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This English translation of the Civil Code has been prepared up to the revisions of Act No. 78 of
2006 Effective June 21, 2006
in compliance with the Standard Bilingual Dictionary March 2007
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 2 Real Rights
Chapter
1 General Provisions
Article 175 Establishment of Real Rights
No real rights can be established other than those prescribed by
laws including
this Code.
Article 176 Creation and Transfer of Real Rights
The creation and transfer of real rights shall take
effect solely by the
manifestations of intention of the relevant parties.
Article 177 Requirements of Perfection of Changes
in Real Rights concerning
Immovable properties
Acquisitions of, losses of and changes in real rights concerning immovable
properties
may not be asserted against third parties, unless the same are registered
pursuant to the applicable provisions of the Real Estate
Registration Act Law No.
123 of 2004 and other laws regarding registration.
Article 178 Requirements
of Perfection of Transfer of Real Rights concerning
Movables
The transfers of real rights concerning movables may not be asserted
against third
party, unless the movables are delivered.
-1-
Article 179 Confusion
of Rights
1 If ownership and other real rights with respect to the same Thing have vested in
the same person, such other real
rights shall be extinguished; provided, however,
that, this shall not apply to cases where that Thing is, or such other real rights
are, the object of the rights of a third party.
2 If any real rights other than ownership and other rights for which those
real
rights are the object have vested in the same person, such other rights shall be
extinguished. In such cases, the provisions
of the proviso to the preceding
paragraph shall apply mutatis mutandis.
3 The provisions of the preceding two paragraphs shall
not apply to possessory
rights.
Chapter 2 Possessory Rights
Section 1 Acquisition of Possessory Rights
Article 180 Acquisition of Possessory Rights
Possessory rights shall be acquired by holding Thing with an intention to do so
on
one s own behalf.
Article 181 Possession by Agents
Possessory rights may be acquired by an agent.
Article 182 Actual
Delivery and Summary Delivery
1 The transfers of possessory rights shall be effected by the delivery of the Thing
possessed.
2 In cases where a transferee or his/her agent actually holds a Thing, the transfers
of possessory rights may be effected by
the parties' manifestations of intention
alone.
Article 183 Constructive Transfers
If an agent manifests an intention that
The thing possessed by it shall
thenceforward be possessed on behalf of its principal, the principal shall thereby
acquire possessory
rights.
Article 184 Transfers of Possession by Instructions
In cases where a Thing is in an agent s possession, if the
principal orders that
agent to thenceforward possess that Thing on behalf of a third party, and such third
party consents thereto,
that third party shall acquire possessory rights.
-2-
Article 185 Change in Nature
of Possession
In cases where it is assumed, due to the nature of the title, that a possessor does
not have the intention to own,
the nature of the possessor s possession shall not
change unless that possessor manifests to the person who made him/her
possess the
Thing that he/she has the intention of ownership, or commences possession under a
new title with an intention to own
from that time.
1 It shall be presumed that a possessor possesses Thing with the intention to own,
in good faith peacefully
and in public.
2 If there is evidence of possession at two different points in time, it shall be
presumed that possession continued
during the interval.
Article 187 Succession to Possession
1 A successor to a possessor may, at the option of the successor,
assert either
his/her possession only, or his/her possession together with that of the predecessor.
2 In cases where a person
asserts the possession of the predecessor together with
his/her own, he/she shall also succeed to defects in the same.
Section 2 Effect of Possessory Rights
Article 188 Presumption of Lawfulness of Rights Exercised with respect to
Possessed
Thing
It shall be presumed that a possessor lawfully has the rights that a possessor
exercises with respect to Thing in his/her
possession.
Article 189 Acquisition of Fruits by Possessor in Good Faith
1 A possessor in good faith shall acquire fruits derived
from Thing in his/her
possession.
2 If a possessor in good faith is defeated in an action on the title, he/she shall be
deemed
to be a possessor in bad faith as from the time when such action was
brought.
Article 190 Return of Fruits by Possessors in bad
faith
1 A possessor in bad faith shall be obligated to return fruits, and reimburse the
price of fruits that he/she has already
consumed, has damaged due to negligence or
has failed to collect.
2 The provisions of the preceding paragraph shall apply mutatis
mutandis to
persons who possess Thing through violence or duress, or by concealing the same.
-3-
Article 191 Compensation for Damages by Possessors
If possessed Thing has suffered loss or damage due to reasons
attributable to the
possessor, a possessor in bad faith shall be liable to compensate the person
recovering the loss for the entire
loss, and a possessor in good faith shall be liable to
compensate such person for the loss to the extent he/she is actually enriched
as a
result of such loss or damage; provided, however, that a possessor who does not have
the intention of holding as owner must
compensate the entire loss, even if he/she is
in good faith.
Article 192 Immediate Acquisition
A person who commences the possession
of movables peacefully and openly by a
transactional act acquires rights to exercise with respect to such movables
immediately if
he/she is in good faith and faultless.
Article 193 Recovery of Stolen or Lost Goods
In the cases provided for in the preceding
article, if the possessed Thing is lost or
stolen goods, the victim or person who lost the Thing may demand the recovery of
that
Thing from the possessor within two years from the time of the loss or theft.
Article 194
If a possessor purchased lost or stolen
goods in good faith at an auction or in a
public market, or from a merchant who sells similar Things, the victim or person who
lost
the Thing may not recover the Thing unless he/she reimburses the possessor for
the price paid.
Article 195 Acquisition of Rights
through Possession of Animals
A person who possesses a non-domestic animal bred by others acquires rights to
exercise with respect
to that animal if he/she was in good faith at the beginning of
the possession, and if recovery is not demanded by the owner of the
animal within
one month of the time when that animal left the possession of its owner.
Article 196 Possessors' Claims for Reimbursement
of Expenses
1 In cases where a possessor returns Thing in his/her possession, he/she may have
the person recovering the Thing
reimburse necessary expenses including amounts
paid to preserve that Thing, provided, however, that, if the possessor has acquired
fruits, ordinary necessary expenses shall be borne by the possessor.
2 With respect to beneficial expenses including amounts
paid by a possessor to
improve Thing in his/her possession, limited to cases where there is a current
increase in value, the
possessor may, at the election of the person recovering the
Thing, have the person recovering the Thing reimburse monies the possessor
paid
-4-
or the amount of the increased value; provided, however, that, with regard
to a
possessor in bad faith, the court may, at the request of the person recovering the
Thing, grant a reasonable period for
same.
Article 197 Possessory Actions
A possessor may bring a possessory action in accordance with the provisions of the
following
article through Article 202. The same shall apply to a person who takes
possession on behalf of others.
Article 198 Actions for
Maintenance of Possession
When a possessor is disturbed in his/her possession, he/she may claim for the
discontinuation of the
disturbance and compensation for damages by bringing an
action for maintenance of possession.
Article 199 Actions for Preservation
of Possession
When a possessor is likely to be disturbed of his/her possession, he/she may claim
either for the prevention of the
disturbance or for the submission of security for the
compensation for damages by bringing an action for preservation of possession.
Article 200 Actions for Recovery of Possession
1 When a possessor is forcibly dispossessed, he/she may claim for the restoration
of
the Thing and compensation for damages by bringing an action for recovery of
possession.
