. If the thing sold has a latent defect, the provisions of Art. 566 apply correspondingly ; but not, if the thing is bought at an execution sale. — isi — 571. The provisions of Art. 533 apply correspondingly to the cases mentioned in Arts. 563—566 and 570. 572. Even though the seller has specially stipulated that he shall not be liable in the cases mentioned in the preceding twelve articles, he is not exempted from liability for facts which he knew of and concealed, or for rights which he himself has created in favour of or has assigned to a third person. 573. If a time is fixed for the delivery of the thing sold, it is presumed that the same time is fixed for the pay- ment of the price. 574- If the price is payable at the same time as the de- livery of the thing, it is to be paid at the place of the delivery. 575. The fruits of a thing sold but not yet delivered belong to the seller. The buyer is bound to pay interest on the price from the day of delivery ; but if a time is fixed for the payment of the price, he is not bound to pay interest before such time. 576. If a third person asserts a right to the thing sold, and there is danger that the buyer may lose wholly or partly the right which he has bought, he may refuse to — 152 — pay the price wholly or partly according to the extent of the threatened loss ; unless the seller gives proper security. 577- If a preferential right, pledge or mortgage exists in an immovable sold, the buyer may refuse to pay the price, until the proceedings for the removal* of the encumbrance are finished; but the seller may require the buyer to proceed with such removal without delay. 578. In the cases mentioned in the preceding two articles the seller may require the buyer to deposit the price. SUBSECTION III. REPURCHASE.'*' 579- The seller of an immovable may in pursuance of a special agreement for repurchase made at the time of the sale rescind the sale on repaying the price paid by the buyer together with the expenses of the sale. Unless the parties have expressed a contrary inten- tion, the fruits of the immovable and the interest on the purchase price are deemed to have been set off against each other. 580. The duration of a right to repurchase cannot exceed * See Art. 378. f Pactum de reiroemendo in Koman Law. — 153 — ten years. If a longer period is fixed, it is to be reduced to ten years. If a period for the repurchase has been fixed, it cannot be afterwards extended. If no period is fixed, the repurchase must be made within five years. 581. A right of repurchase which has been registered together with the contract of sale is valid even against third persons. The registered right of a lessee can be set up against the original seller only for one year of its remaining duration, and not even for that, if it was registered for the purpose of injuring the seller. 582. If a creditor of an original seller proceeds to make the repurchase in his place under the provisions of Art. 423, the buyer may extinguish the right of repur- chase by performing the obligation of the seller up to such amount as remains after deducting the amount to be repaid by the seller from the actual value of the im- movable as assessed by an expert appointed by the court, and by repaying the surplus, if any, to the original seller. 583. If the seller does not tender the price and the ex- penses of the sale within the period of repurchase, he cannot afterwards repurchase. If the buyer or a subsequent acquirer has made ex- penditures upon the immovable, the original seller must make reimbursement for them according to the — 154 — provisions of Art. 196. In the case of beneficial ex- penditures the court may on the application of the original seller allow him a reasonable time for reim- bursement. 584. If a co-owner of an immovable has sold his share with a special agreement for repui'chase, and after- wards the immovable is partitioned or sold at auction, the original seller may exercise his right of repurchase agairst the share or price which the buyer has received or is to receive. If partition or auction has taken place without notice being given to the original seller, such fact cannot be set up against him. 585. If in the case mentioned in the preceding article the original buyer has bought the property at the auction, the original seller may exercise his right of repurchase on repaying the auction price and the expenses mentioned in Art. 583. In such case the original seller acquires the ownership of the whole of the immovable. If the other co-owners have demanded partition, and thereupon the original buyer has bought the thing at the auction, the original seller cannot exercise his right of repurchase as to the buyer's share only. — 155 — SECTION IV. EXCHANGE.* 586. Exchange is where the parties agree to transfer to each other property rights other than the ownership of money. If one party agrees to transfer, in addition to another right, also the ownership of money, as to such money the provisions relating to a price apply corresponding- SECTION V. LOAN.S FOR CONSUMPTION."'' 