Page:Civil code of Japan compared with French (1902-05-01).pdf/6

Rh ” According to the German Code the condition does not relate back to the date of the contract (Art. 158). The opinions of jurists on this point differ. The Japanese Code provides as a general principle that an act subject to a condition precedent takes effect from the time of the happening of the condition and does not relate back to the date of the contract. But where there is an express agreement to the contrary, legal effect is given to such an agreement (Art. 127). It is a fundamental principle of jurisprudence that laws have no retroactive effect; and so with reference to legal acts it is ordinarily wise to confine their effect to the future; for by giving them a retroactive effect not only complicated questions may arise between the parties, but the rights of third persons may be disturbed.

— The French Code treats of prescription in Book III as a mode of acquiring ownership and the German Code places extinctive prescription in Book I (General Rules), and acquisitive prescription in Book III (Rights ). Prescription does not relate to ownership alone, neither does acquisitive prescription have exclusive reference to rights. Consequently neither the French nor the German arrangement seems to be satisfactory. As to the nature of prescription there are two ways of viewing it. It may be considered as the presumption of law in regard to the acquisition of rights or extinction of duties, in fact, as a principle of the law of evidence; or it may be considered as a title for the acquisition of rights and a cause for the extinction of duties. The Japanese Code has adopted the latter theory and enacts that the possession of a thing with an intention of owning it for a certain period creates a title of ownership, and the non-user of a right for a certain period extinguishes the right.

The of prescription is that property should be entrusted to the persons who take good care of it and who are likely to make improvements upon it, to the indirect benefit of the nation, and should not be left to persons who do not make profitable use of it. It seems reasonable therefore that prescription should be made a title for acquiring ownership and a cause for losing it, rather than that it should be treated as a mere matter of evidence. As to movables, by Art. 2279, of the French Code, the principle “” is recognized. The same principle is recognized in the Japanese Code, but not on the ground of prescription. The provision on the subject is found in Art. 192, wherein the right to exercise the right of ownership is treated as a consequence of peaceable possession in good faith. Time being an essential element in the theory