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Laws of Japan |
This English translation of the Civil Code has been translated through the revisions of Act No.
87 of 2005 Effective May 1,
2006 in compliance with the Standard Bilingual Dictionary March
2006 edition .
This is an unofficial translation. Only
the original Japanese texts of laws and regulations have
legal effect, and the translations are to be used solely as reference material
to aid in the
understanding of Japanese laws and regulations.
The Government of Japan shall not be responsible for the accuracy,
reliability or currency of the
legislative material provided in this Website, or for any consequence resulting from use of the
information in this Website. For all purposes of interpreting and applying law to any legal issue or
dispute, users should consult
the original Japanese texts published in the Official Gazette.
Civil Code Act No. 89 of 1896
Part I General Provisions
Chapter 1 Common Provisions
Article 1 (Fundamental Principles)
(1) Private rights must conform to the public welfare.
(2) The exercise of rights and performance of duties must be done in good faith.
(3) No abuse of rights is permitted.
Article 2
(Standard for Construction)
This Code must be construed in accordance with honoring the dignity of
individuals and the essential
equality of both sexes.
Chapter 2 Person
Section I Capacity to Hold Rights
Article 3
1 The enjoyment
of private rights shall commence at birth.
2 Unless otherwise provided by applicable laws, regulations or treaties, foreign
nationals shall enjoy private rights.
Section II Capacity to Act
-1-
Article 4 Age of Majority
The age of majority is reached when a person has reached the age of 20.
Article 5 Juristic Act
of Minors
1 A minor must obtain the consent of his/her statutory agent to perform any
juristic act; provided, however, that,
this shall not apply to an act merely intended
to acquire a right or to be relieved of a duty.
2 A juristic act in contravention
of the provision of the preceding paragraph may
be rescinded.
3 Notwithstanding the provision of paragraph 1, in cases the statutory
agent
permits the disposition of property by specifying the purpose thereof, a minor may
freely dispose of the same to the extent
of such purpose. The same shall apply in
cases his/her statutory agent permits the disposition of the property without
specifying
any purpose.
Article 6 Permission for Minors to Carry on Business
1 A minor who is permitted to carry on one or more kinds of
business shall have
the same capacity to act as a person of the age of majority as far as such business
is concerned.
2 In
the case set forth in the preceding paragraph, if the minor may be unable to
perform the relevant business for any reason, his/her
statutory agent may revoke
or limit permission in accordance with the provisions of Part IV Relatives .
Article 7 Order for Commencement
of Guardianship
With respect to any person who constantly lacks the capacity to discern right and
wrong due to mental disability,
the family court may order the commencement of
guardianship at the request of the person in question, his/her spouse, any relative
within the fourth degree of kinship, the guardian of a minor, the supervisor of the
guardian of a minor, the curator, the supervisor
of the curator, the assistant, the
supervisor of the assistant, or a public prosecutor.
Article 8 Adult Ward and Guardian of Adult
A person who has become subject to the order of commencement of guardianship
shall be an adult ward, and a guardian of an adult
shall be appointed for him/her.
Article 9 Juristic Act of an Adult Ward under Guardianship
A juristic act performed by an adult
ward may be rescinded; provided, however,
that, this shall not apply to any act relating to daily life, such as the purchase of
daily
household items.
-2-
Article 10 Rescission of Order for Commencement of Guardianship
When the cause set forth in Article 7
ceases to exist, the family court must rescind
the order of the commencement of guardianship at the request of the person in
question,
his/her spouse, any relative within the fourth degree of kinship, the
guardian hereinafter referring to the guardian of a minor and
the guardian of an
adult , the supervisor of the guardian hereinafter referring to the supervisor of the
guardian of a minor and
the supervisor of the guardian of an adult , or a public
prosecutor.
Article 11 Order of Commencement of Curatorship
With respect
to any person who whose capacity is extremely insufficient to
appreciate right or wrong due to any mental disability, the family
court may order
the commencement of curatorship upon a request by the person in question, his/her
spouse, any relative within the
fourth degree of kinship, the guardian, the supervisor
of the guardian, the assistant, the supervisor of the assistant, or a public
prosecutor;
provided however, that, this shall not apply to any person in respect of whom a
cause set forth in Article 7 exists.
Article 12 Person under Curatorship and his/her Curator
A person who has become subject to the order of commencement of curatorship
shall be the person under curatorship, and a curator shall be appointed for him/her.
Article 13 Acts Requiring Consent of Curator
1 A person under curatorship must obtain the consent of his/her curator if he/she
intends to perform any of the following
acts; provided, however, that, this shall not
apply to the acts provided for in the proviso of Article 9:
*1
i receive or use any principal ;
ii borrow any money or guarantee any obligation;
iii perform any act with the purpose of obtaining or relinquishing any right
regarding real estate or other valuable
property;
iv take any procedural action;
v make a gift, make any settlement, or agree to arbitrate referring
to the
agreement to arbitrate as provided in paragraph 1, Article 2 of the Arbitration
Act Act No. 138 of 2003
;
vi accept or renounce any inheritance, or partition any estate;
*1 The term "principal" in this section refers
to any principal fund which can bear fruit, such
as interest.
-3-
refuse an offer of a gift, renounce any bequest*2, accept the offer of gift with
vii
burden, or accept any bequest with
burden;
viii effect any new construction, renovation, expansion, or major repairs; or
ix make any lease agreement
with a term which exceeds the period set forth in
Article 602.
2 At the request of the person provided in the main clause
of Article 11, or any
curator or any supervisor of the curator, the family court may make an order that
the person under curatorship
must obtain the consent of his/her curator even in
cases he/she intends to perform any act other than those set forth in each item
of
the preceding paragraph; provided, however, that this shall not apply to the acts
provided for in the proviso to Article 9,
3 With respect to any act which requires the consent of the curator, if the curator
does not give consent in cases where the
interest of the person under curatorship
is unlikely to be prejudiced, the family court may, at the request of the person
under
curatorship, give permission in lieu of the consent of the curator.
4 An act which requires the consent of the curator may be
rescinded if it was
performed without such consent or any permission in lieu thereof.
Article 14 Rescission of Order of Commencement
of Curatorship
1 When the cause provided in the main clause of Article 11 ceases to exist, the
family court must rescind the
order of the commencement of curatorship at the
request of the person in question, his/her spouse, any relative within the fourth
degree of kinship, the guardian of a minor,
the supervisor of the guardian of a
minor, the curator, the supervisor of the curator, or a public prosecutor.
2 At the request
of the person prescribed in the preceding paragraph, the family
court may rescind, in whole or in part, the order under paragraph
2 of the
preceding Article.
Article 15 Order of Commencement of Assistance
1 With respect to any person who has insufficient
capacity to appreciate right or
wrong due to any mental disability, the family court may order the commencement
of assistance
upon a request by the person in question, his/her spouse, any relative
within the fourth degree of kinship, the guardian, the supervisor
of the guardian,
the curator, the supervisor of the curator, or a public prosecutor; provided,
however, that, this shall not
apply to any person who has the cause set forth in
Article 7 or the main clause of Article 11.
2 The order of commencement
of assistance at the request of any person other
*2 "bequest" may be appropriate since it refers to personal property.
-4-
than the person in question shall require the consent of the person in question.
3 The order of commencement of assistance must be made concurrent with the
order under paragraph 1 of Article 17 or the order
under paragraph 1 of Article
876-9.
Article 16 Person under Assistance and Assistant
A person who has become subject to the
order of commencement of assistance shall
be a person under assistance, and an assistant shall be appointed for him/her.
Article
17 Order Requiring Person to Obtain Consent of Assistant
1 At the request of the person provided in the main clause of paragraph
1 of
Article 15, or any assistant or supervisor of the assistant, the family court may
make the order that the person under assistance
must obtain the consent of
his/her assistant if he/she intends to perform any particular juristic act; provided,
however, that
the act for which such consent must be obtained pursuant to such
order shall be limited to the acts provided in paragraph 1 of
Article 13.
2 The order set forth in the preceding paragraph at the request of any person
other than the person in question
shall require the consent of the person in
question.
3 With respect to any act which requires the consent of the assistant,
if the
assistant does not give consent in cases where the interest of the person under
assistance is unlikely to be prejudiced,
the family court may, at the request of the
person under assistance, give permission which is in lieu of the consent of the
assistant.
4 An act which requires the consent of the assistant may be rescinded if it was
performed without such consent or any permission
in lieu thereof.
Article 18 Rescission of Order of Commencement of Assistance
1 When the cause provided in the main clause of
paragraph 1 of Article 15 ceases
to exist, the family court must rescind the order of commencement of assistance at
the request
of the person in question, his/her spouse, any relative within the
fourth degree of kinship, the guardian of a minor, the supervisor
of the guardian of
a minor, the assistant, the supervisor of the assistant, or a public prosecutor.
2 At the request of the
person prescribed in the preceding paragraph, the family
court may rescind, in whole or in part, the order under paragraph 1 of
the
preceding Article.
3 In cases the order under paragraph 1 of the preceding Article and the order
under paragraph 1 of
Article 876-9 are to be rescinded in their entirety, the family
court must rescind the order of commencement of assistance.
-5-
Article 19 Relationship between Orders
1 In cases any order for commencement of
guardianship is to be made, and the
person in question is a person under curatorship or the person under assistance,
the family court must rescind the order of commencement of
curatorship or
commencement of assistance pertaining to such person in question.
2 The provisions of the preceding paragraph
shall apply mutatis mutandis in
cases where the person in question, upon order of commencement of curatorship, is
an adult ward
or a person under assistance, or in cases where the person in
question is, at the time of the order for commencement of assistance,
an adult
ward or a person under curatorship.
Article 20 Right of Demand by Person who is Counterparty to Person with Limited
Capacity
1 The person who is the counterparty to a person with limited capacity
hereinafter referring to any minor, an adult
ward, a person under curatorship,
and a person under assistance who has become subject to the order under
paragraph 1 of Article
17 may, after such person with limited capacity has
become a person with capacity hereinafter referring to a person
free of any
limitation on capacity to act , issue to such person a notice which demands, by
establishing a certain period which
is one month or more, that he/she should give
a definite answer on whether or not such person will ratify such act which may be
rescinded within such period. In such case, if such person fails to send any
definite answer within such period, he/she
is deemed to have ratified such act.
2 The second sentence of the preceding paragraph shall likewise apply in cases
where,
while such person with limited capacity has not yet become a person with
capacity, the person who is the counterparty to the person
with limited capacity
issues to the statutory agent, curator, or assistant of such person a notice
prescribed in the preceding
paragraph with respect to any act which is under the
authority of any such officer, and the statutory agent, curator or assistant
fails to
issue any definite answer within the period referred to in such paragraph.
3 With respect to any act which requires
any special formalities, if no notice to the
effect that the perfection of such formalities has been completed is issued within
the period set forth in the preceding two paragraphs, it is deemed that such act
has been rescinded.
4 The person who is
the counterparty to a person with limited capacity may issue
a notice to any person under curatorship, or to any person under assistance
who
has been made subject to the order under paragraph 1 of Article 17 which
demands that he/she should obtain the ratification
of his/her curator or assistant,
as the case may be, within the period set forth in paragraph 1 above. In such
case,
if the person under curatorship or person under assistance fails to issue,
-6-
within
the applicable period, a notice to the effect that such ratification has been
obtained, it is deemed that such act has been rescinded.
Article 21 Fraudulent Means Committed by Person with Limited Capacity
If a person with limited capacity manipulates any fraudulent
means to induce
others to believe that he/she is a person with capacity, his/her act may not be
rescinded.
Section III
Domicile
Article 22 Domicile
The principal place wherein a person lives shall be his/her domicile.
Article 23 Residence
1
If the domicile of a person is unknown, his/her residence is deemed to be his/her
domicile.
2 If a person does not have
the domicile in Japan, his/her residence is deemed to
be his/her domicile, whether he/she is a Japanese or a foreign national;
provided,
however, that, this shall not apply where the law of domicile controls in
accordance with the applicable provision
of the Act Concerning the Application of
Laws Act No. 10 of 1898 or other laws which provide the governing law.
Article
24 Temporary Domicile
If any temporary domicile is selected for any act, such temporary domicile is
deemed to be the domicile as far as such act is concerned.
Section
IV Management of Absentee Property and Adjudication of
Disappearance
Article 25 Administration of Absentee
Property
1 In cases any person who has left his/her domicile or residence hereinafter
referred to as "absentee"
did not appoint an administrator of his/her property
hereinafter in this Section referred to simply as "administrator" , the
family
court may, at the request of any interested person or a public prosecutor, issue an
order for necessary actions for the
administration of such property. The same
shall apply in cases the authority of the administrator ceases to exist during
the
absence of the absentee.
2 If, after the issuance of the order pursuant to the provision of the preceding
paragraph,
the absentee appoints an administrator, the family court must rescind
the order at the request of his/her administrator, any interested
person, or a public
-7-
prosecutor.
Article 26 Replacement of Administrator
In
cases an absentee appoints an administrator, and if it is not clear whether such
absentee is dead or alive, the family court may
replace such administrator with
another at the request of any interested person or a public prosecutor.
Article 27 Duties of Administrator
1 An administrator who is appointed by the family court pursuant to the provision
of the preceding two Articles must prepare
a list of the property he/she is to
administer. In such case, the expenses incurred shall be disbursed from the
property of
the absentee.
2 In cases it is not clear whether an absentee is dead or alive, if so requested by
any interested person or a
public prosecutor, the family court may also order the
administrator appointed by the absentee to prepare the list set forth in
the
preceding paragraph.
3 In addition to provisions of the preceding two paragraphs, the family court may
issue an order
to the administrator to effect any action which the court may find to
be necessary for the preservation of the property of the
absentee.