587. A loan for consumption is where one person receives from the other money or other things, and agrees to return things of the same kind, quality and quantity. 588. When a person otherwise than by a loan is bound to make a prestation in money or other things, and the * Hertim permutaUo in Koman La%v. -[• Mutuum in Boman haw. - 156 - parties agree that such things shall be the subject of a loan for consumption, such a loan is deemed to arise. 589- An agreement to make a loan ceases to be binding, if either party is adjudged bankrupt. S90. If in the case of a loan upon interest the thing lent has a latent defect, the lender is bound to furnish in its place a thing free from defects. A claim for da- mages, however, is not affected thereby. In the case of a loan without interest, the borrower may return the value of the defective thing. If, however, the lender knew of the defect and concealed it from the borrower, the provisions of the preceding paragraph apply correspondingly. 591. If the time for the return has not been fixed by the parties, the lender may fix a reasonable time and require the borrower to return within that time. The borrower may Return at any time. S92. If the borrower cannot return according to the provi- sions of Art. 587, he must pay as compensation the actual value of the thing ; but this does not apply to the case mentioned in Art. 402, 2. — 157 — SECTION VI. LOANS FOR USE.* 593- A loan for use is where one party receives a thing without consideration from the other, agreeing to re- store it after having used and taken the profits of it. 594- The borrower must use and take the profits of the thing according to the contract or to the nature of the thing lent. The borrower cannot without the consent of the lender have a third person use or take the profits of the thing lent. If the borrower acts contrary to the foregoing provi- sions, the lender may rescind the contract. 595- The borrower must bear the ordinary necessary ex- penses in regard to the thing lent. As to other expenses the provisions of Art. 583, 2 apply corre- spondingly. 596. The provisions of Art. 551 apply correspondingly to loans for use. * Commodatum in Koman Law. - 158 - 597- The borrower must restore the thing at the time fixed by the contract. If the parties have not fixed a time for the restora- tion, the borrower must restore the thing after he has finished using and taking the profits of it for the purpose specified in the contract ; but even before that time the lender may claim restoration as soon as a time reasonably sufficient for such use and taking profits of the thing has elapsed. If the parties have not fixed a time for restoration or specified the purpose of the use and taking profits, the lender may claim restoration at any time. 598. The borrower may put the thing lent back into its former condition, and take away any thing which he has annexed to it. 599- A loan for use loses its effect by the death of the borrower. 600. Compensation for damage arising from any use or taking profits of the thing contrary to the terms of the contract, and reimbursement for expenses incurred by the borrower, must be claimed within one year from the time when the thing was restored to the lender. — 159 — SECTION VII. THE HIRING OF THINGS* SUBSECTION I, GENERAL PROVISIONS. 6oi. The hiring of a thing is where one party agrees to have the other use and take profits of a thing, and the other party agrees to pay a rentt therefor. 602. If a person who has not disposing capacity or authority to do so, makes a contract of hiring, such hiring cannot be for longer than the following ■ periods : — 1. In case of the hiring of mountain or wood land for the purpose of planting or cutting trees, ten years ; 2. In case of the hiring of other land, five years ; 3. In case of the hiring of buildings, three years ; 4. In case of the hiring of movables, six months. 603. The periods mentioned in the preceding article can be extended j but such extention must be made as to land within one year, as to buildings within three months, as to movables within one month before the termination of the period. * Locatio cnniiuctio rerum in Roman Law. ■f The word " vent " is used to denote the prine of the hiring of either ramovables or movablej. — i6o — 604. The period of duration of a hiring cannot exceed twenty years. If a hiring is made for a longer period, such period is to be reduced to twenty years. The aforesaid period may be extended ; but it must not exceed twenty years from the time of the extention. SUBSECTION II. THE EFFECT OF THE HIRING OF THINGS. 605. If the hiring of an immovable is registered, it is valid against any person who afterwards acquires a real right in the immovable. 606. The letter is bound to make all repairs necessary for the use and taking profits of the thing hired. The hirer cannot refuse permission to the letter to do any act necessary to the preservation of the thing hired. 607. If the letter desires to do, against the will of the hirer, an act of preservation by reason of which it would be impossible for the hirer to accomplish the object of the hiring, the hirer may rescind the contract. 