2 An Action for recovery of possession
cannot be filed against a specific successor
of the usurper of possession; provided, however, that this shall not apply if that
successor had knowledge of the fact of usurpation.
Article 201 Periods of Time for Bringing Possessory Actions
1 Actions for
maintenance of possession must be brought during the disturbance or
within one year after the disturbance is extinguished; provided,
however, that, in
cases where possessed Thing is damaged due to construction, if one year has
elapsed from the time when that
construction started or if that construction has
been completed, such action cannot be brought.
2 Actions for preservation of
possession may be brought so long as the danger of
disturbance exists. In such cases, the proviso to the preceding paragraph
shall
apply mutatis mutandis if possessed Thing is likely to be damaged by construction.
3 Actions for recovery of possession
must be brought within one year of the time
when possession was unlawfully usurped.
Article 202 Relationship with Actions on
Title
-5-
1 Possessory Actions do not preclude actions on title, and actions
on title do not
preclude possessory actions.
2 With respect to possessory actions, no judgment may be made based on reasons
relating to title.
Section 3 Extinction of Possessory Rights
Article 203 Grounds for Extinction of Possessory
Rights
Possessory rights shall be extinguished when the possessor renounces his/her
intention to possess, or loses possession of
the possessed Thing; provided, however,
that this shall not apply if the possessor brings an action for recovery of possession.
Article 204 Grounds for Extinction of Agent s Possessory Rights
1 In cases where a person possesses a Thing through
an agent, possessory rights
shall be extinguished on the grounds listed below:
i That the principal renounces his/her
intention to have his/her agent possess;
ii That the agent manifests his/her intention to the principal to thenceforward
possess the possessed Thing on behalf of himself/herself or a third party; or
iii That the agent has lost the direct
control over the possessed Thing.
2 Possessory rights shall not be extinguished solely as a result of the extinction of
the power of representation.
Section 4 Quasi-Possession
Article 205
The provisions of this Chapter shall apply
mutatis mutandis to cases where a
person exercises his/her property rights with an intention to do so on his/her own
behalf.
Chapter 3 Ownership
Section 1 Extent of Ownership
Subsection 1 Content and Scope of Ownership
Article 206 Content of Ownership
An owner has the rights to freely use, obtain profit from and dispose of the Thing
owned, subject
to the restrictions prescribed by laws and regulations.
Article 207 Scope of Ownership in Land
-6-
Ownership in land shall extend to above and below the surface of the land, subject
to the restrictions prescribed
by laws and regulations.
Article 208
Deleted
Subsection 2 Neighboring Relationships
Article 209 Requests for
Use of Neighboring Land
1 An owner of land may request the use of the neighboring land to the extent
necessary for constructing
or repairing walls or buildings on or in the vicinity of
the boundary; provided, however, that he/she may not enter the dwelling
house of
the neighbor without the approval of the same.
2 In the cases provided for in the preceding paragraph, if the neighbor
sustained
damages, he/she may claim compensation.
Article 210 Right of Passage over Other Land for Access to Public Roads
1
An owner of land that is surrounded by other land and has no access to public
roads may pass through the other land that surrounds
his/her land to reach the
public roads.
2 The preceding paragraph shall likewise apply in cases where an owner cannot
access
the public roads unless he/she passes through ponds, lakes, rivers,
waterways or seas, or in cases where there is a considerable
difference in height
between the land and the public road on account of a cliff.
Article 211
1 In the cases provided for in
the preceding article, the location and method of
passage must be so chosen as to meet the needs of the person who is entitled
to the
right of passage under the provisions of that article, and cause the least damage to
the other land.
2 A person who
holds the right of passage under the provisions of the preceding
article may construct a road if necessary.
Article 212
A person
who is entitled to the right of passage pursuant to the provisions of
Article 210 must pay compensation for damage caused to the
other land that he/she
passes through; provided, however, that, except for damage arising from the
construction of a road, compensation
may be paid on an annual basis.
Article 213
-7-
1 If the partition of land creates
a parcel of land that has no access to public
roads, the owner of such parcel of land may pass to the public roads only through
the lands owned by others who participated in the partition. In such cases, it
shall not be necessary to pay compensation.
2 The provisions of the preceding paragraph shall apply mutatis mutandis to cases
where the owner of land assigns part of his/her
land to others.
Article 214 Prohibition of Obstruction of Natural Water Streams
A landowner may not interfere with a natural
water stream flowing from
neighboring land.
Article 215 Removal of Barriers to Water Streams
If a stream is blocked at low-lying
ground due to a natural disaster or other
unavoidable event, an owner of higher ground may carry out construction work
necessary
to remove the barrier to the stream at his/her own expense.
Article 216 Repairs of Structures related to Streams
If land suffers,
or is likely to suffer, damage due to destruction or blockage of a
structure installed on other land to store, discharge or draw
water, the owner of that
land may have the owners of such other lands repair the structure or remove the
barriers, or, if necessary,
have the same carry out preventive construction work.
Article 217 Customs with respect to Allocation of Expenses
In the cases
provided for in the preceding two articles, if there are other customs
with respect to the allocation of expenses, those customs
shall prevail.
Article 218 Prohibition of Installation of Structures that Discharge Rainwater to
Neighboring Lands
A landowner
may not install any structure including a roof that discharges
rainwater directly onto neighboring land.
Article 219 Changes to
Streams
1 An owner of land containing a stream including a channel or moat may not
change the course or width of the same if
the land on the other side is owned by
others.
2 If the land on both sides of a stream is owned by the owner of the land
containing
the stream, that owner may change the course or the width of the same;
provided, however, that he/she must return the stream to
its natural course at the
point where the stream meets neighboring land.
3 If there are customs that differ from the provisions
of the preceding two
-8-
paragraphs, those customs shall prevail.
Article 220
Running Water through Lower Ground for Discharge
An owner of a higher ground may run water through lower grounds to dry out
his/her
higher ground in cases where that land is flooded, or to discharge surplus
water for household or agricultural or industrial use
until the water meets a public
stream or sewage system. In such cases, the location and method that cause the
least damage to
the lower ground must be selected.
Article 221 Use of Structures to Direct Water
1 A landowner may use structures established
by owners of higher ground or lower
ground in order to cause water from his/her land to pass through the same.
2 In the cases
provided for in the preceding paragraph, the person who uses the
structures of others must bear the expenses of the establishment
and preservation
of the structures in proportion to the benefit he/she enjoys.
Article 222 Construction and Use of Dams
1
If the owner of land containing a stream needs to construct a dam, he/she may
construct that dam by fixing it to the other side
even if the land on the other side
is owned by others; provided, however, that he/she must pay compensation for
damages arising
as a result.
2 The owner of the land on the other side may use the dam under the preceding
paragraph if he/she owns part of
the land containing the stream.
3 The provisions of Paragraph 2 of the preceding article shall apply mutatis
mutandis to the
cases provided for in the preceding paragraph.
Article 223 Installation of Boundary Markers
A landowner may install boundary
markers, sharing the expenses with the owner
of the neighboring land.
Article 224 Expenses of Installation and Preservation of
Boundary Markers
The expenses of installation and preservation of boundary markers shall be borne
equally by neighbors; provided,
however, that measuring expenses shall be borne in
proportion to the sizes of the relevant land parcels.