Article 28 Authority of Administrator
If an administrator needs to perform any act beyond the authority set forth in
Article 103, he/she may perform such act by obtaining the permission of the family
court. The same shall likewise apply if the administrator
needs to perform any act
beyond the authority stipulated by the absentee in cases it is not clear whether the
absentee is dead or
alive.
Article 29 Provision of Security by and Remuneration for Administrator
1 The family court may require an administrator
to provide reasonable security
with respect to the administration and return of the property.
2 The family court may grant reasonable
remuneration to the administrator from
the property of the absentee with due regard to the relationship between the
administrator
and absentee and other circumstances.
Article 30 Adjudication of Disappearance
1 If it is not clear whether the absentee is
dead or alive for 7 years, the family
court may make the adjudication of disappearance at the request of any interested
person.
2 The procedure of the preceding paragraph shall likewise apply with respect to
any person who was engaged in any war zone,
was aboard any vessel which later
-8-
sank, or was otherwise exposed to any danger
which could be the cause of death, if
it is not clear whether such person is dead or alive for one year after the end of
the
war, after the sinking of the vessel, or after the termination of such other
danger, as the case may be.
Article 31 Effect of
Adjudication of Disappearance
Any person who has become the subject of the adjudication of disappearance
pursuant to the provision
of paragraph 1 of the preceding Article is deemed to have
died upon elapse of the period set forth in such paragraph, and a person who is the
subject of the adjudication of disappearance
pursuant to the provision of paragraph 2
of the same Article is deemed to have died upon the termination of such danger.
Article
32 Rescission of Adjudication of Disappearance
1 If there is any proof that an absentee is alive, or that he/she died at a time
differing from that provided in the preceding Article, the family court must, at the
request of the absentee himself/herself
or any interested person, rescind the
adjudication of disappearance. In such case, the rescission shall not affect the
validity
of any act which was performed without knowledge after the adjudication
of disappearance but before the rescission thereof.
2
Any person who acquired any property by the adjudication of disappearance
shall lose its/his/her right upon rescission thereof;
provided, however, that such
person shall have the obligation to return such property only to the extent he/she
is actually enriched.
Section V Presumption of Simultaneous Death
Article 32-2
In cases more than one person dies, if it is not clear whether
one of the deceased
survived the other s , it is presumed that they all died at the same time.
Chapter III Juridical Persons
Section I Establishment of Juridical Persons
Article 33 Establishment of Juridical Person
No juridical person can
be formed unless it is formed pursuant to the applicable
provisions of this Code or other laws.
Article 34 Establishment of Public
Interest Corporation
Any association or foundation relating to any academic activities, art, charity,
-9-
worship, religion, or other public interest which is not for profit may be established
as a juridical person
with the permission of the competent government agency.
Article 35 Restrictions on Use of Name
Any person who is neither an incorporated
association nor an incorporated
foundation shall not use in its name the words "incorporated association" or
"incorporated foundation",
or other words which is likely to be mistaken for those
words.
Article 36 Foreign Juridical Person
1 With the exception
of any state, any administrative division of any state, and
any commercial corporation, no establishment of a foreign juridical
person shall be
approved; provided, however, that, this shall not apply to any foreign juridical
person which is approved pursuant
to the provisions of a law or treaty.
2 A foreign juridical person which is approved pursuant to the provision of the
preceding
paragraph shall possess the same private rights as may be possessed by
the juridical person of the same kind which can be formed
in Japan; provided,
however, that, this shall not apply to any right which may not be enjoyed by a
foreign national, or a right
for which special provision is made in a law or treaty.
Article 37 Articles of Incorporation
Any person who intends to form an
incorporated association must prepare the
Articles of incorporation and specify the following matters:
i Purpose s ;
ii Name;
iii Location of the office;
iv Provisions regarding the asset;
v Provisions regarding
the appointment and dismissal of directors; and
vi Provisions regarding the acquisition and loss of membership status.
Article 38 Change of Articles of Incorporation
1 The articles of incorporation may be changed only if the consent of
three-quarters
or more of all members is obtained; provided, however, that, this
shall not apply to the cases where it is otherwise provided in
the articles of
incorporation.
2 No change of the articles of incorporation shall take effect unless and until it is
approved
by the competent government agency.
Article 39 Act of Endowment
Any person who intends to form an incorporated foundation must
provide for the
- 10 -
matters set forth in items 1 to 5 inclusive of Article 37 in the act
of endowment
which is intended to form such foundation.
Article 40 Determination by Court of Name
When the person who intends
to form an incorporated foundation dies without
determining the name, location of the office, and the procedure of the appointment
or
dismissal of directors of such foundation, the court must, at the request of the
interested person or a public prosecutor, determine
such matters.
Article 41 Mutatis Mutandis Application of Provisions regarding Gifts and
Bequests
1 The provisions
relating to gifts shall apply mutatis mutandis to acts of
endowment in the form of inter vivos dispositions to the extent this
is not
inconsistent with the nature thereof.
2 If an act of endowment is done by a will, the provisions relating to bequests
shall apply mutatis mutandis to the extent it is not inconsistent with the nature
thereof.
Article 42 Time of Vesting of Endowed
Property
1 If an act of endowment was in the form of an inter vivos disposition, the
endowed property shall vest in the
juridical person at the time permission is given
for the establishment of such juridical person.
2 If an act of endowment
was done by a will, the endowed property shall vest in
the applicable juridical person upon effectuation of such will.
Article
43 Capacity of Juridical Person
A juridical person shall have rights and assume duties to the extent of the purpose
provided in
the applicable articles of incorporation or act of endowment subject to
the applicable provisions of the laws and regulations.
Article 44 Capacity of Juridical Person to Commit Tortious Acts
1 A juridical person shall be liable for damage caused to
others by its directors or
other agents during the course of the performance of their duties.
2 If any damages are inflicted
to others due to any ultra vires act beyond the
scope of the purpose s of the applicable juridical person, the member s
and
director s who consented to the resolution pertaining to such act and the director
s or other agent s
who executed such resolution shall be jointly and severally
liable for such damages.
Article 45 Registration of Establishment
of Juridical Person
- 11 -
1 A juridical person must complete its registration
within two weeks from the day
of its establishment at the location of its principal office, and within three weeks
at any location
of its other office.
2 The establishment of a juridical person may not be asserted against a third
party unless it is registered
at the location of its principal office.
3 If, after the establishment of a juridical person, any new office is established,
the registration at the location of such office must be filed within 3 weeks.
Article 46 Matters to be Registered upon
Registration of Formation and
Registration of Change
1 The following matters shall be registered upon registration of establishment
of
any juridical person:
i Purpose s ;
ii Name;
iii Location of the office;
iv Date of
the permission of the establishment;
v Term of existence, if such term is stipulated;
vi Total amount of assets;
vii Method of contribution, if such method is defined; and
viii Name and domicile of each director.
2 If
there is any change in any matter listed in the respective items of the
preceding paragraph, the registration of the change must
be filed within two
weeks at the location of its principal office, and within three weeks at any location
of its other office.
In each of the above cases, the change may not be asserted
against a third party before its registration.
3 If there
is any ruling for the provisional disposition which suspends the
execution of the duties of any director, or appoints any person who executes such
duties in place of a director,
or if there is any ruling to change or rescind such
provisional disposition, the registration of such fact must be made at the
location
of the principal office or other office. The provision of the second sentence of the
preceding paragraph shall apply
mutatis mutandis to such case.
Article 47 Period for Registration
The period for the registration of any matter to be registered
pursuant to the
provision of paragraph 1 of Article 45 and the preceding Article which requires the
permission of the government
agency shall be calculated commencing from the day of
the arrival of such permit.
Article 48 Registration of Relocation of Office
1 In cases a juridical person relocates its principal office, it must, within 2 weeks,
- 12 -
register the fact of such relocation at the old location, and the matters listed in the
respective items
of paragraph 1 of Article 46 at the new location.
2 In cases a juridical person relocates any office other than its principal
office, it
must register the fact of such relocation at the old location within 3 weeks, and
must register the matters listed
in the respective items of paragraph 1 of Article
46 at the new location within 4 weeks.
3 In cases any office is relocated
to any location within the jurisdictional district of
the same Registry, it shall be sufficient to register the fact of such relocation.
Article 49 Registration of Foreign Juridical Person
1 The provisions of paragraph 3 of Article 45, Article 46 and the preceding
Article
shall apply mutatis mutandis to the cases where any foreign juridical person
establishes an office in Japan; provided,
however, that, the period of registration
for any matter which takes place in any foreign state shall be calculated
commencing
from the day of the arrival of the notice thereof.
2 When a foreign juridical person has established an office in Japan for the
first
time, a third party may deny the establishment of such juridical person until the
registration has been completed at the
location of such office.
Article 50 Domicile of Juridical Person
The domicile of a juridical person shall be at the location
of its principal office.
Article 51 Inventory of Property and Directory of Members
1 A juridical person must prepare its inventory
of property at the time of its
establishment, and at any time between January and March of each year, and
must keep it at its
principal office at all times; provided, however, that, in cases a
juridical person establishes any specific fiscal year, it must
prepare the inventory
of property at the time of its establishment and at the end of its respective fiscal
year.
2 An incorporated
association must keep its directory of members and make
necessary changes whenever there is any change in the members.
Section II Management of Juridical Persons
Article 52 Director
1 A juridical person must have one or more director s .
2 In cases there is more than one director, unless otherwise provided in the
articles of incorporation or act of endowment, the
business of the juridical person
shall be determined by the majority of all directors.
- 13 -
Article 53 Representative of Juridical Person
The director s shall represent the juridical person with respect
to any and all
business of the juridical person; provided, however, that the director s may not act
in contravention of the applicable
provisions of the articles of incorporation or the
purpose s of the act of endowment, and, in cases of an incorporated association,
must comply with the applicable resolution of the general meeting.
Article 54 Limitation on Director's Authority of Representation
No limitation on a director's authority may be asserted against a third party
without knowledge.
Article 55 Delegation of Director's Authority
A director may delegate
his/her authority on a specific act to other person s only
in cases such delegation is not prohibited by the applicable articles
of incorporation,
act of endowment, or resolution of the general meeting of the members.
Article 56 Provisional Director
In cases
there is any vacancy in the office of directors, if any damage is likely to
occur due to the delay in the business, the court must,
at the request of any
interested person or a public prosecutor, appoint a provisional director.
Article 57 Conflict of Interest
A director shall have no authority of representation as to any matter involving a
conflict of interest between the juridical person
and such director. In such case, the
court must, at the request of any interested person or a public prosecutor, appoint a
special
agent.
Article 58 Auditor-Secretary
A juridical person may appoint one or more auditor-secretary ies under the
authority
of the articles of incorporation, act of endowment or the resolution of the
general meeting of the members.
Article 59 Duties of
Auditor-Secretary
The duties of an auditor-secretary shall be:
i to audit the status of the property of the juridical
person;
ii to audit the status of the execution of the business by the director s ;
iii to submit a report to the
general meeting of the members or to the
competent government agency when he/she finds any violation of the applicable
laws and regulations, articles of incorporation or act of endowment, or any
significant impropriety with respect to the
status of the property or the
- 14 -
execution of the business; and
iv
to convoke a general meeting of the members when it is necessary to submit
the report set forth in the preceding item.
Article 60 Ordinary General Meeting
The director s of an incorporated association must convoke an ordinary general
meeting
of the members at least once a year.
Article 61 Extraordinary General Meeting
1 The director s of an incorporated association
may convoke an extraordinary
general meeting of the members whenever directors find it necessary.
2 The director s
must convoke an extraordinary general meeting if one-fifth or
more of all members so request by specifying the matter s
which is/are the
purpose s of the meeting; provided, however, that a ratio other than one-fifth
may be stipulated
by the articles of incorporation.
Article 62 Convocation of General Meeting
The notice of the convocation of the general meeting
must be given at least five
days prior to the scheduled day of the meeting in the manner provided in the articles
of incorporation
by specifying the matter s which is/are the purpose s of the
meeting.
Article 63 Execution of Business of the Incorporated
Association
The business of the incorporated association shall be carried out pursuant to the
applicable resolution of the general
meeting, except those delegated to the director
s or other officer s by the articles of incorporation.
Article 64 Matters
for Resolution of the General Meeting
The general meeting may adopt a resolution only with respect to any matter which
is notified
in advance pursuant to the provision of Article 62; provided, however,
that, this shall not apply where the articles of incorporation
provide otherwise.
Article 65 Voting Right of Members
1 The vote of each member shall be of equal value.
2 A member who
is not present in the general meeting may vote in writing or by
proxy.
3 The provisions of the preceding two paragraphs
shall not apply if the articles of
incorporation provide otherwise.
Article 66 No Right to Vote
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In cases any resolution is to be made with respect to the relationship between the
incorporated association and any particular
member, such member shall have no
vote.
Article 67 Supervision of Business of Juridical Person
1 The business of a juridical
person shall be subject to the supervision by the
competent government agency.
2 The competent government agency may issue
to the juridical person any order
which shall be necessary for the purpose its supervision.
3 The competent government agency
may, by exercising its authority, inspect the
status of the business and property of a juridical person at any time.
Section III Dissolution of Juridical Person
Article 68 Causes of Dissolution of Juridical Person
1 A juridical person
shall be dissolved because of:
i the occurrence of any cause of dissolution provided in the articles of
incorporation
or act of endowment, as the case may be;
ii the successful consummation of the business which is the purpose of the
juridical person, or the impossibility of such successful consummation;
iii the ruling to commence bankruptcy procedures;
or
iv the rescission of the permission of the establishment.
2 In addition to the causes listed in the respective
items of the preceding
paragraph, an incorporated association shall be dissolved because of:
i the applicable resolution
of the general meeting; or
ii the attrition of all members.