608. If the hirer has incurred necessary expenses in respect to the thing hired, which ought to have been borne by — i6i — the letter, he may claim reimbursement for them at once. If the hirer has incurred beneficial expenses, the letter must make reimbursement after the hiring has ended in accordance with the provisions of Art. 196, 2 ; but the court may on the appHcation of the letter allow a rea- sonable time to do so. 609. If in the case of the hiring of land for the purpose of taking the profits of it, the hirer because of vis major obtains from it less profits than the amount of the rent, he may claim to have the rent reduced to the amount of the profits which he has made; but this does not apply to residential land. 610. If in the case mentioned in the preceding article the hirer because of vis major obtains from the land for two consecutive years or longer less than the amount of the rent, he may rescind the contract.' 611. If a part of the thing hired is lost without the fault of the hirer, he may claim a proportional reduction from the rent. If in such case the hirer cannot with the remaining part accomplish the purpose for which he entered into the contract of hiring, he may rescind it. 612. A hirer can assign his right or sublet the thing hired only with the assent of the letter. If the hirer contrary to this provision has a third l62 — person use or take the profits of the thing, the letter may rescind the contract. 613. If the hirer rightfully sublets the thing hired, the sub- hirer is directly responsible to the original letter. In such case a payment of the rent made in advance cannot be set up against the original letter. This does not prevent the original letter from exercis- ing his right against the original hirer. 614. The rent is to be paid, as to movables, buildings and residential land at the end of each month, as to other land at the end of each year ; for things, however, for which there is a certain time for the yielding of their fruits, it must be paid immediately after such time. 615. If the thing hired needs to be repaired, or if another person asserts a right to it, the hirer must at once give notice thereof to the letter, unless the latter already has knowledge thereof. 616. The provisions of Arts. 594, i, 597, i and 598 apply correspondingly to the hiring of things. SUBSECTION III. THE TERMINATION OF A HIRING OF THINGS. 617. If the parties have not fixed a period of duration for — i63 — the contract of hiring, either party may at any time give notice to terminate it, in which case the contract terminates after the following periods have elapsed from the day of the giving of such notice : — 1. As to land, one year ; 2. As to buildings, three months ; 3. As to separate rooms or movables, one day. In the case of land for which there is a certain time for the yielding of its fruits, a notice to terminate the contract must be given after such time and before the commencement of the next period of cultivation. 618. The provisions of the preceding acticle apply corre- spondingly, when the parties have fixed a period of duration for the contract of hiring, but one or both of the parties have reserved the right to terminate it within that period. 6ig. If after the time of hiring has elapsed, the hirer con- tinues to use or take the profits of the thing hired, and the letter knowing thereof does not object, it is presum- ed that the parties have made a new contract of hiring on the same terms ; but either party may give notice to terminate it in accordance with the provisions of Art. 617. If security has been given upon the former contract, such security is released at the time when such contract terminates; but this does not apply to money deposited as security for the payment of rent. 620. The rescission of a contract of hiring takes effect — 164 — only as to the future ; but this does not affect a claim for damages, where one of the parties has been in fault. 621. If the hirer is adjudged bankrupt, the letter or the administrator in bankruptcy may, even though the duration of the hiring was fixed, give notice according to Art. 617 to terminate the contract. In that case neither party can claim compensation for damage arising from such termination. 622. The provisions of Art. 600 apply correspondingly to the hiring of things. SECTION VIII. THE HIKING OF SERVICES;* 623. A hiring of services is where one party agrees to render services to the other party, and the latter agrees to pay him a compensation therefor. 624. The person hired can claim the compensation only after he has rendered the agreed services. Compensation determined by periods can be deman- ded at the end of each period. * Locaiio condnctio operarum in Roman Liiw. - 165 - 625. The hirer can assign his right to a third person only with the assent of the person hired. The person hired can have a third person render the services in his place only Math the consent of the hirer. If the person hired has a third person render the services contrary to the foregoing provisions, the hirer may rescind the contract. 