Article 225 Installation
of Fences
1 If two buildings are owned by different owners and there is an open lot between
them, each owner may install a fence
on the boundary, sharing the expenses with
the other owner.
2 If no agreement can be reached between the parties, the fence
under the
-9-
preceding paragraph must be wooden fencing, bamboo fencing or fencing
made of
similar material and must be two meters high.
Article 226 Expenses of Installation and Preservation of Fences
The expenses
of installation and preservation of the fences under the preceding
article shall be borne equally by the neighbors.
Article 227
Installation of Fences by One of Neighbors
One of neighboring owners may install a fence using materials better than those
provided
for in Paragraph 2 of Article 225 or elevating the height provided for under
the same paragraph; provided, however, that he/she must
bear the increase in
expenses arising as a result of the same.
Article 228 Customs relating to Installation of Fences
If there
are customs that differ from the provisions of the preceding three articles,
those customs shall prevail.
Article 229 Presumption
of Co-ownership of Boundary Markers
Boundary markers, fences, walls, channels and moats installed on boundary lines
shall be presumed
to be co-owned by the neighbors.
Article 230
1 The provisions of the preceding article shall not apply to a wall on a boundary
line that forms a part of a building.
2 If the height of a wall that separates two neighboring buildings of different
heights
is higher than the height of the lower building, the preceding paragraph
shall likewise apply with respect to such portion of that
wall that is higher than
the lower building; provided, however, that this shall not apply to fire walls.
Article 231 Construction
Work raising Height of Co-owned Walls
1 One of neighboring owners may raise the height of a co-owned wall; provided,
however,
that, if the wall cannot withstand the construction work, he/she must
reinforce that wall as necessary or rebuild the same.
2
If the height of a wall is raised under the provisions of the preceding paragraph,
the raised portion shall be owned solely by
the person who carried out the
construction work.
Article 232
In the cases provided for in the preceding article, if a neighbor
suffers damage,
he/she may demand compensation for the same.
- 10 -
Article 233 Cutting
of Branches and Roots of Trees and Bamboo
1 If a tree or bamboo branch from neighboring land crosses a boundary line, the
landowner
may have the owner of that tree or bamboo sever that branch.
2 If a tree or bamboo root from neighboring land crosses a boundary
line, the
owner of the land may sever that root.
Article 234 Restrictions on Buildings near Boundary Lines
1 In order to construct
a building, the building must be distanced 50 centimeters
or more away from the boundary line.
2 If a person attempts to construct
a building in violation of the provisions of the
preceding paragraph, the owner of the neighboring land may have construction
suspended or changed; provided, however, that, if one year has lapsed from the
time when such construction started or if that
building has been completed, the
owner may only claim damages.
Article 235
1 A person who installs a window or porch hereinafter
in this and the following
paragraph including a veranda at a distance of less than one meter from a
boundary line allowing
the observation of the residential land of others, must put
up a privacy screen.
2 The distance under the preceding paragraph
shall be calculated by measuring
the length of a straight line from the point on the window or porch closest to the
neighboring
land to where it reaches the boundary line at a right angle.
Article 236 Customs relating to Construction near Boundary Lines
If there are customs that differ from the provisions of the preceding two articles,
those customs shall prevail.
Article 237 Restrictions
on Digging near Boundary Lines
1 In order to dig a well, service water pit, sewage pit or compost pit, the same
must be distanced
two or more meters from the boundary line, and in order to dig
a pond, cellar or urine pit, the same must be distanced one or more
meters from
the boundary line.
2 In order to bury water pipes, or dig a channel or moat, the same must be
distanced from the
boundary line by a measurement equivalent to at least half the
depth of the same; provided, however, that the distance is not required
to be more
than one meter.
Article 238 Duty of Care regarding Digging near Boundary Lines
- 11 -
When construction under the preceding article is to be carried out near a boundary
line, necessary care must
be taken to ensure the prevention of earth collapses or
leakages of water or contaminated liquids.
Section 2 Acquisition
of Ownership
Article 239 Ownership in Ownerless Thing
1 Ownership of movables without an owner shall be acquired by possessing
the
same with the intention to own.
2 Ownership of real estate without an owner shall vest in the National Treasury.
Article
240 Finding of Lost Property
If the owner of lost property is not identified within three months of the time when
public notice
thereof is effected as prescribed by the Lost Property Act Law No. 73
of 2006 , the person who found the lost property shall acquire
ownership in the
same.
Article 241 Discovery of Hidden Treasure
If the owner of hidden treasure is not identified within six
months of the time
when public notice thereof is effected as prescribed by the Lost Property Act, the
finder shall acquire ownership
in the same; provided, however, that, with respect to
hidden treasure discovered in a Thing belonging to other person, the finder
and such
other person shall acquire equally proportionate ownership in the same.
Article 242 Accession to Real Estate
The owner
of real estate shall acquire ownership in a Thing that has been attached
thereto as its accessory ; provided, however, that the rights
of the other person who
attached such Thing by virtue of his/her title shall not be precluded.
Article 243 Accession to Movables
If two or more movables with different owners are so joined to each other that they
can no longer be separated without damaging
the same, ownership of the composite
Thing shall vest in the owner of the principal movables. The same shall apply if
excessive
expense would be required to separate the same.
Article 244
If the distinction of principal and accessory cannot be made between
the joined
movables, the owner of each movable shall co-own the composite Thing in proportion
to the respective price current at
the time of the accession.
- 12 -
Article 245 Mixture
The provisions of the preceding
two articles shall apply mutatis mutandis to cases
where the Things of different owners are mixed together and can no longer be
distinguished.
Article 246 Processing
1 If a person hereinafter in this article referred to as "Processor" contributes
work to the movables
of others, ownership of the Thing so worked up shall vest in
the owner of the materials; provided, however, that, if the value
derived from the
work significantly exceeds the value of the materials, the Processor shall acquire
ownership in the processed
Thing.
2 In the cases provided for in the preceding paragraph, if the Processor supplies a
portion of the materials, the Processor
shall acquire ownership in the processed
Thing, limited to if the value of such supplied materials plus the value derived
from
the work exceeds the value of the materials of others.
Article 247 Effect of Accession, Mixture or Processing
1 If the ownership
of a Thing is extinguished in accordance with the provisions of
Article 242 through the preceding article, other rights in existence
in relation to
such Thing shall also be extinguished.
2 In the cases provided for in the preceding paragraph, if the owner
of a Thing has
become the sole owner of the Thing formed by accession, mixture or processing
hereinafter in this paragraph
referred to as "composite Thing" , other rights in
existence in relation to such Thing shall thereafter exist in relation to the
composite Thing, and if the owner of the Thing becomes a co-owner of the
composite Thing, other rights in existence in relation
to such Thing shall thereafter
exist in relation to his/her share in the same.
Article 248 Demands for Compensation in conjunction
with Accession, Mixture or
Processing
A person who suffers loss because of the application of the provisions of Article 242
through
the preceding article may demand compensation in accordance with the
provisions of Article 703 and Article 704.
Section
3 Co-Ownership
Article 249 Use of property in co-ownership
Each co-owner may use the entire property in co-ownership in proportion
to his/her
share.