Article 69 Resolution for Dissolution of Juridical Person
An incorporated association may not adopt a resolution for dissolution without the
affirmative votes of three-fourths or more of
all the members; provided, however,
that, this shall not apply to the cases where it is provided otherwise in the articles of
incorporation.
Article 70 Commencement of Bankruptcy Procedures with respect to Juridical
Person
1 In cases a juridical person is
unable to pay its debts in full out of its property,
the court shall, at the filing of any director or any obligee or by exercising
its
authority, provide the ruling to commence bankruptcy procedures.
2 In the case prescribed in the preceding paragraph,
the director s must
immediately file a petition for the commencement of bankruptcy procedure.
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Article 71 Rescission of Permission of Establishment of Juridical Person
In cases a juridical
person carries on any business which is outside the scope of its
purpose s , or violates any conditions on which it obtained the
permission of the
establishment or any supervisory order issued by the competent government agency,
or otherwise commits any act
which is to prejudice the public interest, if the purpose
of supervision cannot be achieved by any other means, the competent government
agency may rescind its permission. The same shall apply if the juridical person,
without any justifiable reason, does not conduct
any business for three consecutive
years or more.
Article 72 Vesting of Residual Assets
1 The assets of a dissolved juridical
person shall vest in the person who is
designated in the articles of incorporation or act of endowment.
2 If the articles of
incorporation or act of endowment does not designate any
person with whom the right should be vested, or does not provide the manner
to
designate such person, the director s may, with the permission of the competent
government agency, dispose of the assets
of the relevant juridical person for any
purpose which is similar to that of such juridical person; provided, however, that,
in cases of an incorporated association, the resolution of the general meeting must
be obtained.
3 Any asset which cannot be
disposed of pursuant to the provisions of the
preceding two paragraphs shall vest in the national treasury.
Article 73 Juridical
Person under Liquidation
A dissolved juridical person is deemed to still continue to exist to the extent of the
purpose of the liquidation until the
conclusion of such liquidation.
Article 74 Liquidator
Except in cases of dissolution by the operation of the ruling to commence
bankruptcy procedures, when a juridical person is dissolved, its director s shall
become the liquidator s ; provided, however,
that, this shall not apply to the cases
where an applicable provision of any articles of incorporation or act of endowment
otherwise
provides, or any person other than the director s has been appointed as
the liquidator s in the general meeting.
Article
75 Appointment of Liquidator by Court
If no liquidator is identified pursuant to the provisions of the preceding article, or
if
any damage is likely to occur due to the vacancy in the office of a liquidator, the
court may appoint a liquidator at the request
of any interested person or a public
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prosecutor, or by exercising its authority.
Article 76 Dismissal of Liquidator
If there is any important reason for doing so, the court may dismiss a liquidator at
the request
of any interested person or a public prosecutor, or by exercising its
authority.
Article 77 Registration and Filing of Liquidators'
Particulars and Dissolution
1 Except in cases of the ruling to commence bankruptcy procedures and the
rescission of the
permission of the establishment, the liquidator must register
his/her name and domicile as well as the cause and the date of the
dissolution
within two weeks from the dissolution at the location of the principal office, and
within three weeks from the dissolution
at the location of its other office, and file
such matter with the competent government agency.
2 A liquidator who has assumed
his/her office during the course of the liquidation
must register his/her name and domicile within two weeks from the assumption
of
his/her office at the location of the principal office, and within three weeks from
the assumption of his/her office at the
location of its other office, and file such
matter with the competent government agency.
3 The provisions of the preceding
paragraph shall apply mutatis mutandis to the
liquidator who has assumed his/her office in the case of dissolution due to the
rescission of the permission of the establishment.
Article 78 Duties and Authority of Liquidator
1 A liquidator shall have
the duties to:
i conclude the current business;
ii collect debts and perform obligations; and
iii deliver
the residual assets.
2 The liquidator may perform any and all acts in order to perform its duties listed
in the respective
items of the preceding paragraph.
Article 79 Request for Filing of Claims
1 Within two months from the day when he/she takes
office, the liquidator s
must require the relevant obligees, by releasing a public notice on at least three
occasions, to file
their claims within a stated period, in which case such notice
period may not be less than two months.
2 The public notice
set forth in the preceding paragraph must note that any claim
of an obligee shall be excluded from the liquidation procedure unless
he/she
submits his/her claim within the stated period; provided, however, that that the
liquidator may not exclude any known
obligee.
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3 The liquidator must require the filing of the claim to each
of the known obligees.
4 The public notice pursuant to the provision of paragraph 1 above shall be given
by publishing it in
the Official Gazette.
Article 80 Filing of Claim after Lapse of the Stated Period
Any obligee who submits its claim after the
lapse of the period set forth in
paragraph 1 of the preceding Article shall be entitled to make its claim only to the
assets which,
after all debts of the juridical person have been fully paid, is not yet
delivered to the person with vested rights.
Article 81 Commencement of Bankruptcy Procedure
with respect to Juridical
Person under Liquidation
1 When it has become apparent during the liquidation procedure that the assets
of
the relevant juridical person is not sufficient to fully pay its debts, the liquidator
must immediately file a petition for
the commencement of bankruptcy procedures
and make a public notice of such fact.
2 In cases any juridical person under the liquidation
procedure has become subject
to the ruling of the commencement of bankruptcy procedures, if the administration
of the relevant
procedure has been transferred to the trustee in bankruptcy, it is
deemed that the liquidator has completed his/her duties.
3
In the case prescribed in the preceding paragraph, if the juridical person under
the liquidation procedure has already paid any
money to the obligees, or has
delivered any asset to the person with vested rights, the trustee in bankruptcy
may retrieve such
money or asset.
4 The public notice pursuant to the provision of paragraph 1 above shall be made
by publishing it in the Official
Gazette.
Article 82 Supervision by the Court
1 The dissolution and liquidation of a juridical person shall be subject to the
supervision of the court.
2 The court may, by exercising its authority, conduct any inspection which may be
necessary for
the supervision set forth in the preceding paragraph.
Article 83 Filing of Conclusion of Liquidation Procedure
When any liquidation
procedure has been concluded, the liquidator must file such
fact with the competent government agency.
Section IV Supplementary
Rules
Article 84 Delegation of Authorities of Competent Government agency
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The authorities of the competent government agency provided in this Chapter may
be delegated, in whole or in part, to any government
agency of the national
government pursuant to the applicable cabinet order.
Article 84-2 Processing of the Business of the
Competent Government agency by
Executive Agency of Prefectural Government
1 The execution of the authorities of the applicable
competent government agency
provided in this Chapter may be administered, in whole or in part, by the governor
or other executive
agency of the relevant prefectural government hereinafter
referred to as "prefectural executive agency" pursuant
to the applicable cabinet
order.
2 In the case set forth in the preceding paragraph, the applicable competent
government
agency may instruct the applicable prefectural executive agency with
respect to the issuance of any order for supervisory purpose
or the rescission of the
permission of the establishment to the relevant juridical person pursuant to the
applicable cabinet
order.
3 In the case referred to in paragraph 1, the competent government agency may
establish the standard to be complied
with by the applicable prefectural executive
agency in its administration.
4 When the applicable competent government agency
establishes the standard set
forth in the preceding paragraph, they must make a public announcement thereof.
Section
V Penal Provisions
Article 84-3
1 A director, auditor-secretary, or liquidator of a juridical person shall be made
subject
to a civil fine of not more than 500,000 Yen if he/she:
i fails to effect any registration provided in this Chapter;
ii violates the provision of Article 51, or makes any false entry in the
inventory of property or directory of
members;
iii has obstructed any inspection by the competent government agency, any
government agency of the national
government to which the authorities of the
competent government agency are delegated, or any prefectural executive agency
which administers the execution of the authorities of the competent government
agency, or the court pursuant to the provision of paragraph
3 of Article 67 or
paragraph 2 of Article 82;
iv violates any order for supervisory purpose issued by the competent
government agency, any government agency of the national government to
which the authorities of the competent government
agency are delegated, or any
prefectural executive agency which administers the execution of the authorities
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of the competent government agency pursuant to the provision of paragraph 2 of
Article 67;
v has made any misrepresentation to, or has concealed any fact from, any
government agency, any
prefectural executive agency which administers the
execution of the authorities of the competent government agency, or the
general
meeting;
vi fails to file a petition for the commencement of bankruptcy procedures
pursuant to the
provision of paragraph 2 of Article 70 or paragraph 1 of Article
81; or
vii has failed to make the public notice required
under paragraph 1 of Article
79 or paragraph 1 of Article 81, or has made any improper public notice.
2 Any person who
violates the provision of Article 35 shall be subject to a civil fine
of not more than Yen 100,000.
Chapter IV Things
Article 85 Definition
The term "Things" as used in this Code shall mean tangible thing.
Article 86 Real Estate and Movables
1 Land and any fixtures thereto are regarded as real estate.
2 Any Thing which is not real estate is regarded as movable.
3 A bearer certificate of claims is deemed to be movable.
Article 87 Principal and Appurtenance
1 If the owner of
a Thing attaches to it any other Thing he/she owns to make
other Thing available for the permanent use of the former Thing, such
other Thing
which was attached is regarded as appurtenance.
2 Appurtenance shall be subject to the disposition of the principal.
Article 88 Natural Fruits and Legal Fruits
1 Products which are obtained from the intended use of a Thing are regarded as
Natural Fruits.
2 Money or other Thing to be obtained in exchange for the use of any Thing are
regarded as Legal Fruits.
Article 89 Vesting of Fruits
1 Natural Fruits shall vest in the person who has the right to obtain them when
they are
severed from the origin.
2 Legal Fruits shall be acquired in proportion to the number of days depending on
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the duration of the right to obtain them.
Chapter V Juristic Acts
Section I General Provisions
Article 90 Public Policy
A juristic act with any purpose which is against public policy
is void.
Article 91 Manifestation of Intention Inconsistent with Default Rules
If any party to a juristic act manifests any intention
which is inconsistent with a
provision in any laws and regulations not related to public policy, such intention
shall prevail.
Article 92 Custom Inconsistent with Default Rules
In cases there is any custom which is inconsistent with a provision in any law
or
regulation not related to public policy, if it is found that any party to a juristic act
has the intention to abide by such custom,
such custom shall prevail.
Section II Manifestation of Intention
Article 93 Concealment of True Intention
The
validity of the manifestation of intention shall not be impaired even if the
person who makes the manifestation knows that it does
not reflect his/her true
intention; provided, however, that, in cases the other party knew, or could have
known, the true intention
of the person who makes the manifestation, such
manifestation of intention shall be void.
Article 94 Fictitious Manifestation of
Intention
1 Any fictitious manifestation of intention made in collusion with another party
ies shall be void.
2 The nullity of the manifestation of intention
pursuant to the provision of the
preceding paragraph may not be asserted against a third party without knowledge.
Article 95
Mistake
Manifestation of intention has no effect when there is a mistake in any element of
the juristic act in question; provided,
however, that the person who made the
manifestation of intention may not assert such nullity by himself/herself if he/she
was grossly
negligent.
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Article 96 Fraud or Duress
1 Manifestation of intention which
is induced by any fraud or duress may be
rescinded.
2 In cases any third party commits any fraud inducing any person to make
a
manifestation of intention to the other party, such manifestation of intention may
be rescinded only if the other party knew
such fact.
3 The rescission of the manifestation of intention induced by the fraud pursuant
to the provision of the preceding
two paragraphs may not be asserted against a
third party without knowledge.
Article 97 Manifestation of Intention to Person at
a Distance
1 Manifestation of intention to a person at a distance shall become effective at the
time of the arrival of the notice
to the other party.
2 The validity of manifestation of intention to a person at a distance shall not be
impaired even if the
person who made the manifestation dies or loses his/her
capacity to act after the dispatch of the notice.
Article 98 Manifestation
of Intention by Public Notice
1 Manifestation of intention may be made by means of public notice if the person
who makes the
manifestation is unable to identify the other party or is unable to
identify the whereabouts of the other party.
2 The public
notice set forth in the preceding paragraph shall be effected by
posting the notice at the posting area of the relevant court and
publishing the fact
of such posting in the Official Gazette at least once in accordance with the
applicable provisions of the
Code of Civil Procedure Act No. 109 of 1996
regarding the service of the public notice; provided, however, that the court
may, if
it finds it suitable, order to post the notice at a posting area of the city office, ward
office, or town/village office
or any facility equivalent to the above in lieu of the
publication in the Official Gazette.
3 Manifestation of intention by
means of public notice is deemed to have arrived
at the other party upon elapse of two weeks after the day when the notice was
last
published in the Official Gazette, or the day on which any posting in lieu of such
publication started, whichever comes
first; provided, however, that the service of
such notice shall not take effect if the person who makes the manifestation is
negligent in not identifying the other party or not identifying the whereabouts of
the other party.
4 The procedure regarding
the public notice shall be subject to the jurisdiction of
the summary court which has jurisdiction over the area where the person
who
makes the manifestation of intention has his/her domicile in cases he/she is unable
to identify the other party, or over
the area of the last known domicile of the other
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party in cases the whereabouts
of the other party cannot be identified.
5 The court must require the person who makes the manifestation of intention to
prepay
the expenses regarding the public notice.
Article 98-2 Capacity to Receive the Manifestation of Intention
In cases the other
party to the manifestation of intention is a minor or an adult
ward at the time when the other party receives such manifestation
of intention, the
person who made the manifestation of intention may not assert his/her
manifestation of intention
against such other party; provided, however, that, this
shall not apply after the statutory agent of such other party has acquired the
knowledge of such manifestation of intention.
Section III Agency
Article 99 Requirements and Effect of Act of Agent
1 A manifestation of intention made by an agent
representing that the same is
made on behalf of the principal within the scope of the agent's authority binds the
principal.
2 The provision of the preceding paragraph shall apply mutatis mutandis to any
manifestation of intention made by a third party
to an agent.
