Page:Civil code of Japan compared with French (1902-06-01).pdf/7

Rh a third person acting in good faith. If, therefore, the debtor desires to protect himself against the possibility of being obliged to perform his obligation to a new or strange creditor, he has only to express such an intention in the instrument creating the obligation. The assignment of the obligation being accompanied by the delivery of the instrument to the new creditor, the latter would not be able to plead ignorance. A further protection for the debtor is found in Article 467, where it is provided that the assignment of a right in which the creditor is specified by name can not be set up against the debtor, or a third person, unless the assignor has notified the debtor of the assignment, or the latter has given his consent thereto. Upon this point, according to the French law, the notice to the debtor may be given either by the assignor or the assignee, but as against persons other than the debtor, the notice must be given by the assignee (Articles 1690, 1691). This provision is open to criticism for under it, it is possible for a person to whom an assignment has not really been made, to pretend the contrary, and thus to practice a fraud on the debtor or other third persons. Certainty would be secured if the law should provide that the notice must be given jointly by the assignor and assignee, but that would be at the cost of delay. Hence the Japanese Code, as well as the German Code, simply provides that it is sufficient if the notice of the assignment is given by assignor only.

— Consistently with the principle adopted in respect of the assignment of rights, the Japanese Code enacts that performance of an obligation may be made by any third person, unless its nature does not admit of it, or the parties concerned have expressed a contrary intention. It is further enacted that a person who has no interest in the performance, can not make performance against the will of the debtor (Article 474).

Article 480 provides that a person who produces a receipt is deemed to have authority to receive performance. No similar provision is found in the French Code or in any of the codes promulgated previous to the Japanese Code. It is not, however, a new departure in Japan. It is in accord with the custom which formerly obtained and the Code has simply made it a legal presumption. It is to be recommended for the reason that it simplifies the manner of performance. The German Code has also adopted the same rule (Article 370).

As to the place where the performance is to be made in absence of express contract, — whether at the domicile of the creditor or that of the debtor, or the domicile of the debtor at the time the obligation