- 13 -
Article 250 Presumption of Proportion of Co-owner s
Shares
Each co-owner s share shall be presumed to be equal.
Article 251 Changes to Co-owned Thing
No co-owner may make
any alteration to the property in co-ownership without the
consent of the other co-owners.
Article 252 Management of Co-owned Thing
Matters regarding the management of property in co-ownership shall be
determined by a majority of the value of the shares of the
co-owners, except for cases
provided for in the preceding paragraph; provided, however, that any co-owner may
carry out acts of preservation.
Article 253 Obligations to bear Burdens regarding property in co-ownership
1 Each co-owner shall pay the expenses of management
and otherwise bear
burdens regarding the property in co-ownership, in proportion to his/her share.
2 If a co-owner does not
perform the obligations under the preceding paragraph
within one year, other co-owners may acquire the share of such person by
paying
reasonable compensation.
Article 254 Claims on property in co-ownership
A claim that one of co-owners holds against other
co-owners with respect to the
property in co-ownership may be exercised against their specific successors.
Article 255 Renunciation
of Shares and Death of Co-owners
If one of co-owners renounces his/her share or dies without an heir, his/her share
shall vest
in other co-owners.
Article 256 Demands for Partition of property in co-ownership
1 Each co-owner may demand the partition of
property in co-ownership at any
time; provided, however, that this shall not preclude concluding a contract to the
effect that
a partition will not occur for a period within five years.
2 The contract under the proviso to the preceding paragraph may be
renewed;
provided, however, that the period thereof may not exceed five years from the time
of the renewal.
Article 257
The
provisions of the preceding article shall not apply to the property in
co-ownership provided for in Article 229.
- 14 -
Article 258 Partition of property in co-ownership by Judgment
1 If no agreement is reached
among co-owners with respect to the partition of
property in co-ownership, a demand for partition of the same may be submitted
to
the court.
2 In cases provided for in the preceding paragraph, if the property in co-ownership
cannot be partitioned in
kind, or it is likely that the value thereof will be
significantly reduced by the partition, the court may order the sale of the
same at
auction.
Article 259 Performance of Obligations regarding Co-ownership
1 If one of the co-owners holds a claim regarding
co-ownership against other
co-owners, upon partition, the portion of the property in co-ownership that vests in
the obligors
may be appropriated for the performance of the same.
2 If it is necessary to sell the portion of the property in co-ownership
that vests in
the obligors to obtain the performance under the preceding paragraph, the obligee
may demand the sale of the same.
Article 260 Participation in Partition of property in co-ownership
1 Persons who hold rights with respect to property in co-ownership
and the obligee
of any co-owner may participate in partitions at their own expense.
2 If, notwithstanding a request for participation
under the provisions of the
preceding paragraph, partition is effected without allowing the participation of the
person who submitted
the request, that partition may not be asserted against the
person who submitted the request.
Article 261 Co-owners' Warranties
upon Partitions
Each co-owner shall bear, in proportion to his/her share, the responsibility of
warranty that a seller would have
as to the Thing other co-owners have acquired by
partition.
Article 262 Documents regarding property in co-ownership
1 If a
partition has been completed, each person who participated in the partition
must retain the documents regarding the Thing he/she
acquired.
2 Documents regarding the Thing that is partitioned for some or all co-owners
must be retained by the person who acquired
the largest portion of that Thing.
3 In the cases provided for in the preceding paragraph, if no person acquired the
largest
portion, the person who is to retain the documents shall be determined by
mutual agreement among the persons who participated in
the partition. If no
agreement is reached, the court shall designate the same.
4 The person who is to retain the
documents must allow other persons who
- 15 -
participated in the partition to use
the documents at the request of the same.
Article 263 Rights of Common with Nature of Co-ownership
Rights of common that have
the nature of co-ownership shall be governed by local
custom and shall otherwise be subject to the application of the provisions
of this
Section.
Article 264 Quasi Co-ownership
The provisions of this Section shall apply mutatis mutandis to the cases where
two
or more persons share property rights other than the ownership; provided, however,
that this shall not apply if laws and regulations
provide otherwise.
Chapter 4 Superficies
Article 265 Content of Superficies
A superficiary shall have the right to
use the land of others in order to own
structures, or trees or bamboo, on that land.
Article 266 Rents
1 The provisions of Articles
274 through 276 shall apply mutatis mutandis to cases
where the superficiary must pay periodical rent to the owners of the land.
2 In addition to the provisions of the preceding paragraph, provisions on leasehold
shall apply mutatis mutandis to rent to
the extent that application is not
inconsistent with the nature of the same.
Article 267 Mutatis Mutandis Application of
Provisions regarding Neighboring
Relationships
The provisions of Subsection 2, Section 1 of the preceding Chapter Neighboring
Relationships shall apply mutatis mutandis between superficiaries or between a
superficiary and a landowner; provided, however,
that the mutatis mutandis
application of the provisions of Article 229 to holders of superficies shall be limited to
cases where
structures on the boundary line are installed after the creation of the
superficies.
Article 268 Duration of Superficies
1 In
cases where the duration of superficies is not fixed by the act that established
the same, if there is no other custom, the superficiary
may renounce their rights at
any time; provided, however, that, if rent must be paid, the superficiary must give
notice one year
or more in advance or pay rent for one year that has not yet
become due and payable.
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2 If the superficiary does not renounce its rights in accordance with the provisions
of the preceding paragraph,
the court may, at the request of the parties concerned,
fix a duration of twenty years or more but not more than fifty years, taking
into
consideration the kind and status of the structures, or trees or bamboo and other
circumstances at the time of the creation
of the superficies.
Article 269 Removal of Structures
1 When the right of the superficiary is extinguished, he/she may restore
the land
to its original condition and remove structures and trees or bamboo on the same;
provided, however, that, if the owner
of the land gives notice that he/she will
purchase the same by offering to pay an amount equivalent to the market price,
the
superficiary may not refuse that offer without justifiable grounds.
2 If there are customs that differ from the provisions of
the preceding paragraph,
those customs shall prevail.
Article 269-2 Superficies for Underground or Overhead Space
1 Underground
or overhead space may be used as the object of superficies in order
to own structures by specifying limits in the vertical dimension.
In such cases,
restrictions on the use of that land may be added in the act that establishes
superficies for the purpose
of facilitating the exercise of the superficies.
2 The superficies under the preceding paragraph may be established even in cases
where third parties hold rights to use or receive profits from land if all persons
who hold those rights or rights underlying
the same consent. In such cases,
persons who hold the rights to use or receive profits from the land cannot preclude
the exercise of the superficies to the same.
Chapter 5 Emphyteusis
Article 270 Content of Emphyteusis
An emphyteuta
shall have the right to engage in cultivation or livestock farming
on the land of others by paying rent.
Article 271 Restrictions
on Alterations to Land by Emphyteutas
An emphyteuta may not make any alteration of the land that will result in
irreparable damage.
Article 272 Transfer of Emphyteusis or Leasing of Land
An emphyteuta may assign his/her rights to others, or lease the land during
the
duration of his/her rights to cultivate or farm livestock; provided, however, that this
shall not apply if such acts are prohibited
by the act that established his/her rights.
