Page:Civil code of Japan compared with French (1902-05-01).pdf/4

Rh term “things” and applies it exclusively to material objects (Art. 85).

— In the French Code, the principles relating to expression of intention are treated under the heading of agreements. But correctly speaking the question of the expression of intention is not limited to agreements. It has an equally important relation to unilateral and other legal acts, and therefore in the Japanese Code it is placed in Book I, where legal principles common to all legal acts are enunciated. The French Code provides that contracts founded on error are voidable, but does not make them void, and it also enumerates cases in which such contracts can be avoided. The provision of the point in the German Code is to the effect that in cases where, if there had been no error, there would have been no expression of intention, such expression is void. The enumeration of cases in the French Code may not be sufficient to meet all contingencies likely to arise under varying circumstances, while to decide by the consideration of subjective reasons, as in the German Code, would unnecessarily increase litigation. The Japanese Civil Code provides that if in an expression of intention, a mistake in the essential elements of legal acts is made the expression is void, thus dispensing with the enumeration and the subjective consideration of the state of mind of the parties.

Regarding an expression of intention made to a person in another place, the question when it begins to produce a legal effect is an important but difficult one. On this point the opinions of jurists differ and there is a lack of uniformity in legislative precedents. No special provision on the subject exists in the French Code. The Japanese Code adopts as a general principle the rule that an expression of intention made to a person at a distance takes effect from the time that notice reaches him (Art. 97), but exception is made in the case of contracts between persons living in different places. In such cases contracts are concluded when notice of acceptance is despatched. On theoretical grounds the general principle is to be recommended, but in practice, and especially in business matters, it would be more convenient and more conducive to the interests of the parties to have their rights and duties determined with as little delay as possible. Besides, the speed and certainty of modern means of communication leave little danger as to the miscarriage of notices of acceptance.

— The French Code treats agency and mandates under the same head in Book III, Tit. 13. But agency is created not by contract alone. In many cases it is the result of the operation of