Article 100 Manifestation of Intention made with no Indication that it is made on
behalf of the Principal
Any manifestation
of intention made by an agent with no indication that it is
made on behalf of the principal is deemed to have been made for the agent's
own
behalf; provided, however, that, in cases the other party knew, or could have known,
that the agent is acting on behalf of the
principal, the provision of the preceding
paragraph shall apply mutatis mutandis.
Article 101 Defect in Act of Agent
1 In cases
the validity of a manifestation of intention should be affected by any
absence of intention, any fraud, any duress, or any negligence
in knowing or not
knowing any particular circumstance, whether or not such fact existed shall be
determined with reference to
the agent.
2 In cases an agent is entrusted to perform any specific juristic act, if the agent
performs such act in accordance
with the instructions of the principal, the
principal may not assert that the agent did not know a particular circumstance
which
the principal knew. The same shall apply to any circumstance which the
principal did not know due to his/her negligence.
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Article 102 Agent's Capacity to Act
An agent need not to be a person with the
capacity to act.
Article 103 Authority of Agent with no Specified Authority
An agent who has no specified authority shall have
the authority to do the
following acts only:
i acts of preservation; and
ii acts which have the purpose of using
or improving any Thing or right which
is the subject of the agency to the extent such act does not change the nature of
such property or right.
Article 104 Appointment of Sub-agent by Agent
A privately appointed agent may not appoint its
sub-agent unless the
authorization of the principal is obtained or there is an unavoidable reason to do so.
Article 105 Responsibility
of Agent Who Appointed Sub-agent
1 If an agent appoints a sub-agent pursuant to the provisions of the preceding
Article,
it shall be responsible vis-à-vis the principal for the appointment and
supervision of such sub-agent.
2 A privately appointed
agent shall not assume the responsibility set forth in the
preceding paragraph if it appointed the sub-agent in accordance with
the
nomination by the principal; provided, however, that, this shall not apply to the
cases where the agent knows that the sub-agent
is unsuitable or untrustworthy,
and fails to notify the principal thereof or to dismiss the sub-agent.
Article 106 Appointment
of Sub-agent by Statutory Agent
A statutory agent may appoint a sub-agent on its own responsibility. In such
case, if
there is any unavoidable reason, it shall assume only the responsibility set
forth in paragraph 1 of the preceding Article.
Article
107 Authority of Sub-agent
1 A sub-agent shall represent the principal with respect to any act within the
scope of its authority.
2 A sub-agent shall have the same rights and obligations as those of the agent
vis-à-vis the principal and third parties.
Article 108 Self-Contract and Representation of both Parties
An agent may not be the agent of the other party or the agent of
both parties in
the same juristic act; provided, however, that, this shall not apply where the act
constitutes the performance of
any obligation, or the act is authorized by the
- 25 -
principal in advance.
Article 109 Apparent
Authority due to Manifestation of Grant of Authority of
Agency
A person who manifested to a third party that he/she granted
certain authority of
agency to other person s shall be liable for any act performed by such other person
s with
third parties within the scope of such authority, unless such third parties
knew, or were negligent in not knowing, that such other
person s were not granted
the authority of agency.
Article 110 Apparent Authority of Act Exceeding Authority
The
provision of the main clause of the preceding Article shall apply mutatis
mutandis to the case where an agent performs any act exceeding
its authority and a
third party has reasonable grounds for believing that the agent has the authority.
Article 111 Ground of Termination
of Authority of Agency
1 The authority of agency shall be terminated upon:
i death of the principal; and
ii death of the agent, or ruling of the commencement of bankruptcy procedures
or order for commencement of guardianship
against the agent.
2 The authority of a privately appointed agent by mandate shall be terminated,
other than on the
grounds listed in the respective items of the preceding
paragraph, upon the termination of the contract appointing him/her.
Article 112 Apparent Authority After Termination of Authority of Agency
Termination of the authority of agency may not be
asserted vis-à-vis a third party
without knowledge; provided, however, that, this shall not apply to the cases where
such third party
was negligent in not knowing such fact.
Article 113 Unauthorized Agency
1 Any contract concluded by a person who holds
himself/herself out as an agent of
others without authority of agency shall be void vis-à-vis the principal unless
ratified
by the principal.
2 Any ratification or refusal to ratify may not be asserted vis-à-vis the
counterparty unless it is
made to such counterparty; provided, however, that, this
shall not apply to the cases where the counterparty has come to know
such fact.
Article 114 Right of Notice of Counterparty of Unauthorized Agency
In the case referred to in the preceding Article,
the counterparty may require the
principal, by fixing a reasonable period of time, to make a definite answer on
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whether or not he/she will ratify within such period of time. In such case, if the
principal
fails to make any definite answer within such period, he/she is deemed to
have refused to ratify.
Article 115 Right to Rescind
of Counterparty of Unauthorized Agency
A contract concluded by a person without any authority of agency may be
rescinded by the
counterparty until the principal ratifies it; provided, however, that,
this shall not apply to the cases where the counterparty knew
at the time of the
conclusion of the contract that the agent had no authority of agency.
Article 116 Ratification of Act of Unauthorized
Agency
Ratification shall be effective retroactively as of the time of the conclusion of the
contract unless other intention is
manifested; provided, however, that no right of a
third party may be prejudiced.
Article 117 Liability of Unauthorized Agent
1
A person who concluded a contract holding himself/herself out as an agent of
another person shall be liable to the counterparty
for the performance of the
contract or damages as chosen by such counterparty if he/she is unable to prove
his/her authority
of agency nor obtain the ratification of the principal.
2 The provisions of the preceding paragraph shall not apply if the counterparty
knew, or was negligent in not knowing, that the person who concluded a contract
holding himself/herself out as an agent of another
person had no authority of
agency, or if the person who concluded a contract holding himself/herself out as an
agent of another person had no capacity to
act.
Article 118 Unauthorized Agency in Unilateral Juristic Act
With respect to a unilateral juristic act, the provisions of
Articles 113 to the
preceding Article inclusive shall apply mutatis mutandis only in cases the
counterparty, at the time of such
act, agrees that the person who holds
himself/herself as an agent will act without authority of agency, or did not contest
the authority
of agency of such person. The above provisions shall also apply
mutatis mutandis in cases any person performs a unilateral
juristic act vis-à-vis any
person without authority of agency with the consent of such person.
Section IV Nullity and Rescission
of Acts
Article 119 Ratification of Acts which are Void
An act which is void does not become effective by ratification; provided,
however,
that, if a party ratifies any act knowing that such act is void, it is deemed that
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he/she acted de novo.
Article 120 Persons with the Right to Rescind Act
1 An act which may be rescinded on the
grounds of the limited capacity to act of
the person who performed such act may be rescinded only by the person whose
capacity
to act is limited, or its agent, successor, or a person who has the authority
to give consent.
2 An act which may be rescinded
on the grounds of fraud or duress may be
rescinded only by the person who made such defective manifestation of intention,
or
his/her agent or successor.
Article 121 Effect of Rescission
An act which is rescinded is deemed void ab initio; provided, however,
that a
person with limited capacity to act shall have the obligation to reimburse to the
extent that he/she is actually enriched
as a result of such act.
Article 122 Ratification of Rescindable Acts
A rescindable act may not be rescinded from the time when
the person set forth in
Article 120 ratifies it; provided, however, that ratification may not prejudice the
rights of third parties.
Article 123 Method of Rescission and Ratification
In cases the counterparty to a rescindable act is identified, the rescission
or
ratification of such act shall be made by the manifestation of intention to such
counterparty.
Article 124 Requirements for
Ratification
1 A ratification shall not be effective unless it is made after the circumstance s
that made the act rescindable
ceases to exist.
2 If an adult ward recognizes his/her act after he/she has become a person with
capacity to act, he/she may
ratify such act only after such recognition.
3 The provisions of the preceding two paragraphs shall not apply in cases the
ratification
is made by the statutory agent, or the curator or assistant of the
person with limited capacity to act.
Article 125 Statutory
Ratification
If, after the time when it has become possible to ratify an act pursuant to the
provisions of the preceding Article,
any of the following events occurs with respect to
an act which is otherwise rescindable, it is deemed that ratification has been
made,
unless any objection is reserved:
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i performance of such act,
in whole or in part;
ii demand for the performance of such act;
iii novation of such act;
iv provision
of security;
v assignment, in whole or in part, of any right acquired as a result of such
rescindable act; or
vi compulsory execution of such act.
Article 126 Limitation on Period of Right to Rescind
The right to rescind an act
shall be extinguished by the operation of the
prescription if it is not exercised within five years from the time when it becomes
possible to ratify the act. The same shall apply when twenty years has elapsed from
the time of the act.
Section V
Conditions and Time Limit
Article 127 Effect of Fulfillment of Conditions
1 A juristic act which is subject to a condition precedent shall become effective
upon fulfillment
of the condition.
2 A juristic act which is subject to a condition subsequent shall become ineffective
upon fulfillment
of the condition.
3 If the party manifests an intention to extend the effect of fulfillment of the
condition retroactively
to any time prior to the time of the fulfillment, such
intention shall prevail.
Article 128 Prohibition of Infringement
of Interest of Counterparty Pending
Fulfillment of Conditions
Neither party to a juristic act which is subject to any condition
may infringe the
interests of the counterparty which should arise from such juristic act upon
fulfillment of the condition while
it is uncertain whether or not such condition has
been fulfilled.
Article 129 Disposition of Rights Pending Fulfillment of Conditions
While it is uncertain whether or not a condition has been fulfilled, the rights and
obligations of the party concerned may be disposed
of, inherited or preserved, or any
security may be provided therefor, in accordance with the usual provisions of the
law.
Article
130 Prevention of Fulfillment of Conditions
In cases any party who will suffer any detriment as a result of the fulfillment of
a
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condition intentionally prevents the fulfillment of such condition, the
counterparty
may deem that such condition has been fulfilled.
Article 131 Fulfilled Conditions
1 In cases a certain condition
is already fulfilled at the time of the performance of
the applicable juristic act, if such condition is a condition precedent,
such juristic
act shall be unconditional, and if such condition is a condition subsequent, such
juristic act shall be void.
2 In cases it is already established conclusively at the time of the performance of
the applicable juristic act that a certain
condition will not be fulfilled, if such
condition is a condition precedent, such juristic act shall be void, and if such
condition
is a condition subsequent, such juristic act shall be unconditional.
3 In the cases referred to in the provisions of the preceding
two paragraphs, the
provisions of Article 128 and Article 129 shall apply mutatis mutandis while the
relevant parties are not
aware that the relevant condition has been, or has not
been, fulfilled, as the case may be.
Article 132 Unlawful Conditions
Juristic act which is subject to an unlawful condition shall be void. The same
shall apply to any act which is subject to
the condition that an unlawful act not be
performed.
Article 133 Impossible Conditions
1 Juristic act subject to a condition
precedent which is impossible shall be void.
2 Juristic act subject to a condition subsequent which is impossible shall be
unconditional.
Article 134 Potestative Conditions
A juristic act which is subject to a condition precedent shall be void if the condition
is
dependent upon the will of the obligor.
Article 135 Effect of Arrival of Assigned Time
1 If time of commencement of validity
is assigned to a juristic act, the
performance of such juristic act may not be demanded before the arrival of such
time.
2
If time of expiration of validity is assigned to a juristic act, the validity of such
juristic act shall expire upon the arrival
of such time.
Article 136 Benefit of Time and Its Waiver
1 It is presumed that a time specified is provided for the benefit
of the obligor.
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2 The benefit of time may be waived; provided, however,
that such waiver may not
prejudice the interest of the counterparty.
Article 137 Forfeiture of Benefit of Time
The obligor
may not assert the benefit of time if:
i the obligor has become subject to the ruling of the commencement of
bankruptcy procedures;
ii the obligor has destroyed, damaged, or diminished the security; or
iii the obligor fails to provide security when it has the obligation to do so.
Chapter VI Calculation of Period
Article 138 Common Rules on Calculation of Period
The method of calculation of
a period shall be subject to the provision of this
Chapter unless otherwise provided in the laws and regulations or any judicial
order,
or unless the relevant juristic act otherwise specifies.
Article 139 Commencement of Period
When a period is defined by
the hour, the period commences immediately at the
specified time.
Article 140
When a period is defined by the day, week, month,
or year, the first day of the
period shall not be included for the purpose of the calculation; provided, however,
that, this shall
not apply to the cases where the period commences at twelve
midnight.
Article 141 Expiration of Period
In the case referred to
in the preceding Article, the period shall expire at the end
of the last day of such period.
Article 142
If the last day of a
period falls on a Sunday, a holiday as provided in the Act on
National Holidays Act No. 178 of 1948 , or any other holiday,
only when it is
customary not to do business on such day, the period shall expire on the immediately
following day.
Article 143
Calculation of Period with Reference to Calendar
1 When a period is defined by the week, month, or year, the period shall
be
calculated with reference to the calendar week, month, or year.
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2
When a period does not commence at the beginning of the week, month, or year,
such period shall expire in the last week, month,
or year on the day immediately
preceding the day which corresponds to the commencement day; provided,
however, that if the period
is defined by the month or year and the last month
does not contain the corresponding day, the period shall expire on the last
day of
such month.
Chapter VII Prescription
Section I General Provisions
Article 144 Effect of Prescription
The prescription shall take effect retroactively as of the commencement day.
Article 145 Invocation of Prescription
The court
may not make a judgment relying on the prescription unless the party
invokes it.
Article 146 Waiver of Benefits of Prescription
The benefits of the prescription may not be waived in advance.
Article 147 Ground of Interruption of Prescription
The prescription
shall be nullified upon issuance of:
i any claim;
ii any attachment, provisional seizure, or provisional disposition;
or
iii any acknowledgment.