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Article 273 Mutatis Mutandis
Application of Provisions regarding Lease
In addition to the provisions of this Chapter and those provided for in the act that
established the emphyteusis, provisions regarding lease shall apply mutatis mutandis
to the obligations of a emphyteuta, to the extent
that application is not inconsistent
with the nature of the same.
Article 274 Rent Reductions or Exemptions
An emphyteuta may
not demand an exemption from or reduction in the rent even
if a loss of profits has been suffered due to force majeure.
Article
275 Waiver of Emphyteusis
If an emphyteuta has gained no profit whatsoever for three or more consecutive
years or has gained profits
less than the rent for five or more consecutive years due
to force majeure, he/she may surrender his/her rights.
Article 276 Demand
for Extinction of Emphyteusis
If an emphyteuta fails to pay the rent for two or more consecutive years, the
landowner may demand
the extinction of the emphyteusis.
Article 277 Customs regarding Emphyteusis
If there are customs that differ from the provisions
of Article 271 through the
preceding article, those customs shall prevail.
Article 278 Duration of Emphyteusis
1 The duration
of the emphyteusis shall be twenty years or more but no more than
fifty years. Even if an act establishing emphyteusis provides
for a period longer
than fifty years, the duration shall be fifty years.
2 The establishment of emphyteusis may be renewed;
provided, however, that the
duration of the same may not exceed fifty years from the time of renewal.
3 If an act establishing
emphyteusis does not provide for the duration of the
emphyteusis, the duration of the same shall be thirty years unless there is
a
custom to the contrary.
Article 279 Removal of Structures
The provisions of Article 269 shall apply mutatis mutandis to emphyteusis.
Chapter 6 Servitudes
Article 280 Content of Servitudes
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A person
entitled to a servitude shall have the right to make lands of others
available for the benefit of their own lands in accordance with
purposes prescribed in
the acts establishing the servitudes; provided, however, that those rights should not
violate the provisions
limited to those that relate to public policy under Section 1
of Chapter 3 Extent of Ownership .
Article 281 Appurtenant
Nature of Servitudes
1 Servitudes are appurtenant to ownership in the dominant land hereinafter
referring to the
land of a person entitled to a servitude, enjoying benefits from the
land of others and shall be transferred together with that
ownership, or shall be
the subject of other rights that exist in relation to the dominant land; provided,
however, that this
shall not apply if the act establishing the servitude provides
otherwise.
2 Servitudes may neither be assigned nor made the
subject of other rights apart
from the dominant land.
Article 282 Indivisibility of Servitudes
1 One of the co-owners of land
may not extinguish, with respect to his/her own
share, a servitude that exists on behalf of or in relation to the land.
2 In
cases where land is partitioned or a portion thereof is assigned to others, a
servitude shall exist on behalf of or in relation
to the respective portions of the
same; provided, however, that this shall not apply if the servitude, by its nature,
relates
only to a portion of the land.
Article 283 Acquisition of Servitudes by Prescription
A servitude can be acquired by prescription
so long as it is continuously exercised
and can be externally recognized.
Article 284
1 If one of the co-owners of land acquires
a servitude by prescription, the other
co-owners shall also acquire the same.
2 Interruption of prescription shall not be effected
against co-owners unless it is
made against each co-owner who exercises the servitude.
3 In cases where there are two or more
co-owners who exercise a servitude, even if
there is cause to suspend the prescription with respect to one of them, the
prescription
shall run in favor of each co-owner.
Article 285 Water Servitude
1 If water on servient land hereinafter referring to a land
of any person other
than the one entitled to the servitude, made available for the benefit of the
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dominant land subject to a water servitude is insufficient for the demand of the
dominant land
and the servient land, the water shall be used in proportion to the
demand on each parcel of land, firstly for household purposes
with the remaining
portion used for other purposes; provided, however, that this shall not apply if the
act establishing the
servitude provides otherwise.
2 If more than one water servitude is created with respect to the same servient
land, the persons
subsequently entitled may not prevent the use of water by those
previously entitled.
Article 286 Obligations of Owners of Servient
Land to Install Structures
If the owner of servient land has assumed obligations to install or repair structures
for the exercise
of a servitude at his/her own expense by the act establishing the
servitude or by a contract executed after the same, specific successors
of the owner of
the servient land shall also assume those obligations.
Article 287
An owner of servient land may be exempted
from obligations of the preceding
article at any time by abandoning the ownership in the portion of the land necessary
for the servitude
and transferring the same to the person entitled to a servitude.
Article 288 Use of Structures by the Owner of Servient Lands
1 The owner of a servient land may use structures installed on the servient land
for the exercise of the servitude to the extent
his/her use does not obstruct the
exercise of that servitude.
2 In the cases provided for in the preceding paragraph, the owner
of the servient
land must bear the expense for the installation and preservation of the structures
in proportion to the benefit
he/she receives.
Article 289 Extinction of Servitude by Acquisition by Prescription of Servient
Lands
If the possessor of
servient land has so possessed the same as to satisfy the
requirements for acquisitive prescription, the servitude shall be extinguished
thereby.
Article 290
The extinctive prescription of the preceding article is nullified by the person
entitled to the servitude
exercising his/her rights.
Article 291 Extinctive Prescription of Servitudes
The period of the extinctive prescription provided
for in Paragraph 2 of Article 167
shall commence upon the final exercise of the servitude if the servitude is not
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exercised continuously, and upon the occurrence of a fact that prevents the exercise
of the
servitude if the servitude is exercised continuously.
Article 292
In cases where dominant land is co-owned by more than one person,
if there is a
suspension or interruption of prescription in favor of one co-owner, such suspension
or interruption shall also be
effective for the benefit of other co-owners.
Article 293
If a person entitled to a servitude does not exercise a portion of
his/her rights, only
that portion shall be extinguished by prescription.
Article 294 Rights of Common without the Nature of Co-Ownership
Rights of common that do not have the nature of co-ownership shall be governed by
local customs and shall otherwise be subject
to the mutatis mutandis application of
the provisions of this Section.
Chapter 7 Rights of Retention
Article 295 Content
of Rights of Retention
1 If a possessor of a Thing belonging to another person has a claim that has arisen
with respect to that
Thing, he/she may retain that thing until that claim is
satisfied; provided, however, that this shall not apply if such claim has
not yet
fallen due.
2 The provisions of the preceding paragraph shall not apply in cases where
possession commenced by means
of a tortious act.
Article 296 Indivisibility of Rights of Retention
A holder of a right of retention may exercise his/her rights
against the whole of the
Thing retained until his/her claim is satisfied in its entirety.
Article 297 Collection of Fruits by Holders
of Rights of Retention
1 A holder of a right of retention may collect fruits derived from the Thing
retained, and appropriate
the same to the satisfaction of his/her claim prior to
other obligees.
2 The fruits under the preceding paragraph must be appropriated
first to the
payment of interest on the claim, and any remainder must be appropriated to the
satisfaction of the principal.
Article 298 Keeping the Thing Retained by Holders of Rights of Retention
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1 A holder of a right of retention must possess the Thing retained with the care of
a good manager.
2 A holder of rights of
retention may not use, lease or give as a security the Thing
retained unless he/she obtains the consent of the obligor; provided,
however, that
this shall not apply to uses necessary for the preservation of that Thing.
