Page:Civil code of Japan compared with French (1902-05-01).pdf/13

366 To treat it as mere possession would not satisfactorily protect the right of the superficiary. The Japanese Code, therefore, has given a special place to this right, which with emphyteusis, is the broadest right that exists as regards land next to ownership.

The definition of emphyteusis is found in Article 270 of the Japanese Code. It runs thus: “An emphyteuticary is one who possesses the right on payment of rent as a farmer to cultivate the land of another person, or to rear upon it horses and cattle.” Emphyteusis differs from superficies in the fact that it confers the right to cultivate the land or to rear upon it horses and cattle and entails the payment of rent. It also differs from superficies in regard to the length of time for which it may be created. There is a special provision in Article 278 on this point to the effect that the duration of the right of emphyteusis shall be from twenty to fifty years. If a right of emphyteusis is created for a longer period than fifty years it must be reduced to that limit. There is no such provision with reference to superfices. The compensation for emphyteusis cannot be paid once for all at the time of the creation of the right, for the word rent means annual rent. This is simply the recognition of a Japanese custom which prevailed for hundreds of years previous to the codification. As to duration, however, the Code has departed from the custom, for formerly a sort of perpetual lease could be created which was interminable without the consent of the lessee, nor could the rent thereof be altered without his assent. In the French Code no such right is recognized. The corresponding provisions may be found in the Third Book, under the heading, or the contract of letting, where the letting of land and houses is treated in connection with the letting of personal property and the hiring of work and labor. In spite of the fact that the framers of the Japanese Code tried to avoid the creation of rights wherever it was possible, this species of right is given an important place as a right. The reason is obvious: Japan has been from time immemorial an agricultural country. The land has been the chief source of revenue. Hence there were minute customs regarding the dispositions which might be made of land, among which a right very nearly corresponding to emphyteusis occupied an important place. The Code simply adopted the custom with necessary modifications.

— The French Code defines servitude from the standpoint of duty and says that a servitude is a charge imposed upon land for the use and benefit of land belonging to a different owner. The Japanese Code defines it from the standpoint of right. Article 280 reads thus: “A person in whom a right of