Page:Civil code of Japan compared with French (1902-06-01).pdf/2

404 — When a party to an obligation fails to perform or to accept performance of the obligation in time, he is said to be {{italic|in mora, to use the expression of the Roman law, and heavier duties are imposed upon parties in that condition. The Japanese Code provides, in this connection, that if a certain time is designated for the performance of the obligation, the debtor is {{italic|in mora}} from such time; if a time which is uncertain has been designated for the performance of the obligation, the debtor is {{italic|in mora}} after he has notice that such time has arrived; that if no time has been designated for the performance of the obligation, the debtor is {{italic|in mora}} after a demand for performance has been made upon him (Article 412). Thus, according to the Japanese Code in the first case, the mere arrival of time places the debtor {{italic|in mora}}, without any action on the part of the creditor. The French law on the other hand makes an express agreement on the subject between the parties necessary. The Japanese law, like the German, has recognized the principle that time itself is notice to the debtor. According to the French Code the creditor is never placed {{italic|in mora}}, but the Japanese Code provides that if the creditor refuses to accept the performance of the obligation, he is {{italic|in mora}} from the time a tender of performance is made to him. No explanation is required why a creditor who refuses to accept the performance of an obligation should be placed in the same category with a debtor who neglects to perform it. The offer of performance does not extinguish the obligation, but the creditor who refuses to accept performance is answerable for any damages occasioned thereby to the debtor.

Where the nature of an obligation is such as not to admit of compulsory performance, no demand for specific performance can be made. The French and Japanese Codes on this point are identical, but the reasons for the rule are different. The framers and expounders of the French Code say that if a demand for specific performance should be allowed on such cases, it would restrain the personal liberty of the debtor. Hence the wording of the French law runs: “All obligations to do or not to do resolve themselves in damages, in case of non-execution on the part of the obligee.” This, however, is hardly logical, for all obligations, in so far as they constitute the rights of the creditor, are restraints on the freedom of the debtor. The view taken by the framers of the Japanese Code was that the creditor, on the one hand, is entitled to the benefit of full performance of the obligation so far as such performance is possible and that the debtor, on the other hand, rests under the correlative duty to make, to the same extent, a like full performance