626. If the duration of the contract of hiring is for more than five years or for the life time of one of the parties or of a third person, either party may at any time after the expiration of five years rescind the contract; but as to apprentices in a commercial or industrial business such term is ten years. A person who desires to rescind such a contract according to the foregoing provisions must give notice three months beforehand. 627. If the parties have not fixed the duration of the con- tract of hiring, either party may at any time give notice to terminate it, in which case it will terminate two weeks after such notice. If the compensation is determined by periods, notice to terminate the contract may be given for the next time of payment, but not later than the end of the first half of the current period. If the compensation is determined by periods of six months or longer, notice must be given three months beforehand. — i66 — 628. Even thoL^gh the duration of the hiring" has been fixed by the parties, either party may rescind it immedi- ately for any unavoidable necessity. If, however, such necessity has arisen by the fault of the party concerned, he is liable for damages to the other party. 629. If after the period of duration of the contract has elapsed, the person hired continues to render services, and the hirer knowing thereof does not object, it is pre- sumed that the parties have made a new contract of hiring on the same terms ; but either party may give notice to terminate the contract in accordance with tlie provisions of Art. 627. If security has been given upon the former contract, it is released upon its termination ; but this does not apply to money deposited as security for good be- haviour. 630. The provisions of Art. 620. apply correspondingly to a contract for the hiring of services. 631. If the hirer is adjudged bankrupt, the person hired or the administrator in bankruptcy may, even though the period of the hiring has been fixed, give notice to terminate the contract in accordance with the provis- ions of Art. 627. In that case neither party can claim compensation for damage arising from the termination of the hiring. — i67 — SECTION IX. CONTRACT WORK.* 632. A contract for contract work is where one party agrees to accomplish a work, and the other party agrees to pay him a compensation for the result of the work. 633- The compensation is payable at the time of the deli- very of the thing contracted for. If a delivery is not necessary, the provisions of Art. 624, i apply corre- spondingly. 634- If there is a defect in the thing contracted for, the employer must fix a reasonable time and notify the contractor to make good the defect ; but this does not apply, if the defect is not material, and the making it good would be excessively expensive. The employer may in place of or in addition to the making good of the defect claim damages, in which case the provisions of Art. 533 apply correspondingly. 635- If, because of a defect in the thing contracted for, the object of the contract cannot be accomplished, the employer may rescind the contract ; but this does not apply to buildings and other structures upon land. *LocaHo conductio opreis in Roman Law. — i68 — 636. The provisions of the preceding two articles do not apply, if the defect arises from the nature of the materi- als supplied by the employer or from an order given by him, unless the contractor knew of the unfitness of the materials or the impropriety of the order, and did not give notice of it. 657- A claim for making good a defect, for damages or for the rescission of the contract as provided in the preced- ing three articles must be made within one year from the delivery of the work contracted for. If delivery is not necessary, the above mentioned period is com- puted from the time of the completion of the work. 638. A contractor for a structure to be erected on land is liable for defects in such structure or in the ground for five years from the time of delivery. For structures of stone, earth, brick or metal the period is ten years. If the structure is injured or de.stroyed by reason of one of the above mentioned defects, the employer must exercise the right mentioned in Art. 634 within one year from the time of the destruction or injury. 639. The periods mentioned in Arts. 637 and 638, i can be extended by agreement only within the limits of the ordinary period of prescription. 640. Even though a contractor has expressly stipulated that he should not be liable as provided in Arts. 634 and — 169 — 63Sj he is not exempted from liability arising from facts which he knew, but of which he omitted to give notice. 641. So long as the contractor has not completed the work, the employer may at any time rescind the contract on paying compensation for damage. 642. If the employer is adjudged bankrupt, the contractor or the administrator in bankruptcy may rescind the contract, in which case the contractor may intervene in the distribution of the assets as to his compensation for work already done and for expenses not included in such compensation. In that case neither party can claim compensation for damage arising from such rescission. SECTION X. MANDATE.