Page:Civil code of Japan compared with French (1902-05-01).pdf/14

Rh easement is vested has the right to make use of the land of another person for the benefit of his own land in accordance with the object specified in the act creating the right.” The land for the benefit of which other land is used, is usually called dominant tenement and the latter is styled servient tenement. Hence the mistaken notion arises that there is a relation of right and duty between two pieces of land, that a right is vested in the dominant tenement and the corresponding duty is imposed on the servient tenement. It is well enough to speak thus figuratively for the purpose of explanation, but we must not be led to draw the false conclusion that a right can be vested in a thing and a duty may be imposed upon a thing. The above definition presupposes that an easement is created by the act of the parties. The Japanese law differs from the French on this point, as has been indicated before, for a large number of rights which are treated as limits of ownership, in the former, are classed in the latter with servitudes, both as created by the act of the parties and by the operation of law. But this should not be interpreted to mean that such a right can not be acquired by prescription, for the rules relating to acquisitive and extinctive prescription, being placed among the General Provisions are applicable to all classes of rights, unless a special and express exception is stated. Not only is no such exception made in this case, but special provisions are inserted in Article 289 and the subsequent articles for the application of the general rules of prescription.

The German Civil Code recognizes another kind of servitude which may be styled personal servitude, that is, a right vested in a person irrespective of his own land, to make use of the land of another. This is not found in the Japanese Code, the reason being that the creation of a right over a thing owned by another person ought to be avoided when it is possible, and because there was no urgent reason for the establishment of such a right irrespective of the ownership of land.

— Four kinds of rights remain to be noticed. They are Liens, Preferential Rights, Pledges and Mortgages. All these differ from the rights treated of before, in the fact that they may be called secondary rights for securing rights.

The Japanese Code devotes a chapter to liens. It defines a lien in the following terms: “If a person who has the possession of a thing which belongs to another has a claim against the owner arising cut of the thing in question, he may detain the thing until his claim is satisfied. But this rule does not apply to cases where the time for satisfaction has not yet arrived.” “The provisions of the preceding clause shall not be applied to cases where possession had its