Page:Civil code of Japan compared with French (1902-06-01).pdf/12

414 benefit of a third person should be enforceable. The contract of life insurance is a very good illustration. The contract is entered into between the insurance company and a living person, but the obligation on the part of the insurer is to be performed to a third person upon the death of the insured. The Japanese Code provides that if a party to a contract has agreed to make a prestation to a third person, the latter has the right to claim such prestation directly from the former, and that in such case the right of the third person comes into existence at the time when he expresses to the debtor his intention to take the benefit of the contract. The German Code goes still further, and provides that the obligation is at once created between the debtor and the third person without any expression of intention on the part of the third party to take the benefit of the contract. Even a benefit can not be forced on another, and therefore the German Code provides further that in case the third person expresses an intention that he does not desire to take the benefit of the contract, then the obligation is deemed not to have been created ab initio.

— With respect to the mode of rescinding a contract the Japanese Code provides that if by virtue of the contract itself, or of a provision of law, one of the parties has the right to rescind it, this is effected by means of an expression of intention made to the other party (Article 540). The French Code, on the other hand, enacts that rescission must be made by an application to the court (Article 1134). A legal proceeding always means a certain amount of delay and expense. The Japanese has adopted the simpler method.

Both the French and German Codes make donation a formal contract, that is, to say, it must be evidenced by certain documents prescribed by law. The reason usually assigned is the necessity to prevent persons from hasty acts. It is a relic of that false assumption which formerly assigned to legislators a greater measure of wisdom than was possessed by the people. Such a restriction is not only inconvenient, but it often prevents persons from exercising their intention. According to the Japanese Code, donation takes effect when one of the parties expresses his intention of giving property of his own to the other party without consideration, and the other party accepts the gift. But a gift not expressed in writing can be rescinded by either party, except so far as performance has already been made.

— The definition of sale is found in Article 555 of the Japanese Code. It is there stated that a sale is effected when one of the