Article 148 Persons Affected by Interruption of Prescription
The nullification of prescription
pursuant to the provision of the preceding Article
shall be effective solely among the parties with respect to whom the ground of
such
interruption arose, and their respective successors.
Article 149 Judicial Claims
A judicial claim shall not have the effect
of interruption of the prescription in
cases where the action is dismissed or withdrawn.
Article 150 Demand for Payment
A demand
for payment shall not have the effect of interruption of the prescription
in cases where it loses its effect because the obligee
fails to file for the declaration of
provisional execution within the period set forth in Article 392 of the Code of Civil
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Procedure.
Article 151 Filing for Settlement and Conciliation
The filing for
settlement or the filing for conciliation under the Civil Conciliation
Act Act No. 222 of 1951 or Family Affairs Adjudication
Act Act No. 152 of 1947
shall not have the effect of interruption of the prescription in cases where, when the
counterparty fails
to appear in the court or when the settlement or conciliation is not
satisfactorily concluded, the action is not brought within one
month.
Article 152 Participation in Bankruptcy Procedures
Participation in a bankruptcy procedures, participation in a rehabilitation
procedures, or participation in a reorganization
procedures shall not have the effect
of interruption of the prescription when the obligee withdraws its filing, or its filing
has
been dismissed.
Article 153 Demand
A demand shall not have the effect of interruption of the prescription unless a
judicial claim,
filing for demand of payment, filing for settlement, filing for
conciliation under the Civil Conciliation Act or Family Affairs Adjudication
Act,
participation in bankruptcy procedures, participation in a rehabilitation procedures,
participation in a reorganization procedures,
attachment, provisional seizure, or
provisional disposition is commenced within six months.
Article 154 Attachment, Provisional
Seizure, and Provisional Disposition
An attachment, provisional seizure, and provisional disposition shall not have the
effect
of interruption of the prescription if it is avoided at the request of any rights
holder, or for failure to comply with any provisions
of the law.
Article 155
When an attachment, provisional seizure, or provisional disposition is not effected
vis-à-vis a person
who acquires any benefit of the prescription, it shall not have the
effect of interruption of the prescription unless a notice is
given to such person.
Article 156 Acknowledgment
An acknowledgment which has the effect of interruption of the prescription shall
not require the capacity to act or authority with respect to the disposition of the
rights of the counterparty.
Article 157 Running
of Prescription following Interruption
1 A prescription which is interrupted shall resume running at the time the
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applicable grounds for suspension cease to exist.
2 Any prescription which is interrupted
by a judicial claim shall resume running
at the time of the final and binding judgment.
Article 158 Minor or Adult Ward and Suspension
of Prescription
1 If a minor or an adult ward, as the case may be, has no statutory agent during
the period of six months preceding
the expiration of period of the prescription, the
prescription shall not be completed with respect to such minor or adult ward
until
six months elapse from the time when such minor or adult ward becomes a person
with a capacity to act, or a statutory agent
is appointed.
2 In cases where a minor or an adult ward has any right vis-à-vis his/her father,
mother, or guardian who manages
his/her property, the prescription shall not be
completed with respect to such right until six months elapse from the time when
such minor or adult ward becomes a person with a capacity to act, or a succeeding
statutory agent is appointed.
Article 159
Suspension of Prescription of Rights Between Husband and Wife
With respect to any right which either husband or wife has vis-à-vis
the other
spouse, the prescription shall not be completed until six months elapse from the time
of the dissolution of the relevant
marriage.
Article 160 Suspension of Prescription Regarding Inherited Property
With respect to any inherited property, the prescription
shall not be completed
until six months elapse from the time when the applicable heir is identified, the
administrator is appointed,
or the ruling of the commencement of bankruptcy
procedures is made.
Article 161 Suspension of Prescription due to Natural Disaster
If the prescription may not be interrupted upon expiration of period of the
prescription due to any natural disaster or other unavoidable
contingency, the
prescription shall not be completed until two weeks elapse from the time when such
impediment has ceased to exist.
Section II Acquisitive Prescription
Article 162 Acquisitive Prescription of Ownership
1 A person who possesses any
property of another for 20 years peacefully and
openly with an intention to own shall acquire the ownership thereof.
2 A person who possesses any property of another for 10 years peacefully and
openly with an intention to own shall acquire the
ownership thereof if he/she was
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without knowledge and was not negligent when
the possession started.
Article 163 Acquisitive Prescription of Property Rights other than Ownership
A person who exercises any
property right other than the ownership peacefully
and openly with an intention to do so on his/her own behalf shall acquire such
right
after the elapse of 20 years or 10 years consistent with the distinction provided in
the preceding Article.
Article 164
Interruption of Acquisitive Prescription due to Discontinuation of
Possession
The prescription pursuant to the provision of Article
162 shall be interrupted when
the possessor discontinues the possession voluntarily, or he/she is deprived of his/her
possession
by others.
Article 165
The provision of the preceding Article shall apply mutatis mutandis to the case
under Article 163.
Section III Extinctive Prescription
Article 166 Running of Extinctive Prescription
1 The extinctive prescription commences
to run when it has become possible to
exercise the right.
2 The provision of the preceding paragraph shall not preclude the
commencement
of acquisitive prescription for the benefit of a third party who possesses any
subject matter which is a right subject
to the time of commencement or a right
subject to a condition precedent, at the time of commencing such possession;
provided,
however, that the holder of the right may demand the possessor to give
his/her acknowledgment at any time to interrupt the prescription.
Article 167 Extinctive Prescription of Claim
1 A claim shall be extinguished if not exercised for ten years.
2 Any property
right other than the claim or ownership shall be extinguished if
not exercised for twenty years.
Article 168 Extinctive Prescription
of Periodic Payments
1 A claim for periodic payments shall be extinguished if not exercised for twenty
years after the first
due date. The same shall apply if not exercised for ten years
after the last due date.
2 The obligee of periodic payments may
require its obligor at any time to issue a
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written acknowledgment in order to
acquire the evidence of the interruption of the
prescription.
Article 169 Short-term Extinctive Prescription of Claim for Periodic
Performance
Any claim for the delivery of money or other Thing for periodic performance of one
year or shorter shall be extinguished
if not exercised for five years.
Article 170 Short-term Extinctive Prescription of Three Years
The claims listed below shall
be extinguished if not exercised for three years;
provided, however, that the prescription of the claims listed in item
ii shall
commence upon completion of the work referred to in the same item:
i any claim regarding a diagnosis, assistance
in baby delivery, or the
preparation of medicine by a doctor, delivery assistant, or pharmacist; or
ii any claim,
regarding the construction work, of a person engaged in design,
execution, or supervision of the work.
Article 171
An
attorney or a legal professional corporation, or a notary public shall be relieved
of their responsibility for any document received
in connection with its/his/her
service upon the elapse of three years after the termination of the relevant case with
respect to
an attorney or a legal professional corporation, and after the execution of
his/her duties with respect to a notary public.
Article
172 Short-term Extinctive Prescription of Two Years
1 Any claim regarding the duties of an attorney, a legal professional
corporation,
or a notary public shall be extinguished if not exercised for two years after the
close of the case which was the
cause of such claim.
2 Notwithstanding the provisions of the preceding paragraph, if five years have
elapsed after the close of any particular matter included
in the case referred to in
such paragraph, the claim regarding such matter shall be extinguished even in the
middle of the period
set forth in such paragraph.
Article 173
The following claims shall be extinguished if not exercised for two years:
i
a claim pertaining to the price of any product or goods sold by a
manufacturer, wholesale merchant, or retail merchant;
ii a claim regarding the work of any person whose business is to manufacture
any Thing or to perform the work
in his/her own workplace for the benefit of
others upon placement of an order using his/her own skill; and
iii
a claim possessed by any person who provides education in the arts and
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sciences, or technical skills, with respect to the price of the education, food and
clothing and accommodation for
students.
Article 174 Short-term Extinctive Prescription of One Year
The following claims shall be extinguished if not exercised
for one year:
i a claim pertaining to the salary of an employee which is fixed by one month
or any shorter period;
ii a claim pertaining to the remuneration of any person whose business is to
provide his/her own labor or entertainment,
or the price of any Thing supplied
by such person;
iii a claim pertaining to freight for transportation;
iv
a claim pertaining to room charges, food and beverage charges, admission
fees, entrance fees, the price of goods consumed
or monies to be reimbursed to
any hotel, establishment providing food and beverages*3, seating hire facility, or
place of amusement; and
v a claim pertaining to the rent for movables.
Article 174-2 Extinctive Prescription of Right
Established in Judgment of Court
1 The period of prescription of any right established in a unappealable judgment
shall
be ten years even if any period of prescription shorter than ten years is
provided. The same shall apply to any right which is
established in a settlement
in a court proceeding or conciliation, or any other action which has the effect
equivalent to that
of the unappealable judgment.
2 The provision of the preceding paragraph shall not apply to any claim which is
not yet due
and payable yet at the time when the judgment becomes unappealable.
Part III Claims
Chapter I General Provisions
Section I Subject of Claim
Article 399 Subject of Claim
Even a matter that cannot be given an estimated monetary
value may be the
subject of a claim.
Article 400 Duty of Care in cases of Delivery of Specified Things
*3 The term "eating establishment"
is commonly used in the U.S.A.
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If the subject of a claim is the delivery
of any specified things, the obligor must
take custody of such property with due care of a prudent manager until the
completion of
such delivery.
Article 401 Fungible Claim
1 In cases the subject of the claim is specified only with reference to a type and
if
the quality of such property cannot be identified due to the nature of the juristic
act or intention of the relevant party
ies , the obligor must deliver the property of
intermediate quality.
2 In the case set forth in the preceding paragraph, if
the obligor has completed the
acts necessary to deliver the Thing, or has identified the Thing he/she is to deliver
with the
consent of the obligee, such Thing shall thenceforth constitute the subject
of the claim.
Article 402 Monetary Claim
1 If
the subject of the claim is money, the obligor may, at his/her choice, make the
payment in currency of any kind; provided, however,
that, this shall not apply to
the cases where the delivery of specific kind of currency is identified as the subject
of the claim.
2 If the specific kind of currency
that is the subject of the claim is no longer in
mandatory circulation at the time of the payment, the obligor must make payment
in other currency.
3 The provisions of the preceding two paragraphs shall apply mutatis mutandis to
the cases where the delivery
of the currency of a foreign state is the subject of the
claim.
Article 403
When the amount of the claim is specified in the
currency of a foreign state, the
obligor may make the payment in the legal currency of Japan using the foreign
exchange rate current
in the place of the performance.
Article 404 Statutory Interest Rate
Unless the parties otherwise manifest their intention with
respect to a claim
which bears interest, the rate of such interest shall be 5% per annum.
Article 405 Incorporation of Interest
into Principal
In cases the payment of interest corresponding to one year or more is delayed, and
if the obligor does not pay such
interest notwithstanding the demand by the obligee,
the obligee may incorporate such interest into the principal.
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Article 406 Attribution of Right of Choice in cases of Alternative Obligation
If the subject
of the claim is to be identified by way of choice among more than one
performance, the right to make the choice shall vest in the
obligor.
Article 407 Exercise of Right of Choice
1 The right of choice under the preceding Article shall be exercised by manifesting
the intention to the counterparty.
2 The manifestation of intention set forth in the preceding paragraph may not be
revoked
without the acknowledgment of the counterparty.
Article 408 Transfer of Right of Choice
In cases a claim is due and, notwithstanding
a demand by the counterparty
stipulating a reasonable period of time, the party who holds the right of choice does
not exercise the
right within such period of time, the right of choice shall be
transferred to the counterparty.
Article 409 Right of Choice of
Third Party
1 In cases a third party holds the right of choice, such choice shall be made by
manifesting its intention to either
the obligee or the obligor.
2 In the case prescribed in the preceding paragraph, if the third party is unable to
make the choice
or has no intention to make the choice, the right of choice shall be
transferred to the obligor.
Article 410 Identification of
Alternative Obligation due to Impossibility
1 If any performance which is included in the subject of a claim is impossible from
the beginning, or later becomes impossible, the claim shall exist to the extent of
the performance which still remains.
2
If any performance has become impossible due to the negligence of any party
who does not have any right of choice, the provision
of the preceding paragraph
shall not apply.
Article 411 Effect of Choice
The choice shall become effective retroactively as
of the time of the accrual of the
claim; provided, however that this shall not prejudice the rights of a third party.
Section II Effect of Claims
Subsection I Responsibility for Default
Article 412 Time for Performance and Delay in
Performance
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1 If any specified due date is assigned to the performance of
an obligation, the
obligor shall be responsible for the delay on and after the time of the arrival of
such time limit.
2 If
any unspecified due date is assigned to the performance of a claim, the obligor
shall be responsible for the delay on and after
the time when he/she becomes
aware of the arrival of such time limit.
3 If no time limit is assigned to the performance of an
obligation, the obligor shall
be responsible for the delay on and after the time he/she receives the request for
performance.
Article 413 Obligee's Delay in Acceptance
If the obligee refuses, or is unable, to accept the tender of the performance of any
obligation, the relevant obligee shall be responsible
for the delay on and after the
time of the tender of the performance.
Article 414 Enforcement of Performance
1 If an obligor
voluntarily fails to perform any obligation, the obligee may request
the enforcement of specific performance from the court; provided,
however, that,
this shall not apply where the nature of the obligation does not permit such
enforcement.; provided, however,
that, this shall not apply to the cases where the
nature of the obligation does not permit such enforcement.
2 In cases the
nature of the obligation does not permit the enforcement of the
specific performance, if it is an obligation for an act, the obligee
may request the
court to cause a third party to perform such act at the expense of the obligor;
provided, however, that with
respect to any obligation for any juristic act, the
manifestation of intention of the obligor may be achieved by a judgment.
