Page:Civil code of Japan compared with French (1902-05-01).pdf/10

Rh not only to the exercise of all property right, but also to rights arising out of family relations and even of religion. Similarly in the French Code the application of this principle is not limited to property rights, but rights arising out of personal status may be made the subject of this right (French Code, Arts. 195, 196, 322). The extended application of this species of right to rights other than property rights, has been condemned by modern jurists. For instance, the doctrine of quasi-possession as applied to the right of a husband would be derogatory to modern notions of good morals and public order. Accordingly in the Japanese Code, as has already been remarked, the principle is made applicable only to the property rights.

— With reference to the right of animals not domestic, the French Code contains a peculiar provision. In the 2d section of the chapter treating of Accession in respect of immovables, there appears a clause to the following effect: “Pigeons, rabbits and fish, which betake themselves to cots, warrens and ponds owned by another person, belong to such other person provided no fraud or artifice had been employed to entice them.” Without stopping to enquire why pigeons and rabbits have been selected in preference to other birds and quadrupeds, it is difficult to conceive how the principle of accession can logically be made to apply such cases. The theory of accession is that where two or more things are united in such a manner that they can not be separated, or that separation would cause deterioration, depreciation or unreasonable expense, the ownership of the whole should devolve on the person who owned one of the things before the union was effected. Pigeons, rabbits and fish may be easily separated without any damage either to themselves or to their cots, warrens or ponds, and consequently there does not seem to be any good reason why the law should step in and deprive the former owners of their proprietoryproprietary [sic] rights. The Japanese Code prescribes the effect of possession of non-domestic animals in the following terms: “A person who possesses an animal other than a domestic animal, which was formerly kept by another acquires the rights he exercises over it, if in the beginning of his possession he acted in good faith, and if within one month from the date of its escape he receives no demand from its former keeper.” It will thus be seen that in this instance, according to Japanese law, the acquisition of rights is based on the fact of possession.

— A possessory action is an action based on the mere fact of possesionpossession [sic], while apetitory action is a suit