3 If the holder of a right of retention
violates the provisions of the preceding two
paragraphs, the obligor may demand that the right of retention be extinguished.
Article 299 Demands for Reimbursement of Expenses by Holders of Rights of
Retention
1 If a holder of a right of retention incurs
necessary expenses with respect to the
Thing retained, he/she may have the owner reimburse the same.
2 If a holder of a right
of retention incurs beneficial expenses with respect to the
Thing retained, to the extent that there is currently an increase in
value as a
result of the same, he/she may have the expenses incurred or the increase in value
reimbursed at the owner s election;
provided, however, that the court may, at the
request of the owner, grant a reasonable period for the reimbursement of the same.
Article 300 Exercise of Rights of Retention and Extinctive Prescription of Claims
The exercise of a right of retention shall
not preclude the running of extinctive
prescription of claims.
Article 301 Extinction of Rights of Retention by Tender of Security
An obligor may demand that a right of retention be extinguished by tendering
reasonable security.
Article 302 Extinction of Rights
of Retention by Loss of Possession
A right of retention shall be extinguished if the holder of the right of retention
loses possession
of the Thing retained; provided, however, that this shall not apply if
the Thing retained is leased or it is made the subject of
a pledge in accordance with
the provisions of Paragraph 2 of Article 298.
Chapter 8 Statutory Liens
Section 1
General Provisions
Article 303 Content of Statutory Liens
A holder of a statutory lien shall have the rights to have his/her
own claim
satisfied prior to other obligees out of the assets of the relevant obligor in accordance
with the provisions of laws including
this Act.
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Article 304 Extension of Security Interest to Proceeds of Collateral
1 A statutory lien may also be exercised against Things including monies that the
obligor is to receive as a result of the
sale, lease or loss of, or damage to, the
subject matter of the statutory lien; provided, however, that the holder of the
statutory
lien must attach the same before the payment or delivery of the monies
or other Thing.
2 The provisions of the preceding
paragraph shall likewise apply to the
consideration for real rights established by the obligor on the subject matter of the
statutory
lien.
Article 305 Indivisibility of Statutory Liens
The provisions of Article 296 shall apply mutatis mutandis to statutory liens.
Section 2 Kinds of Statutory Liens
Subsection 1 General Statutory Lien
Article 306 General Statutory
Lien
A person who has a claim that arose from the causes listed below shall have a
statutory lien over the entire property of the
obligor:
i Expenses for the common benefit;
ii An employer-employee relationship;
iii Funeral expenses;
or
iv The supply of daily necessaries.
Article 307 Statutory Liens for Expenses for Common Benefit
1 Statutory
liens for expenses for the common benefit shall exist with respect to
the expenses of preservation, liquidation or distribution
of the property of the
obligor incurred for the common benefit of all obligee.
2 With respect to expenses that were not
beneficial for all obligees, a statutory lien
shall exist solely for obligees who received a benefit as a result of such expenses.
Article 308 Statutory Liens for Employer-Employee Relationships
Statutory liens for employer-employee relationships shall exist
with respect to
salaries and other claims that arose under the employer-employee relationship
between the obligor and his/her employee.
Article 309 Funeral Expenses
1 Statutory liens for funeral expenses shall exist with respect to the reasonable
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expenses of a funeral observed for the obligor.
2 The statutory lien under
the preceding paragraph shall also exist with respect to
the reasonable expenses of a funeral observed by the obligor for a relative
whom
the obligor is bound to support.
Article 310 Statutory Liens for Household Items
Statutory liens for daily necessaries
shall exist with respect to the supply of food
and drink items, fuel and electricity for the most recent six months required for
the
household of the obligor or his/her relatives who reside with the obligor and whom
the obligor is bound to support and the domestic
servants of the same.
Subsection 2 Statutory Liens over Movables
Article 311 Statutory Liens over Movables
A person who has a claim that arose from the causes listed below shall have a
statutory lien over certain movables of the obligor:
i A lease of immovable property;
ii A lodging at a hotel or inn;
iii The transportation of passengers or
luggage;
iv The preservation of movables;
v The sale of movables;
vi The supply of seed or fertilizer
hereinafter including eggs of silkworms or
mulberry leaves used to feed silkworms ;
vii Agricultural labor;
or
viii Industrial labor.
Article 312 Statutory Liens for Leases of Immovable Properties
Statutory liens for a lease
of immovable property shall exist with respect to the
movables of the lessee in connection with obligations of the lessee that arose
from the
lease relationship including rent for that immovable property.
Article 313 Scope of Subject Matter of Statutory
Liens for Leases of Immovable
Properties
1 The statutory lien of a lessor of land shall exist with respect to movables
furnished
to that land or buildings for the use of that land, movables provided for
the use of that land, and fruits of that land in the
possession of the lessee.
2 The statutory lien of a lessor of a building shall exist with respect to movables
furnished
to that building by the lessee.
Article 314
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In the cases of assignment
of lessee s rights or subleasing, the statutory lien of
the lessor shall extend to the movables of the assignee or sublessee.
The same shall
apply to monies that the assignee or sublessee is to receive.
Article 315 Scope of Secured Claims under Statutory
Liens for Leases of Immovable
Properties
In cases where all of the lessee s property is to be liquidated, the statutory lien
of
the lessor shall exist only with respect to obligations, including rent, for the previous,
current and next terms, and obligations
to compensate for damage that arose in the
previous and current terms.
Article 316
In cases where a lessor has received a security
deposit, he/she shall have a
statutory lien solely in respect of the portion of his/her claim that will not be satisfied
by that
security deposit.
Article 317 Statutory Liens for Lodging at Hotels
Statutory lien for lodging at hotels shall exist with respect
to the hand luggage of a
hotel guest left at that hotel, in connection with room charges, and food and beverage
charges, that should
be borne by the hotel guest.
Article 318 Statutory Liens for Transportation
Statutory liens for transportation shall exist with
respect to luggage in the
possession of the transporter, in connection with transportation charges for
passengers or luggage and
expenses incidental to the same.
Article 319 Mutatis Mutandis Application of Provisions on Immediate Acquisition
The provisions
of Articles 192 through 195 shall apply mutatis mutandis to
statutory liens under the provisions of Article 312 through the preceding
article.
Article 320 Statutory Liens for Preservation of Movables
Statutory liens for the preservation of movables shall exist
with respect to
movables, in connection with expenses required for the preservation of those
movables, or expenses required for the
preservation, approval or execution of rights
regarding those movables.
Article 321 Statutory Liens for Sale of Movables
Statutory
liens for the sale of movables shall exist with respect to movables, in
connection with the price of those movables and interest
on the same.
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Article 322 Statutory Liens for Supply of Seed or Fertilizer
Statutory liens for the supply of seed or fertilizer shall exist with respect to fruits
including eggs of silk worms or any Thing
derived from the use of mulberry leaves
used to feed silkworms derived from land where the seed or fertilizer was used,
within
one year of that use, in connection with the price of that seed or fertilizer and
interest on the same.
Article 323 Statutory Liens
for Agricultural Labor
Statutory liens for agricultural labor shall exist, with respect to fruits derived from
labor, in connection
with the most recent year s wages of the person who engages in
that labor.
