Page:Civil code of Japan compared with French (1902-05-01).pdf/8

Rh changes in actual ownership. On economical grounds, however, the advantage of such a right is to be questioned; for the person who is in the enjoyment of such a right, considering that the property over which the right is established must sooner or later revert to the owner, would naturally be slow to make any permanent improvements. On the contrary he might not hesitate to extract a maximum of profit with a minimum of thought for the permanent interest of the property. Again, an owner who is not in the present enjoyment of his property will not incur expenses the benefit of which may or may not accrue to himself. Thus nature which ought to be made to contribute its full measure to the wants of man, is only half utilized and the result is not only individually uneconomical to the parties concerned, but injurious to society of which they are conponentscomponents [sic]. It is undesirable, therefore, that such a right should be created if the desired object may be attained by other method, and there are such methods by which provisions can be made for persons in the situations above referred to. Annuities may be granted or rights secured by mortgage may be given. It is not absolutely necessary to resort to so questionable a system as Usufruct, Use or Habitation. Many countries have done without it. The people governed by Anglo-American jurisprudence are not aware of it. They have attained the desired result by laws relating to trust, — a creature of equity peculiar to that jurisprudence. Hence Usufruct, Use and Habitation of the French Code, which were also found in the Japanese Code of 1890 form no part of the Code we are now considering.

. — For the creation of rights the Roman law made it a condition that certain prescribed forms should be complied with, so in the English law deeds were necessary in order to establish certain rights. The German Code (Arts. 873, 929) also requires compliance with prescribed forms for the creation of rights. The French Code (Art. 1583), treating of sale, provides that the sale is complete between the parties as soon as there is an agreement as to the thing and the price. The history of jurisprudence shows a marked distinction between ancient and modern practice in the fact that formerly there was a strict adherence to forms while the present tendency is in the direction of simplification. A glance at the old English common law practice and the present code practice will show the truth of this statement. The Japanese Civil Code (Art. 176) boldly enunciates the principle that the creation and transfer of rights derive their validity solely from the expression of