Page:Civil code of Japan compared with French (1902-05-01).pdf/15

368 origin in an unlawful act.” The Code then proceeds to determine what a person may, and may not do, in respect of the thing over which he has the right of lien, and ends by providing for its extinction. In the French Code this subject is not included under an independent heading, but provisions relating to it are scattered here and there as occasion or necessity arises; e.g., Article 867, where right of lien is given to the one of several co-heirs, who has incurred expenses in respect of the property inherited; Articles 1612, 1613, 1673, where rules are specified for rights of lien arising out of sales. If the main object of codification is to simplify and systematize the various rules of law, I need not dwell on the advantage of the Japanese Code as regards this matter.

— No provisions for preferential rights are found in the German Civil Code. But they are made the subject-matter of the law of bankruptcy, the reason given being that the question of preferential rights arises only when the debtor is insolvent and that therefore, they ought not be provided for in the substantive law. If this reasoning is correct, then the rules relating to pledges and mortgages ought also to be excluded from the Civil Code, for so long as a debtor can satisfy the claims of all his creditors, no questions will be raised regarding the securities for his debts.

According to the Japanese Code, preferential rights are either general or special. A general preferential right covers all the property of the debtor, while a special preferential right holds good only with reference to a particular piece of property. A person in whose favor an obligation exists, based upon any of the following grounds has a preferential right in all the property of the debtor: 1. Expenses for the common benefit, that is, the expenses incurred for the common benefit of the creditors in regard to the preservation, liquidation or distribution of the debtor’s property; 2. Funeral expenses; 3. Wages of employees; 4. Supplies of the necessaries of life.

Special preferential rights are rights that can be exercised in relation to special pieces of property, whether movables or immovables. A person in whose favor an obligation exists, based on one of the following grounds, has a preferential right as regards particular movables belonging to the debtor: 1. Hiring of an immovable; 2. Lodging in an inn; 3. Transportation of travelers 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.