Article 324 Statutory Liens for Industrial Labor
Statutory liens for industrial labor shall exist, with respect to manufactured things
derived from labor, in connection with the
most recent three months' wages of the
person who engages in that labor.
Subsection 3 Statutory Liens for Immovable
Properties
Article 325 Statutory Liens for Immovable Properties
A person who has a claim that arose from the causes listed below
shall have a
statutory lien over certain immovable property of the obligor:
i The preservation of immovable property;
ii Construction work for immovable property; or
iii The sale of immovable property.
Article 326 Statutory Liens for
Preservation of Immovable Properties
Statutory liens for the preservation of immovable property shall exist with respect
to immovable
property, in connection with the expenses required for the preservation
of that immovable property or the expenses required for the
preservation, approval or
execution of rights regarding that immovable property.
Article 327 Statutory Liens for Construction Work
for Immovable Properties
1 Statutory lien for construction work for immovable property shall exist, with
respect to immovable
property, in connection with the expenses of construction
work performed by a person who designs, carries out or supervises construction
work regarding the immovable property of the obligor.
2 The statutory liens under the preceding paragraph shall exist, in
cases where
there is a current increase in the value of the immovable property resulting from
the construction work, with respect
to that increased value.
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Article 328 Statutory Liens for Sales of Immovable
properties
Statutory liens for sales of immovable properties shall exist, with respect to
immovable property, in connection with
the price of that immovable property and
interest on the same.
Section 3 Order of Priority of Statutory Liens
Article
329 Order of Priority of General Statutory Liens
1 In cases where there is conflict among general statutory liens, the order
of
priority shall follow the order listed in each item of Article 306.
2 In cases where there is conflict between a general
statutory lien and a special
statutory lien, the special statutory lien shall prevail over the general statutory
lien; provided,
however, that statutory liens on expenses for the common benefit
shall have the effect of prevailing over all obligees who received
the benefit of the
same.
Article 330 Order of Priority of Statutory Liens over Movables
1 In cases where there is conflict
among special statutory liens with respect to the
same movables, the order of priority shall follow the order listed below.
In such
cases, if there are two or more preservers with respect to the statutory liens for
preservation of movables listed
in Item ii , a new preserver shall prevail over
previous preservers.
i Statutory liens for leases of immovable
properties, lodging at hotels and
transportation;
ii Statutory liens for the preservation of movables; and
iii Statutory liens for the sale of movables, the supply of seed or fertilizer,
agricultural labor and industrial labor.
2 In the cases provided for in the preceding paragraph, if a holder of a statutory
lien ranked first knew at the time he/she
acquired that claim of the existence of a
holder of a statutory lien of the second or third rank, he/she cannot exercise his/her
rights against those persons. The same shall likewise apply against persons who
preserved Things on behalf of the holder of a
statutory lien of the first rank.
3 Regarding fruits, the first rank shall belong to persons who engage in
agricultural
labor, the second rand shall belong to persons who supply seed or
fertilizer, and the third rank shall belong to lessors of land.
Article 331 Order of Priority of Statutory Liens over Immovable properties
1 In cases where there is conflict among special
statutory liens with respect to the
same immovable properties, the order of priority shall follow the order of the items
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of Article 325.
2 In cases where successive sales are made with respect
to the same immovable
properties, the order of priority of the statutory liens for the sale of the immovable
properties among
sellers shall follow the chronological order of the sales.
Article 332 Statutory Liens with Same Priority
If there are two or
more holders of statutory liens with the same priority with
respect to the same object, the holders of statutory liens shall be paid
in proportion to
the amounts of their claims.
Section 4 Effect of Statutory Liens
Article 333 Statutory Liens and Third-party
Acquirers
Statutory liens may not be exercised with respect to the movables that are the
subject matter of the same after the obligors
have delivered those movables to
third-party acquirers.
Article 334 Conflict between Statutory Liens and Pledges of Movables
In cases where there is conflict between a statutory lien and a pledge of movables,
the pledgee of such movables shall have the same
rights as those of the holder of a
statutory lien of the first rank under Article 330.
Article 335 Effect of General Statutory
Liens
1 Holders of general statutory liens cannot be paid out of immovable properties
unless they are first paid out of property
other than immovable properties and a
claim that is not satisfied remains.
2 With respect to immovable properties, holders of
general statutory liens must
first be paid out of those that are not the subject matters of special security.
3 If holders of
general statutory liens fail to participate in distributions in
accordance with the provisions of the preceding two paragraphs,
they cannot
exercise their statutory liens against registered third parties with respect to
amounts that would have been paid
to them if they had participated in the
distribution.
4 The provisions of the preceding three paragraphs shall not apply to
cases where
the proceeds of immovable properties are distributed prior to the proceeds of assets
other than immovable properties,
or the proceeds of immovable properties that is
the subject matter of a special security are distributed prior to the proceeds
of
other immovable properties.
Article 336 Perfecton of General Statutory Liens
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General statutory liens may be asserted against obligees without special security,
even if the liens are not registered
with respect to the relevant immovable property;
provided, however, that this shall not apply to registered third parties.
Article
337 Registration of Statutory Liens for Preservation of Immovable
Properties
In order to preserve the effectiveness of statutory
liens for preservation of
immovable properties, registration must be carried out immediately after the
completion of the act of preservation.
Article 338 Registration of Statutory Liens for Construction Work for Immovable
Properties
1 In order to preserve the effectiveness
of statutory liens for construction work for
immovable properties, the budgeted expenses of the construction work must be
registered
prior to the commencement of the same. In such cases, if the expenses
of the construction work exceed the budgeted amount, a statutory
lien shall not
exist with respect to the amount in excess of the same.
2 The amount of increase in value of immovable properties
that resulted from
construction work must be evaluated by an appraiser selected by the court at the
time of the participation
in the distribution.
Article 339 Registered Statutory Liens for Preservation of Immovable Properties or
Construction Work for Immovable
Properties
Statutory liens registered in accordance with the provisions of the preceding two
articles may be exercised prior to
mortgages.
Article 340 Registration of Statutory Liens for Sales of Immovable Properties
In order to preserve the effectiveness
of statutory liens for the sale of immovable
properties, a statement to the effect that the price of the immovable properties or
interest on the same has not been paid must be registered simultaneously with the
execution of the sales contract.
Article 341
Mutatis Mutandis Application of Provisions regarding Mortgages
In addition to the provisions of this Section, the provisions regarding
mortgages
shall apply mutatis mutandis to the effects of statutory liens, to the extent that
application is not inconsistent with
the nature of the same.
Chapter 9 Pledges
Section 1 General Provisions
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Article 342 Content of Pledges
Pledgees shall have the right to possess Thing received from obligors or third
parties
as security for their claims and to have their own claims paid prior to other
obligees out of that Thing.
Article 343 Subject Matter
of Pledges
Pledges cannot be created over a Thing that cannot be assigned to others.
Article 344 Creation of Pledges
The creation
of a pledge shall take effect by delivering the subject matter of the
same to the obligee.
Article 345 Prohibition of Possession
by Pledgors as Agents
A pledgee may not allow a pledgor to possess the Thing pledged on behalf of the
pledgee.
