Page:Civil code of Japan compared with French (1902-06-01).pdf/13

Rh parties agrees to transfer a property right to the other party and the latter agrees to pay him a price therefor. When the property of another person is made the subject of a sale, the French law expressly states that there exists no sale, but gives the purchaser the right to demand damages if he was ignorant of the fact. The Japanese Code has adopted the contrary principle. Article 560 reads: “If a right of another person is made the subject of a sale, the seller is bound to acquire such right and transfer it to the buyer.” If the effect of a sale is to transfer the ownership itself, then as a logical consequence the sale of a thing over which the seller has no ownership must be regarded as null and void, but by Japanese law a sale of this kind only creates an obligation to transfer the ownership, but does not transfer it. Therefore the sale of a right belonging to another need not necessarily be considered as null and void, but the intention of the parties is carried out by compelling the seller to obtain such a right and transfer it to the buyer.

The French and German Codes recognize the contract of repurchase as to movables (French Code, Article 1659; German Code, Article 497). It is denned to be a contract by which the seller reserves to himself the right to retake the thing sold, by restoring the purchase money with interest, and incidental expenses incurred by the buyer. The Japanese Code simply limits this species of contract to immovables, for in respect of immovables the contract may be registered and notice thereby given to third persons of its existence, but, no method, by which such notice can be given, exists in regard to movables. The ownership of a movable is transferred by mere delivery of the thing, and therefore, if the purchaser should transfer it to a third person the original seller’s right of repurchase would not bind the new purchaser. Hence even if this contract were recognized by law it would be impossible to secure the inforcement thereof, accordingly it was omitted from the present Japanese Code. On the subject of the sale of immovables the French law contains a peculiar provision to the effect that the seller may rescind the contract within two years, if the price obtained for it is found to be so low that his loss amounts to over seven-twelfths of the actual value. The absurdity of such a provision need not be commented on. In these days perfect freedom is given to sellers and buyers to sell and buy at whatever prices they may agree upon. I need hardly add that nothing of the kind finds a place in the Japanese Code.

— Hiring and letting is the of the Roman law. It is effected when one of the parties