3
With respect to any obligation for an inaction, a request may be made to the
court at the expense of the obligor seeking the
removal of the outcome of the
action performed by the obligor, or an appropriate ruling against any future action.
4 The provisions
of the preceding three paragraphs shall not preclude demanding
damages.
Article 415 Damages due to Default
If an obligor fails
to perform consistent with the purpose of its obligation, the
obligee shall be entitled to demand damages arising from such failure.
The same
shall apply in cases it has become impossible to perform due to reasons attributable
to the obligor.
Article 416
Scope of Damages
1 The purpose of the demand for the damages for failure to perform an obligation
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shall be to demand the compensation for damages which would ordinarily arise
from such failure.
2 The
obligee may also demand the compensation for damages which arise from
any special circumstances if the party did foresee, or should
have foreseen, such
circumstances.
Article 417 Method of Compensation for Damages
Unless other intention is manifested, the
amount of the damages shall be
determined with reference to monetary value.
Article 418 Comparative Negligence
If the obligee
is negligent regarding the failure of performance of the obligation,
the court shall determine the liability for damages and the
amount thereof by taking
such elements into consideration.
Article 419 Special Provisions for Monetary Debt
1 The amount of
the damages for failure to perform any obligation for the delivery
of any money shall be determined with reference to the statutory
interest rate;
provided, however, that, in cases the agreed interest rate exceeds the statutory
interest rate, the agreed interest
rate shall prevail.
2 The obligee shall not be required to prove his/her damages with respect to the
damages set forth in the
preceding paragraph.
3 The obligor may not raise the defense of force majeure with respect to the
damages referred to in paragraph
1.
Article 420 Liquidated Damages
1 The parties may agree on the amount of the liquidated damages with respect to
the failure
to perform the obligation. In such case, the court may not increase or
decrease the amount thereof.
2 The liquidated damages
shall not preclude the demand for performance or the
exercise of the cancellation right.
3 Any penalty is presumed to constitute
liquidated damages.
Article 421
The provisions of the preceding Article shall apply mutatis mutandis to the cases
where the parties
agree in advance to allocate anything other than money to the
compensation for damages.
Article 422 Subrogation for Damages
If
an obligee receives the full value of any Thing or right which is the subject of
- 41
-
the claim as the compensation for damages, the obligor shall be subrogated to the
creditor in relation to such property or right by operation of law.
Subsection II Obligee's Subrogation Right and Obligee's Right to Demand
Rescission of Fraudulent Act
Article 423 Obligee's Subrogation Right
1 An obligee may exercise the right vested in the obligor in order to preserve
his/her
own claim; provided, however, that, this shall not apply to rights which are
exclusive and personal to the obligor.
2 Until
exercised by way of subrogation admitted in a judicial proceeding, the
obligee may not exercise the right set forth in the preceding
paragraph unless and
until his/her claim has become due; provided, however, that, this shall not apply to
any act of preservation.
Article 424 Obligee's Right to Demand the Rescission of Fraudulent Act
1 An obligee may demand the court to rescind any juristic
act which an obligor
commits knowing that it will prejudice the obligee; provided, however, that, this
shall not apply to the
cases where any person who benefits from such act, or any
person who succeeds to such benefit, did not know, at the time of such
act or
succession, the fact that the obligee is to be prejudiced.
2 The provision of the preceding paragraph shall not apply
to a juristic act with a
subject other than property rights.
Article 425 Effect of Rescission of Fraudulent Act
The rescission
pursuant to the provision of the preceding Article shall have an
effect for the benefit of all obligees.
Article 426 Limitation
Period of Obligee's Right to Rescind Fraudulent Act
The right to rescind pursuant to the provision of Article 424 shall be extinguished
by operation of prescription if not exercised within two years from the time that the
obligee acquired knowledge of the cause of
the rescission. The same shall apply if
twenty years pass from the time of the act.
Section III Claims and Obligations
of Multiple-Parties
Subsection I General Provisions
Article 427 Divisible Claims and Divisible Obligations
In cases
there are more than one obligee or obligor, unless any other intention is
- 42 -
manifested,
each obligee or each obligor shall have the equally proportionate rights
or obligations.
Subsection II Indivisible
Claims and Indivisible Obligations
Article 428 Indivisible Claim
In cases the subject of a claim is indivisible by its nature
or due to the
manifestation of intention of the parties involved, if there are more than one
obligees, each obligee may demand the
performance for the benefit of all obligees,
and the relevant obligor may tender its performance to each obligee for the benefit
of
all obligees.
Article 429 Effect of Circumstances on Particular Circumstance which Arises with
respect to One Indivisible Obligee
1 Even in cases where there is a novation or release between one indivisible
obligee and the obligor, other indivisible obligee
s may request the obligor to
tender the entire performance. In such cases, the benefit which would have been
allocated to
the above-mentioned one indivisible obligee if he/she did not lose
his/her right must be reimbursed to the relevant obligor.
2
Other than as prescribed in the preceding paragraph, any act of one indivisible
obligee, or any circumstance which arises with
respect to one indivisible obligee
shall not have any effect on the other indivisible obligee s .
Article 430 Indivisible Obligation
The provisions of the preceding Article, and the provisions of the following
Subsection III Joint and Several Obligation
excluding the provisions of Articles
434 to 440 inclusive shall apply mutatis mutandis to the cases where more than
one person
bears any indivisible obligation.
Article 431 Changing into Divisible Claims or Divisible Obligations
If any indivisible claim
becomes a divisible claim, each obligee may request the
performance only to the extent of such portion of the claim on which he/she has
his/her own right, and if any indivisible
obligation becomes a divisible obligation,
each obligor shall bear his/her responsibility only to the extent of the portion of the
obligation which he/she bears.
Subsection III Joint and Several Obligations
Article 432 Request for Performance
If more than one person bears a joint and several obligation, the obligee may
- 43 -
request one of the joint and several obligors, or all of such joint and several obligors,
simultaneously or successively, to perform
the obligation, in whole or in part.
Article 433 Invalidity of Juristic Act with respect to One Joint and Several Obligor
Even
if there are any grounds for the voidance or rescission of a juristic act with
respect to only one joint and several obligor, the
validity of the obligation s of other
joint and several obligor s shall not be impaired.
Article 434 Request for Performance
to One Joint and Several Obligor
A request for performance made to one joint and several obligor shall also be
effective with respect
to other joint and several obligor s .
Article 435 Novation with One Joint and Several Obligor
If there is any novation between
one joint and several obligor and the obligee, the
claim shall be extinguished for the benefit of all joint and several obligors.
Article 436 Setoffs by One Joint and Several Obligor
1 In cases one joint and several obligor has a claim vis-à-vis the obligee,
if such
joint and several obligor invokes a setoff, the claim shall be extinguished for the
benefit of all joint and several
obligors.
2 So long as the joint and several obligor who has the claim set forth in the
preceding paragraph does not invoke
the set-off, other joint and several obligor s
may invoke the set-off solely to the extent of the portion of the obligation
which is
borne by such joint and several obligor.
Article 437 Releases of One Joint and Several Obligor
A release of an obligation
effected for one joint and several obligor shall also be
effective for the benefit of other joint and several obligor s solely
to the extent of
the portion of the obligation which is borne by such joint and several obligor.
Article 438 Merger with One Joint
and Several Obligor
If there is any merger between one joint and several obligor and the relevant
obligee, it is deemed that such
joint and several obligor has performed his/her
obligation.
Article 439 Completion of Prescription with respect to One Joint
and Several
Obligor
If the prescription is completed with respect to one joint and several obligor, the
other joint and several
obligors also shall be relieved of liability to the extent of the
portion of the obligation which is borne by such joint and several
obligor.
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Article 440 Principle of Relative Effect
Except as set forth in Articles
434 to the preceding Article inclusive, any
circumstance which arises with respect to one joint and several obligor shall be void
vis-à-vis other joint and several obligor s .
Article 441 Commencement of Bankruptcy Procedures for Joint and Several
Obligors
When some or all of the joint and several obligors have become subject to the
ruling of the commencement of bankruptcy procedures,
the obligee may participate
in the distribution of each bankruptcy estate with respect to the entire amount of
his/her claim.
Article
442 Right to Obtain Reimbursement among Joint and Several Obligors
1 If one joint and several obligor performs the obligation,
or has otherwise
acquired any common discharge in exchange for his/her own property, such joint
and several obligor shall have
right to obtain reimbursement from other joint and
several obligors to the extent of the respective portion of the obligations
which is
borne by each of other joint and several obligors.
2 The reimbursement pursuant to the provision of the preceding paragraph shall
include the compensation
of the statutory interest which accrue on or after the day
of the performance of the obligation or other discharge, any unavoidable
expenses,
and other damages.
Article 443 Limitation on Reimbursement to Joint and Several Obligor who Failed
to give Notice
1 When one joint and several obligor performs his/her obligation or has otherwise
acquired any common discharge in exchange for
his/her own property without
giving to the other joint and several obligor s a notice that there was the request
for the performance
from the relevant obligee, if any of the other joint and several
obligor s has any defense vis-à-vis the obligee, such joint
and several obligor may
raise such defense vis-à-vis the joint and several obligor who acquired the
discharge to the extent of
the portion of the obligation which is borne by
himself/herself. In such case, if any defense vis-à-vis the joint and several obligor
who acquired the discharge is raised on the grounds of set-off, the negligent joint
and several obligor may request the relevant
obligee to perform the obligation
which should have been extinguished due to set-off.
2 When one joint and several obligor performs
the obligation or has otherwise
acquired any common discharge in exchange for his/her own property and has
failed to give notice
of such fact to other joint and several obligor s , and as a
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result of such
failure, any other joint and several obligor acquires discharge by
performing the obligation or otherwise in exchange for an act
performed for
consideration without knowledge, the joint and several obligor who was so
discharged shall be entitled to regard
his/her act to perform or other act to acquire
the discharge as effective.
Article 444 Allocation of Portion of Person who does
not have Sufficient Financial
Resources for Reimbursement
If there is any person among the joint and several obligors who does
not have the
sufficient financial resources to make the reimbursement, the portion that cannot be
reimbursed shall be borne among
the person s who demand s the reimbursement
and other person s who has/have the financial resources, in proportion
to the
respective portion which is borne by each of such persons; provided, however, that
the person who requests the reimbursement
may not demand other joint and several
obligor s to bear the burden if he/she is negligent.
Article 445 Release from Joint and
Several Obligations and Allocation of Portion of
Burden of Person who does not have Sufficient Financial Resources to Pay
In cases
any one joint and several obligor is released from the joint and several
obligation, if there is any person among other joint and
several obligors who does not
have the sufficient financial resources to pay the obligation, the obligee shall bear
such portion
of the obligation which may not be performed by such person without
sufficient financial resources as should have been borne by the
person who was
released from the joint and several obligation.
Subsection IV Guarantee Obligation
Division
I General Provisions
Article 446 Responsibility of Guarantor
1 A guarantor shall have the responsibility to perform the obligation
of the
principal obligor when the latter fails to perform such obligation.
2 No contract of guarantee shall be effective unless
it is made in writing.
3 If a contract of guarantee is concluded by electromagnetic record meaning a
record produced by
electronic means, magnetic means, or any other means
unrecognizable by natural sensory functions that is for computer data-processing
use which records the contents thereof, the contract of guarantee is deemed to be
made in writing, and the provision of the
preceding paragraph shall apply.
Article 447 Scope of Guarantee Obligation
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1 The guarantee obligation
shall include interest, penalty and compensation for
damages in connection with the principal obligation, and all other charges
incidental to such obligation.
2 A guarantor may stipulate the amount of penalty or compensation for damages
with regard
to his/her own guarantee obligation only.
Article 448 Cases where Burden of Guarantor is More Onerous than That of the
Principal
Obligor
If the burden of a guarantor is more onerous than that of the principal obligor as
to either its subject or its terms,
it shall be reduced to the extent of the principal
obligation.
Article 449 Guarantee of Rescindable Obligation
If a guarantor,
who has guaranteed an obligation which may be rescinded by
reason of the principal obligor's limited capacity to act, was aware,
at the time of
entering into a contract guarantee, of the cause for its voidability, such guarantor
shall be presumed to have assumed
an independent obligation of the same subject in
the event of nonperformance by the principal obligor or rescission of the obligation.
Article 450 Requirements for Guarantor
1 Where an obligor has the obligation to furnish a guarantor, such guarantor
must:
i be a person with capacity to act; and
ii have sufficient financial resources to pay the obligation.
2
If the guarantor ceases to meet the requirement set forth in item ii of the
preceding paragraph, the obligee may demand
that some other person meeting the
requirements listed in any item of such paragraph be substituted for such
guarantor.
3
The provisions of the preceding two paragraphs shall not apply in the case the
obligee has designated the guarantor.
Article
451 Providing Other Security
If the obligor is unable to furnish a guarantor meeting the requirements listed in
any item of paragraph
1 of the preceding Article, he/she may furnish other security
in lieu thereof.
Article 452 Defense of Demand
If an obligee has
demanded performance of an obligation from the guarantor, the
guarantor may demand the obligee to demand performance of the principal
obligor
first; provided, however, that, this shall not apply to the cases where the principal
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obligor has received a ruling for the commencement of bankruptcy procedures or
where his/her whereabouts are
unknown.
Article 453 Defense of Reference
Even after the obligee has made a demand to the principal obligor in accordance
with
the provision of the preceding Article, the obligee must first execute on the
property of the principal obligor if the guarantor
has proved that the principal
obligor has the financial resource to pay his/her obligation and that the execution
would be easily
performed.
Article 454 Special Provisions for Joint and Several Guarantee
If a guarantor has assumed an obligation jointly and
severally with the principal
obligor, the guarantor shall not have the rights set forth in the preceding two
Articles.
