Page:Civil code of Japan compared with French (1902-06-01).pdf/5

Rh bear the portion which the insolvent debtor is bound to pay. On this point the French law provides (Article 1215), that the portion of the obligation which would have been borne by the insolvent debtor is to be contributed by the solvent debtors The Japanese Code, on the other hand, declares in Article 445, that if a joint debtor has obtained release from the joint liability, and one of the remaining joint debtors is without sufficient means to repay his share of the obligation, the creditor bears the share which the debtor who has been released from liability would have borne, in respect of that portion of the joint obligation which the insolvent debtor is unable to pay. It is plain that the responsibility of other joint debtors can not be increased by any transaction between one joint debtor and the creditor; hence the portion of the obligation of the insolvent debtor ought not to be charged to the remaining debtors. It is also clear that the creditor, in giving release to a joint debtor, intended to discharge him from all liability in respect of the obligation. If such a debtor should be required to contribute his share after his release, even in case there were insolvent debtors, the effect of the release would not be complete. By making the creditor bear the burden, the rights of the remaining debtors are not infringed, and the debtor who has obtained release is entirely freed from obligation, and the creditor has no grounds for complaint, because it was he who granted the release.

— Suretyship is a contract by which a person binds himself to perform an obligation in case the principal debtor does not perform it. The obligation is usually created at the same time as the principal obligation and with the knowledge and consent of the principal debtor. But it may be created at a different time and without the knowledge or consent of the principal debtor. It being an accessory contract to secure the performance of the principal obligation it naturally follows the condition of the principal obligation, if for any reason such principal obligation is at any time extinguished. In certain cases, however, it was thought necessary to make exceptions. Article 2012 of the French Code states as a general rule that suretyship can only be made upon a valid obligation, and in the second clause of the same article, it is provided that where an obligation may be invalidated for reasons purely to the debtor, such an obligation may form the subject of the contract of suretyship and there is given as an example the obligations entered into by minors. If, therefore, a minor on reaching majority, cancels an obligation entered into during minority, the contract of suretyship remains in force. In such cases, the French jurists hold that