* 643- A mandate is where one party directs the other to do a juristic act, and the other agrees to do so. 644. A mandatary is bound to execute the business entrusted to him according to the terms of the mand- ate, and to use the care of a good manager. * Mandatum in Roman Law. The meaning of mandatum is not tlie same as that of "agency" in English Law. — I/O — 64s • If required, the mandatary must at all times give the mandator information as to the condition, of the busi- ness to be executed by him, and after the termination of the mandate must make at once a full report. 646. The mandatary must hand over to the mandator all money and other things which he receives in the execution of the business entrusted to him. This applies to fruits taken by him. Rights which the mandatary has acquired in his own name on behalf of the mandator, must be transferred by him to the mandator. 647. If a mandatary spends for his own benefit money which he ought to deliver to the mandator or to use for him, he must pay interest thereon from the day when he spent it. If any further damage arises, he is liable to make compensation for that. 648. A mandatary is entitled to compensation only by virtue of a special agreement. If a mandatary is to receive compensation, he can claim it only after the mandate is performed ; but if compensation is determined by periods, the provisions of Art. 624, 2 apply correspondingly. If the mandate terminates for some cause not attributable to the mandatary, before it is completely — 171 — performed, the mandatary may claim compensation in proportion to what has been done. 649. If expenses will have to be incurred in the execution of the mandate, the mandator must on the demand of the mandatary furnish the amount of them in advance. 650. If the mandatary in the execution of the business entrusted to him, has incurred expenses which could reasonably be regarded as necessary, he may claim as against the mandator reimbursement for such expenses together with interest on them from the day when they were incurred. If the mandatary in executing the business entrust- ed to him has assumed an obligation which could rea- sonably be regarded as necessary, he may require the mandator to perform it in his place or, if its time of maturity has not yet arrived, to give proper security. If the mandatary by reason of the execution of the business entrusted to him has suffered damage without fault on his pait, he may claim compensation from the mandator. 651. A mandate may be terminated at any time by either party. If one party terminates the contract at a time which is disadvantageous to the other party, he must make compensation for any damage caused thereby, unless the termination was made for some unavoidable necessity. — 172 — 652. The provisions of Art. 620 apply correspondingly to a mandate. 653- A mandate is terminated by the death or bankruptcy of the mandator or the mandatary, or by the man- datary's being adjudged incompetent. 654. If even after a mandate has terminated any pressing emergency arises, the mandatary or his heir or legal representative must take all necessary measures, until the mandator, his heir or legal representative can him- self take charge of the business. 655. No cause for the termination of the mandate on the part of the mandator or of the mandatary can be set up against the other party, until he has been notified or had knowledge of it. 656. The provisions of this Section apply correspondingly to a mandate whose subject is other than the doing of a juristic act. — 173 — SECTION XI. DEPOSIT * 057- A deposit is where one party receives a thing and agrees to keep it for the other party. 658. A depositary is not allowed without the assent of the depositor to use the thing or to have a third person keep it. When the depositary is permitted to have a third person keep the thing, the provisions of Arts. 105 and 107, 2 apply. 659. A person who receives a deposit M'ithout considera- tion is bound to take the same care of it as he does of his own property. 660. If a third person who asserts a right to the thing deposited sues the depositary or seizes it under legal process against him, the depositary must without delay give notice thereof to the depositor. 661. The depositor must compensate the depositary for * Depositum in Koman Law. — 174 — any damage arising from the nature of or any defect in the thing deposited, unless the depositor without fault on his part was ignorant of such nature or defect, or the depositary knew of it. 662. Even though the parties have fixed a time for the return of the thing deposited, the depositor may demand its return at any time. 663. If the parties have not fixed a time for the return of the thing deposited, the depositor may return it at any time. If the time for return is fixed, the depositary may return it before such time only in case of unavoidable necessity. 664. The return of the thing deposited is to be made at the place where it was to be kept ; but if the depositary has for any good reason removed it to another place, it is to be returned at the place where it actually is. 665. The provisions of Arts. 646 — 649 an