Article
455 Effect of Defense of Demand and Defense of Reference
Where demand has been made or proof has been given by a guarantor pursuant
to
the provisions of Article 452 or Article 453, if the obligee fails to demand or to levy
execution and is subsequently unable to
obtain full performance from the principal
obligor, the guarantor shall be relieved of liability to the extent that the obligee
would
have received performance if the obligee had immediately demanded or levied
execution.
Article 456 Cases where More Than One Guarantor
Exists
Where there is more than one guarantor for a single obligation, the provision of
Article 427 shall apply even if they have
assumed their obligations by separate acts.
Article 457 Effect of Circumstance which Arises with respect to the Principal
Obligor
1 The nullification of prescription by operation of a demand vis-à-vis the principal
obligor or on any other grounds shall also be effective vis-à-vis the guarantor.
2 A guarantor may raise a defense vis-à-vis the obligee by setting off any claim
which the principal obligor may have vis-à-vis
the obligee.
Article 458 Effect of Circumstance which Arises with respect to Jointly and
Severally Liable Guarantor
The provisions
of Articles 434 to 440 inclusive shall apply mutatis mutandis to the
cases where the principal obligor assumes an obligation jointly
and severally with
the guarantor.
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Article 459 Right to Obtain Reimbursement
of Guarantor Entrusted by the
Principal Obligor
1 In cases where a guarantor has given a guarantee as entrusted by the principal
obligor, if he/she has, without negligence, had a judgment ordering him/her to
perform the obligation to the obligee, or has
performed the obligation on behalf of
the principal obligor, or has otherwise in exchange for his/her own property
performed
any other act intended to cause the obligation to be extinguished, such
guarantor shall have a right to obtain reimbursement from
the principal obligor.
2 The provision of paragraph 2 of Article 442 shall apply mutatis mutandis to the
cases set forth
in the preceding paragraph.
Article 460 Entrusted Guarantor's Right to Obtain Reimbursement in Advance
In cases where a guarantor
has given a guarantee as entrusted by the principal
obligor, the guarantor may exercise in advance his/her right
to obtain
reimbursement vis-à-vis the principal obligor if:
i the principal obligor is subject to a ruling for the
commencement of
bankruptcy procedures, and the obligee does not participate in the distribution
of the bankruptcy
estate;
ii the obligation is due; provided, however, that, no extension of time granted
by the obligee to the
principal obligor after the conclusion of the contract of
guarantee may be raised as a defense vis-à-vis the guarantor;
and
iii ten years have elapsed after the conclusion of the contract of guarantee in
the cases where the time for
performing the obligation is uncertain and even its
maximum duration cannot be ascertained.
Article 461 Cases where Principal
Obligor Reimburses Guarantor
1 In cases where a principal obligor reimburses a guarantor pursuant to the
provisions of the
preceding two Articles, the principal obligor may demand the
guarantor to provide security or to obtain the discharge of the principal
obligor
until and unless the obligee has received the full satisfaction of the entire
obligation.
2 In the case prescribed
in the preceding paragraph, the principal obligor may be
relieved of liability for reimbursement by making a deposit with an official
depository, by providing security, or by procuring the discharge of the liabilities of
the guarantor.
Article 462 Right
to Obtain Reimbursement of Guarantor Not Entrusted by
Principal Obligor
1 If a person, who has become a guarantor without
the entrustment of the
principal obligor, has performed the obligation or has otherwise in exchange for
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his/her own property procured the release from liability of the principal obligor,
the principal
obligor must reimburse the guarantor to the extent that the principal
obligor was enriched at the time of such performance of the
obligation.
2 A person who has become a guarantor against the will of the principal obligor
shall have the right to obtain reimbursement
only to the extent that the principal
obligor is actually enriched. In such case, if the principal obligor asserts that
he/she
had, prior to the day of the demand for reimbursement, grounds for set-off
against the obligee, the guarantor may demand that the
obligee perform the
obligation which would have been extinguished by operation of such set-off.
Article 463 Limitation on Reimbursement for
Guarantor who Failed to give Notice
1 The provisions of Article 443 shall apply mutatis mutandis to a guarantor.
2 In cases
where a guarantor has become a guarantor as entrusted by the
principal obligor, if he/she performed the obligation or otherwise
in exchange for
his/her own property performed any act to cause the obligation to be extinguished
without knowledge, the provision
of Article 443 shall apply mutatis mutandis also
with respect to the principal obligor.
Article 464 Right to Obtain Reimbursement
of Guarantor for Jointly and Several
Obligation or Indivisible Obligation
A person who has become a guarantor for one of the jointly
and several obligors or
for one of the indivisible obligors shall have the right to obtain reimbursement from
the other obligors
only to the extent of such portion of the obligation which he/she
bears.
Article 465 Right of Joint Guarantors to Obtain Reimbursement
for One
Obligation
1 Where there are several guarantors, if one guarantor has paid the entire
amount of the obligation or any
amount exceeding the portion which is borne by
such guarantor because the principal obligation is indivisible, or because there
is a
special provision that each guarantor should pay the entire amount, the provisions
of Articles 442 to 444 inclusive shall
apply mutatis mutandis.
2 Except in cases provided in the preceding paragraph, if one of the guarantors
who are not jointly
and severally liable has paid the entire amount or any amount
exceeding the portion to be borne by that guarantor, the provisions
of Article 462
shall apply mutatis mutandis.
Division II Revolving Guarantee on Loans
Article 465-2 Liability
of Guarantor of Contract for Revolving Guarantee on Loans
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1 A guarantor
to a contract of guarantee the principal obligation of which is one or
more unidentified obligations within a certain specified
scope hereinafter referred
to as a "contract for revolving guarantee" whereby the scope of such obligation
includes any
obligation which is incurred as a result of the transaction of lending
money or accepting discount of a negotiable instrument hereinafter
referred to as
an "loan obligation" excluding any contract in which the guarantor is a juridical
person, hereinafter referred
to as a "contract for revolving guarantee on loans"
shall be liable for the satisfaction of the amount of the principal of the
relevant
principal obligation, interest, any penalty and damages in connection with such
principal obligation, and all other
amounts incidental to such obligation, as well as
the amount of any penalty and damages which are agreed on with regard to such
guarantee obligation, which liability shall be limited in aggregate, however, to a
certain maximum amount which pertains to all
of the above-mentioned amounts.
2 A contract for revolving guarantee on loans shall not be effective unless the
maximum amount
set forth in the preceding paragraph is stipulated.
3 The provisions of paragraph 2 and paragraph 3 of Article 446 shall apply
mutatis mutandis to the stipulation of a maximum amount in a contract for
revolving guarantee on loans provided in paragraph
1.
Article 465-3 Principal Determination Date for Contract for Revolving Guarantee on
Loans
1 In the cases where a contract
for revolving guarantee on loans provides the date
on which the principal of the principal obligation should be determined
hereinafter referred to as the "principal determination date" , if it is provided
that such principal determination date shall
fall on any day on and or after the
day on which five years have elapsed after the day of the conclusion of the
relevant contract
for the revolving guarantee on loans, such provision for the
principal determination date shall not be effective.
2 In the cases where a contract for revolving guarantee on
loans does not provide
a principal determination date including cases where the provision on the
principal determination
date is not effective pursuant to the provision of the
preceding paragraph , the principal determination date thereof shall fall
on the
day on which three years have elapsed after the day of the conclusion of the
relevant contract for revolving guarantee
on loans.
3 In the cases where any change of the principal determination date provided in a
contract for revolving guarantee
on loans is to be effected, if the principal
determination date as changed falls on a day on and or after the day on which five
years have elapsed after the day of such change, such change of the principal
determination date shall not be effective; provided,
however, that, this shall not
apply to the cases where the change of the principal determination date is effected
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within two months immediately preceding the principal determination date, and
the principal
determination date as changed falls on a day within five years from
the original principal determination date.
4 The provisions
of paragraph 2 and paragraph 3 of Article 446 shall apply
mutatis mutandis to the provisions of a principal determination date
set forth in a
contract for revolving guarantee on loans and a change thereof excluding any
provision which provides
to the effect that the principal determination date shall
fall on a day within three years from the day of the conclusion of such
contract for
revolving guarantee on loans, and any change which is intended to change the
principal determination date
to a day preceding the original principal
determination date .
Article 465-4 Grounds for Determination of
Principal in Contract for Revolving
Guarantee on Loans
The principal for the principal obligation under a contract for revolving
guarantee
on loans shall be determined if:
i an obligee has filed a petition for compulsory execution or exercise of any
security interest with respect to a claim the subject- matter of which is payment
of money on any property of the
relevant principal obligor or guarantor;
provided, however, that this provision shall apply only in cases where the
proceedings for the compulsory execution or exercise of the security interest
have been commenced;
ii the
relevant principal obligor or guarantor has become subject to a ruling of
the commencement of bankruptcy procedures; or
iii the relevant principal obligor or guarantor has died.
Article 465-5 Right to Obtain Reimbursement in Contract for
Revolving Guarantees
for Loan Obligation in cases where Guarantor is Juridical Person
In cases of a contract for revolving guarantee
under which the guarantor is a
juridical person and the scope of the principal obligation thereof includes an
obligation on loans,
if the maximum amount provided in paragraph 1 of Article 465-2
is not provided, if the principal determination date is not specified,
or if the provision
on the determination date or any change thereof would not be effective should the
provisions of paragraph 1 or
paragraph 3 of Article 465-3 be applied, a contract of
guarantee with regard to the right to obtain reimbursement of the guarantor
for the
contract for revolving guarantee against the principal obligor excluding cases where
the guarantor is a juridical person
shall not be effective.
Section IV Assignment of Claims
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-
Article 466 Assignability of Claims
1 A claim may be assigned; provided, however, that, this shall not apply to the
cases
where its nature does not permit the assignment.
2 The provisions of the preceding paragraph shall not apply in cases where the
parties have manifested their intention to the contrary;
provided, however, that
such manifestation of intention may not be asserted against a third party without
knowledge.
Article
467 Requirement for Assertion of Assignment of Nominative Claim against
Third Parties
1 The assignment of a nominative claim may
not be asserted against the
applicable obligor or any other third party, unless the assignor gives a notice
thereof to the obligor
or the obligor has acknowledged the same.
2 The notice or acknowledgement set forth in the preceding paragraph may not be
asserted
against a third party other than the obligor unless the notice or
acknowledgement is made using an instrument bearing a fixed date.
Article 468 Defense of Obligor upon Assignment of Nominative Claim
1 In the cases where the obligor has given the acknowledgement
referred to in the
preceding Article without objection, even if there are grounds which could have
been raised as a defense against
the assignor, he/she may not raise such grounds
as a defense against the assignee. In such case, if the obligor has paid any money
or delivered anything or assumed a new obligation to or for the benefit of the
assignor to obtain the extinction of his/her obligation,
the obligor may recover the
money paid or other thing delivered, or may deem that the new obligation had not
been assumed, as
the case may be.
2 In cases where the assignor has merely given notice of the assignment, the
obligor may raise any ground as
a defense against the assignee which accrues
vis-à-vis the assignor before he/she receives such notice as a defense against the
assignee.
Article 469 Requirement for Assertion of Assignment of Debt Payable to Order
against Third Parties
The assignment
of any debt payable to order may not be asserted against the
relevant obligor or any other third party unless the certificate representing
such
claim is tendered to the assignee with the endorsement of the relevant assignment.
Article 470 Examination Right of Obligor
of Debt Payable to Order
The obligor of any debt payable to order shall have the right, but not the
obligation, to examine the
authenticity of the identity of the bearer of the relevant
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certificate and the
signature and seal affixed thereon; provided, however, that the
performance of the applicable obligation shall be void if the obligor
has knowledge or
is grossly negligent.
Article 471 Examination Right of Obligor of Claim Payable to Obligee or Holder
The provisions
of the preceding Article shall apply mutatis mutandis to the cases
where any certificate regarding the claim specifies the name of
the obligee and note
that the payment should be made to the bearer of such certificate.
Article 472 Limitation on Defense of
Obligor in cases of Assignment of Debt
Payable to Order
The obligor of a debt payable to order may not use any grounds which could
have
been raised as defenses against the obligee before the assignment of the relevant
debt payable to order as defenses against
an assignee without knowledge, except for
the matter specified on the relevant certificate or any result which necessarily arises
from the nature of such certificate.
Article 473 Limitation on Defense of Obligor in cases of Assignment of Bearer
Certificate
of Claims
The provisions of the preceding Article shall apply mutatis mutandis to a bearer
certificate of claims.
Section
V Extinction of Claims
Subsection I Performance
Division I General Provisions
Article 474 Performance
by Third Parties
1 The performance of an obligation may be effected by a third party; provided,
however, that, this shall not
apply in cases where the nature of such obligation
does not permit such performance or the parties have manifested their intention
to
the contrary.
2 A third party who has no interest in an obligation may not perform the
obligation against the will of the obligor.
Article 475 Recover of any Property Tendered to Perform Obligation
In cases where a person who performed his/her obligation delivered
any property
owned by others as the performance of the obligation, the person who made such
performance may not recover such property
unless he/she effects an effective
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performance de novo.
Article 476
In cases
where any possessor who has limited capacity to act with respect to the
act of assignment delivers any property to perform any obligation,
and later rescinds
such performance, the relevant possessor may not recover such property unless
he/she effects an effective performance
de novo.
Article 477 Effect of Performance in cases Any Property Delivered to Perform
Obligation is Consumed or Assigned
In the case referred to in the preceding two Articles, if an obligee without
knowledge consumes or assigns any property which he/she
received as the
performance of the obligation, such performance shall be effective. In such case, if
the relevant obligee has received
any request for compensation from a third party,
he/she shall not be precluded from seeking reimbursement from the person who
performed
the obligation.
