Page:Civil code of Japan compared with French (1902-05-01).pdf/9

362 intention of the parties. Articles 177 and 178 make registration, in case of immovables and delivery in case of movables, essential in order to make the right available against third persons. It is to be observed that this requirement, — registration or delivery — is absolutely essential, or in other words, that in order to set up a right against third persons, registration or delivery, as the case may be, must have been actually effected. It is no answer to say that the third person had knowledge of the transaction.

— The French Code treats of possession under the heading of Prescription. The Japanese Code gives it a special place as a species of rights. Possession, apart from being a footing for the establishment of other important rights, is in itself a right worthy of the protection of law. According to Roman law and the codes based upon that system, possession is defined to be the holding of a thing with an intention to acquire the ownership thereof. This definition is clearly too narrow, since the detention of a thing by a pledge or the holding of a thing under a contract of letting and hiring for instance, would equally be possession, although lacking the intention on the part of the possessor to acquire ownership. Yet such possession ought to be an object of the law’s solicitude. The Japanese Code uses these words: “The right of possession is acquired by holding a thing with intention of doing so on one’s own behalf.” Thus possessory right is extended to all cases where a person holds a thing for his own benefit, irrespective of the question whether he has an intention to hold it as an owner or not.

The French definition of possession (Art. 2228) may be rendered thus: “Possession is the detention or enjoyment, of a thing or a right, which we hold or exercise ourselves or by another who holds or exercises it in our name.” To call the exercise of a right, a possession betrays laxity of expression inconsistent with good legislation. We have confined the term “possession” to a right over a thing and, as I have said before, the word thing is limited to its ordinary signification; it therefore became necessary to introduce into the Japanese Code a separate section entitled Quasi-Possession, where in it is enacted that the provisions of the chapter relating to Right of PossssionPossession [sic] shall extend to cases where a person exercises rights over property with the intention of doing so on his own behalf. By this means all the provisions relating to the possession of a thing are extended to the exercise of rights over property. In the earlier Roman law the principle of quasi-possession was applied only to the exercise of the right of servitude. Later it was extended