Page:Civil code of Japan compared with French (1902-06-01).pdf/3

Rh of the same according to the original intentions. Accordingly, the provisions of the Japanese Code on the subject are as follows: “If the debtor fails to perform his obligation voluntarily, the creditor may apply to the court for compulsory performance, except where the nature of the obligation does not admit of it. If the subject of the obligation is the doing of an act, the creditor may apply to the court to have it done by a third person at the debtor’s expense; but if the subject of the obligation is the doing of a legal act, the decree of the court stands in the place of an expression of intention by the debtor. As to an obligation whose subject is the forbearance from an act, the creditor may apply to the court to have such acts as have been done undone, and proper measures taken for the future. These provisions do not affect the right to claim damages.”

The clear intention of the law is that the creditor shall be protected to the fullest extent, and as nearly as possible according to the original intention of the parties. The provision allowing an application to the court to have the obligation performed by a third person at the expense of the debtor is a new conception, which finds its first expression, it is believed, in the Japanese Code.

— Joint obligations, or, are, in the French Code, divided into “” between the creditors, and “” on the part of the debtors. The latter corresponds to joint and several liability. When each one of the several creditors can demand the performance of an obligation and the performance made to one of them frees the debtor as against all, even where the benefit thereof is capable of division, the obligation is said to be between all creditors. It is at the choice of the debtor to make performance to any of the creditors, unless he is prevented from doing so by the prosecution of one or more other creditors. These provisions are entirely omitted from the Japanese Code, not because they are considered harmful, nor with an intention of prohibiting the creation of such an obligation, but because as a matter of practice there is little occasion for it, and in case such an occasion should arise, it can be met by other methods recognized by law. Concerning joint obligations in respect of debtors, the Japanese Code provides that where several persons are liable for a joint obligation, the creditor may demand performance of the whole obligation, or only a part of it, either from one of the debtors, or at the same time or successively from all the debtors; that the existence of a reason for the invalidity or rescission of a legal act as to one of the joint debtors, does not impair the validity of the obligation