Article 478 Performance to a Holder of Quasi-Possession of Claim
Any performance made vis-à-vis a holder of quasi-possession
of the claim shall
remain effective to the extent the person who performed such obligation acted
without knowledge, and was free
from any negligence.
Article 479 Performance to Person Without Authority to Receive Performance
Except as provided in the preceding
Article, any performance made vis-à-vis any
person who has no authority to receive the performance shall have the effect only to
the extent the relevant obligee is enriched as a result thereof.
Article 480 Performance to Bearer of Receipt
A bearer of a receipt
is deemed to have the authority to accept performance;
provided, however, that, this shall not apply to the cases where the person
who made
the performance knew, or was negligent in not knowing, that the bearer did not have
the authority.
Article 481 Performance
by Third-party Obligor who had been Ordered to Suspend
Payment
1 If a third-party obligor who has been enjoined from making payment
has paid
his/her obligation to his/her own obligee, the relevant attaching obligee shall be
entitled to request such third-party
obligor to make payment de novo to the extent
he/she suffered the damages.
2 The provision of the preceding paragraph shall
not preclude the relevant
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third-party obligor from exercising his/her right
to obtain reimbursement from
his/her obligee.
Article 482 Substitute Performance
If an obligor, in lieu of the performance
he/she originally incurred, provided any
other type of performance with the acknowledgment of the obligee, such performance
shall
have the same effect as that of the original performance.
Article 483 Delivery of Specific Thing in its Existing State
If the
subject of a claim is the delivery of a specific thing, the person who intends
to effect any performance must deliver such thing
on an "as-is" basis as of the time
when the delivery is due.
Article 484 Place of Performance
Unless any other intention is manifested
with respect to the place where the
performance should take place, the delivery of a specific thing must be effected at
the place
where such thing was located when the relevant claim accrued, and the
discharge of any other obligation must be effected at the current
domicile of the
obligee, respectively.
Article 485 Expense of Performance
Unless any other intention is manifested with respect
to the expense of
performance, such expenses shall be borne by the obligor; provided, however, that, in
cases the relevant obligee caused the expense of performance to increase by
relocating his/her domicile or taking any other actions, such incremental amount
shall be borne by the obligee.
Article 486 Request for Issuance of Receipt
Any person who made the performance shall be entitled
to request the person who
received the performance to issue a receipt.
Article 487 Request for Return of Claim Instrument
In
the cases where there is any instrument which evidences the claim, if the
person who makes the performance has completed his/her
entire performance, he/she
may demand the return of such instrument.
Article 488 Designation of Obligations to be Performed
1
In the cases where an obligor owes to a single obligee more than one obligations
which requires the performance of the same kind,
if any performance tendered to
discharge the obligation is not sufficient to extinguish all obligations, the person
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who tenders the performance may, at the time of such tender, designate particular
obligations
to which such performance should be allocated before any others.
2 If the person who tenders the performance does not make
the designation
pursuant to the provision of the preceding paragraph, the person who receives the
performance may, at the time
of such receipt, designate a particular obligation to
which such performance should be allocated before any others; provided, however,
that, this shall not apply to the cases where the person who tenders the
performance immediately raises his/her objection to
such allocation.
3 The designation of the performance under the preceding two paragraphs shall be
effected by manifesting
the intention to the counterparty.
Article 489 Statutory Allocation
In cases where neither the person who tenders the performance
nor the person
who receives such performance does not designate the allocation of performance
pursuant to the provision of the preceding
Article, the allocation shall be effected as
stipulated in each of the following items:
i if the obligations include those
which are due and those which are not due
yet, the applicable performance shall be allocated to those which are due;
ii if all obligations are due, or none of the obligations are due, the applicable
performance shall be allocated
in the order of the obligations which shall result
in more benefit to the obligor when performed;
iii if all obligations
would have equal benefit to the obligor when performed,
the applicable performance shall be allocated in the order of the
obligations
which have, or should have, the earliest due date; and
iv the performance of obligations which are
equal in terms of the matters
listed in the preceding two items shall be allocated in proportion to the amount
of each obligation.
Article 490 Allocation in cases More than One Performance Should be Tendered
In the cases where more than
one performance should be tendered to discharge a
single obligation, if the person who must perform tenders any performance which
is
not sufficient to extinguish such obligation in its entirety, the provision of the
preceding two Articles shall apply mutatis
mutandis.
Article 491 Allocation in cases Principal, Interest, and Expenses Should be Paid
1 In cases where the obligor
should pay the principal as well as the applicable
interest and expenses with respect to one or more obligation s , if the person
who
must perform tenders any performance which is not sufficient to extinguish such
obligation in its entirety, such performance
must be allocated first to the expense,
and then to the interest and principal, in this order.
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2 The provision of Article 489 shall apply mutatis mutandis to the cases set forth
in the preceding paragraph.
Article 492 Effect of Tender of Performances
Upon tendering the performance, the relevant obligor shall be relieved from any
and all responsibilities which may arise from
the nonperformance of the obligation.
Article 493 Method of Tender of Performances
The tender of the performance must be made
actually consistent with the main
purport of the obligation; provided, however, that, if the obligee refuses to accept
such performance
in advance, or any act is required on the part of the obligee with
respect to the performance of the obligation, it shall be sufficient
if the obligor
demands the acceptance thereof by giving a notice that the tender of the
performance has been prepared.
Division II Deposit of Subject-Matter of Performance
Article 494 Deposit
If an obligee refuses, or is unable, to accept the
performance, the person who can
make the performance hereinafter in this Division referred to as the "performer"
may be relieved
from his/her obligation by depositing the subject-matter of the
performance with an official depository. The same shall apply
in cases the
performer is unable to ascertain the obligee without any negligence on the part of
the performer.
Article 495 Method
of Deposit
1 The deposit pursuant to the provision of the preceding Article must be made
with the official depository having
jurisdiction over the district where the relevant
obligation must be performed.
2 In cases where there is no specific provision
in the laws and regulations with
respect to the official depository, the court must, at the request of the performer,
designate
the depository and appoint a custodian of the property to be deposited.
3 A person who has effected a deposit pursuant to the
provision of the preceding
Article must notify the obligee of the deposit without delay.
Article 496 Recovery of Deposited Property
1 As long as the obligee does not accept the deposit, or the judgment which
pronounces that the deposit is effective does not
become unappealable, the
performer may recover the deposited property. In such case, it is deemed that no
deposit has been effected.
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2 The provision of the preceding paragraph shall not apply in cases any
pledge or
mortgage has been extinguished due to the deposit.
Article 497 Property Not Suitable for Deposit
If any subject of
the performance is not suitable for deposit, or such property is
likely to suffer any loss or damage, the performer may, with the
permission of the
court, sell such property at public auction and deposit the proceeds of such sales
with the official depository.
The same shall apply in cases excessive expenses are
required for the preservation of such property.
Article 498 Requirements for
Acceptance of Deposited Property
In cases where the obligor is required to perform in exchange for the performance
of the obligee,
the obligee may not accept the relevant deposited property unless
he/she tenders his/her performance.
Division
III Subrogation by Performance
Article 499 Voluntary Subrogation
1 A person who has performed the obligation for the benefit
of an obligor may be
subrogated to the claim of the obligee by acquiring the acknowledgment of the
obligee upon such performance.
2 The provision of Article 467 shall apply mutatis mutandis to the case set forth
in the preceding paragraph.
Article
500 Statutory Subrogation
A person who has legitimate interest in effecting performance shall be subrogated
by operation of law
to the claim of the obligee by effecting performance.
Article 501 Effect of Subrogation by Performance
A person who is subrogated
to the claim of the obligee pursuant to the provisions
of the preceding two articles may exercise any and all rights possessed by
such
obligee as the effect of, and as a security for, such right to the extent he/she may
seek reimbursement under his/her own right;
provided, however, that:
i unless the fact of subrogation is noted in advance in the register of an
applicable statutory lien, pledge of real estate,
or mortgage, a guarantor may not
be subrogated to the claim of the obligee vis-à-vis any third party acquirer of the
real estate which is encumbered by such statutory lien, pledge of real estate, or
mortgage;
ii a third party
acquirer may not be subrogated to the claim of the obligee
vis-à-vis the guarantor;
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iii one of the third party acquirers of the real estate shall be subrogated to the
claim of the
obligee vis-à-vis other third party acquirers in proportion to the
value of each real estate;
iv one of the third
party pledgors shall be subrogated to the claim of the
obligee vis-à-vis other third party pledgors in proportion to the value
of each
property;
v as between a guarantor and a third party pledgor, the subrogation to the
claim of the
obligee shall be effected depending on the number of such persons
involved; provided, however, that, if there are more than
one third party pledgor,
such persons shall be subrogated to the claim of the obligee in proportion to the
value of each
property with respect only to the residual amount which remains
after deduction of the portion to be borne by the guarantor;
and
vi in the cases referred to in the preceding item, if the property in question is
real estate, the provisions
of item 1 shall apply mutatis mutandis.
Article 502 Subrogation by Partial Performance
1 If any performance by subrogation
occurs with respect to any portion of a claim,
the subrogee shall exercise his/her right together with the obligee in proportion
to
the value of his/her performance.
2 In the case set forth in the preceding paragraph, the cancellation of a contract
based on the failure to perform the obligation may be effected only by the obligee.
In such case, the obligee must reimburse
to the subrogee the value of the
performance he/she effected plus interest.
Article 503 Delivery of Claim Instrument by Obligee
1 An obligee who has received full performance by way of performance by
subrogation must deliver to the subrogee the instruments
regarding the claim and
any security he/she possesses.
2 In cases where any performance by subrogation occurs with respect
to any
portion of a claim, the obligee must enter such subrogation in the instruments
regarding the claim and allow the subrogee
to supervise the preservation of the
security he/she possesses.
Article 504 Loss of Security by Obligee
In cases where there
exists a person who has the right of subrogation pursuant to
the provision of Article 500, if the obligee lost, or diminished, his/her
security due to
his/her intentional act or negligence, the person who has the right of subrogation
shall be relieved to the extent
he/she can no longer seek the reimbursement due to
such loss or diminution.
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-
Subsection II Set-offs
Article 505 Requirements for Set-offs
1 In cases where two persons mutually owe to the
other any obligation with the
same kind of purpose, if both obligations are due, each obligor may be relieved
from his/her own
obligation by setting off each value thereof against the
corresponding amount of the obligation of the other obligor; provided,
however,
that, this shall not apply to the cases where the nature of the obligation does not
permit such set-off.
2 The provisions
of the preceding paragraph shall not apply in cases where the
relevant party manifests his/her intention to the contrary; provided,
however, that
such manifestation of intention may not be asserted against a third party without
knowledge.
Article 506 Method
and Effect of Set-offs
1 Set-offs shall be effected by means of manifestation of one party's intention to
the other. In such case, no condition or time limit may be added
to such
manifestation of intention.
2 The manifestation of intention set forth in the preceding paragraph shall take
effect
retroactively as of the time when the obligations of both parties became due
and suitable for set-off.
Article 507 Set-offs between
Obligations with Different Places of Performance
Set-offs may be effected even if the place of performance of both obligations
are
different. In such case, the party who intends to effect the set-off shall be liable for
any damages suffered by the counterparty
as result of such set-off.
Article 508 Set-offs Intended to Invoke a Claim Extinguished by Prescription
In cases where any claim
which was extinguished by a prescription had been
suitable for set-off prior to such extinguishment, the relevant obligee may effect
the
set-off.
Article 509 Prohibition of Effecting Set-offs Against Any Claim Arising from
Tortious Acts
If any claim arises
from a tortious act, the relevant obligor may not assert the
set-off against the obligee.
Article 510 Prohibition of Set-offs Against
Any Claim Immune from Attachment
If any claim is immune from any attachment, the relevant obligor may not assert
the set-off against
the obligee.
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Article 511 Prohibition of Set-offs Against Any Claim Subject to
Injunction
A third-party obligor who has been enjoined from making payment may not assert
the set-off against any after-acquired
claim against the relevant attaching obligee.
Article 512 Allocation of Set-off
The provisions of Articles 488 to 491 inclusive
shall apply mutatis mutandis to the
set-off.
Subsection III Novation
Article 513 Novation
1 If the parties conclude
a contract which changes any element of an obligation,
such obligation shall be extinguished by novation.
2 It is deemed that
an element of obligation has been changed if a conditional
obligation is made an unconditional obligation, if a condition is added
to an
unconditional obligation, or if any condition on an obligation is changed.
Article 514 Novation by Substitution of Obligor
A novation by substitution of obligor may be effected between the obligee and a
person who becomes the obligor after the novation;
provided, however, that, this
shall not apply to the cases where it is contrary to the intention of the obligor prior
to the novation.
Article 515 Novation by Substitution of Obligee
A novation by substitution of obligee may not be asserted against a third party
unless it is made using an instrument bearing a fixed date.
Article 516
The provisions of paragraph 1 of Article 468 shall apply
mutatis mutandis to the
novation by substitution of obligee.
Article 517 Cases where Obligations Existing Prior to Novation
are not
Extinguished
If any obligation which arises by novation is not established or is rescinded on the
ground of illegality
or due to reasons unknown to the parties, the obligation which
existed prior to the novation shall not be extinguished.
Article
518 Conversion of Security to Obligation After Novation
To the extent of the purpose of the obligation in effect prior to the novation,
the
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parties to the novation may convert the pledge or mortgage created as the
security of
such obligation to the obligation in effect after the novation; provided, however, that,
in cases where any third party
created such security, the acknowledgment of such
third party must be obtained.
Subsection IV Release
Article 519
If an obligee manifests his/her intention to release an obligation to the obligor,
such obligation shall be extinguished.
Subsection V Merger
Article 520
If a claim and obligation becomes vested in the same person, such claim shall be
extinguished;
provided, however, that, this shall not apply to the cases where such
claim is the subject-matter of the right of a third party.
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