Page:Civil code of Japan compared with French (1902-06-01).pdf/4

406 as to the other debtors; that a demand for performance made to one joint debtor has effect against all the debtors, and that if a novation is effected between one of the joint debtors and the creditor, the latter’s claim is extinguished as to all the joint debtors. Neither in the French nor the Japanese Code are joint obligations ever presumed. They can only be brought into existence in virtue of express provisions contained in the act creating the obligations (Japanese Code, Article 427; French Code, Articles 1197, 1202).

In case one of the joint debtors having a claim against the creditor, establishes a set-off, the creditor’s claim is extinguished for the benefit of all. Respecting the question whether the other joint debtors ought to be allowed to raise the plea of set-off when the joint debtor having the claim does not do so, the Japanese Code provides that such plea may be so raised in so far as such debtor’s share of the joint obligation is concerned. The French law expressly prohibits such a plea. Article 1294 is explicit on the subject. It declares that a joint debtor can not plead as a set-off that which the creditor owes to his co-debtor. The German law on the subject is the same (Article 422). Theoretically speaking, the Japanese law is opposed to the principle that in the case of a joint obligation, each debtor is liable for the performance of the whole obligation and that the plea of set-off can only be raised by the debtor who has a claim against the creditor. But on the practical grounds of convenience there are reasons for preferring the Japanese rule. To say that a joint debtor is liable for the performance of the whole obligation only determines his relation to the creditor. As between the debtors it is enough if he performs his share of the obligation, and when he performs the obligation beyond his share, to that extent he performs an obligation belonging to another, for which the right to demand contribution exists. Now under the French law, if the demand for performance be made by the creditor upon a joint debtor having no claim to plead in set-off, the latter would have to perform the whole obligation and look to his co-debtor for his share of the obligation, while such co-debtor would in turn have his remedy against the creditor in the form of an independent claim. If in such cases the obligations were not voluntarily performed, there would result according to the French rule, three sets of action, while by the Japanese law the multiplicity of litigation is avoided.

In case a joint debtor has obtained from the creditor release from the joint lability, and one or more of the remaining joint debtors have not the means to perform, the question arises who is