Article 346 Scope
of Secured Claims under Pledges
Pledges shall secure the principal, interest, penalties, expenses of executing the
pledge, expense
of preserving the Thing pledged and the compensation of damage
arising from failure to perform obligations or latent defects in the
Thing pledged;
provided, however, that this shall not apply if the act establishing the pledge
provides otherwise.
Article 347
Retention of the Thing Pledged
Pledgees may retain the Thing pledged until the claims provided for in the
preceding article are
satisfied; provided, however, that this right cannot be asserted
against obligees who have priority over the pledgees.
Article
348 Sub-pledges
Pledgees may sub-pledge the Thing pledged within the duration of their rights,
upon their own responsibility. In
such cases, the pledgees shall be responsible for any
loss arising from the -pledge even if the same is caused by force majeure.
Article 349 Prohibition on Disposition of the Thing Pledged by Contract
Pledgors cannot, either by the acts establishing pledges
or by contracts made prior
to the due dates for performance of their obligations, allow pledgees to acquire
ownership of the Thing
pledged as payment, nor promise to allow pledgees to dispose
of it in any manner other than is prescribed by law.
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Article 350 Mutatis Mutandis Application of Provisions on Rights of Retention and
Statutory
Liens
The provisions of Articles 296 through 300 and those of Article 304 shall apply
mutatis mutandis to pledges.
Article 351
Third Party Pledgors' Rights to Obtain Reimbursement
If persons who created pledges to secure the obligations of others have performed
those obligations or have lost ownership of the Thing pledged due to the execution of
the pledges, they shall have the right to obtain
reimbursement from the obligors in
accordance with the provisions regarding guarantee obligations.
Section 2 Pledges of
Movables
Article 352 Requirements for the Perfection of Pledges of Movables
Pledgees of movables cannot assert their pledges
against third parties unless they
are in continuous possession of the Thing pledged.
Article 353 Recovery of Possession of the
Thing Pledged
Pledgees of movables may, if the pledged Thing is usurped, recover the same solely
by bringing actions for recovery
of possession.
Article 354 Execution of Pledges of Movables
If claims of pledgees of movables are not performed, they may, limited
to cases
where there are reasonable grounds, demand from a court immediate appropriation
of the Thing pledged to the performance
of the claims in accordance with the
evaluation of an appraiser. In such cases, the pledgees of movables must notify the
obligors
in advance of the demand.
Article 355 Order of Priority of Pledges of Movables
If more than one pledge is created with respect
to the same movables, the order of
priority of those pledges shall follow the chronological order of their creation.
Section
3 Pledges of Immovable Properties
Article 356 Use and Profit by Pledgees of Immovable Properties
Pledgees of immovable property
may use and receive the profits from the
immovable property that is the subject matter of a pledge, in accordance with the
method
of its use.
Article 357 Management Expenses Borne by Pledgees of Immovable Properties
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Pledgees of immovable properties shall pay the expenses of management and
otherwise bear burdens in relation to the
immovable properties.
Article 358 Prohibition on Charging of Interest by Pledgees of Immovable
Properties
Pledgees of immovable
properties cannot demand interest on their claims.
Article 359 Cases of Other Provisions in Act of Establishment
The provisions
of the preceding three articles shall not apply in cases where the
acts establishing pledges provide otherwise or execution against
profits derived from
the immovable properties as collateral hereinafter referring to the execution against
profits from secured immovable
properties provided for in Item ii of Article 180 of
the Civil Execution Act Law No. 4 of 1979 has been commenced.
Article 360 Duration of Pledges of Immovable Properties
1 The duration of pledges of immovable properties cannot exceed ten
years. Even
if a longer period is provided for in the act establishing the pledge, the duration of
the same shall be ten years.
2 The creation of pledges may be renewed; provided, however, that the duration of
the same cannot exceed ten years from the
time of the renewal.
Article 361 Mutatis Mutandis Application of Provisions on Mortgages
In addition to the provisions of this
Section, the provisions of the next chapter shall
apply mutatis mutandis to pledges of immovable properties to the extent that
application
is not inconsistent with the nature of the same.
Section 4 Pledges of Rights
Article 362 Subject Matter of Pledges
of Rights
1 Pledges may have property rights for their subject matters.
2 In addition to the provisions of this Section, the
provisions of the preceding three
Sections General Provisions, Pledges of Movables and Pledges of Immovable
properties
shall apply mutatis mutandis to pledges under the preceding
paragraph, to the extent that application is not inconsistent with
the nature of the
same.
Article 363 Creation of Pledges over Claims
When a pledges is to be created over a claim, and the delivery
of an instrument
evidencing it is required for its assignment, the creation of the pledge shall take
effect by the delivery of
such instrument.
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Article 364 Requirements for Perfection of Pledges over Nominative
Claims
If a pledge is created over a nominative claim, that pledge cannot be asserted
against third parties including third party
obligors unless notice of the creation of the
pledge is given to third party obligors in accordance with the provisions of Article
467, or unless the third party obligors acknowledge the same.
Article 365 Requirements for Perfection of Pledges over Debts Payable
to Order
If a pledge is created over debts payable to order, that pledge cannot be asserted
against third parties unless the creation
of the pledge is endorsed on the instrument
of the same.
Article 366 Collection of Claims by Pledgees
1 A pledgee may directly
collect the claim that is the subject matter of the pledge.
2 If monies are the subject matter of a pledged claim, the pledgee
may collect the
same to the extent of the portion that corresponds to the amount of the pledgee s
own claim.
3 If the
due date of the pledged claim under the preceding paragraph arrives prior
to the due date of the claim of the pledgee, the pledgee
may have the third party
obligor deposit that amount to be paid to the pledgee. In such cases, the pledge
shall exist over
the amount so deposited.
4 If the subject matter of the pledged claim is not monies, the pledgee shall have
the pledge over
the Thing received as performance of the obligation.
Article 367
Deleted
Article 368
Deleted
Chapter 10 Mortgages
Section 1 General Provisions
Article 369 Content of Mortgages
1 A Mortgagee shall have the right to receive the performance
of his/her claim
prior to other obligees out of the immovable properties that the obligor or a third
party provided to secure
the obligation without transferring possession.
2 Superficies and emphyteusis can be the subject matter of a mortgage.
In such
cases, the provisions of this Chapter shall apply mutatis mutandis.
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Article 370 Scope of Effect of Mortgages
A mortgage shall extend to the Things that is an integral part of immovable
properties
that is the subject matter of the mortgage hereinafter referred to as
"Mortgaged Immovable Properties" except for
buildings on the mortgaged land;
provided, however, that this shall not apply in cases where the act establishing the
mortgage provides
otherwise or the obligee can rescind the act of the obligor in
accordance with the provisions of Article 424.
Article 371
If
there is a default with respect to a claim secured by a mortgage, the mortgage
shall extend to the fruits of the Mortgaged Immovable
Properties derived after the
default.
Article 372 Mutatis Mutandis Application of Provisions on Right of Retention
The provisions
of Article 296, Article 304 and Article 351 shall apply mutatis
mutandis to mortgages.
Section 2 Effect of Mortgages
Article 373 Order of Priority of Mortgages
If more than one mortgage is created with respect to the same immovable
properties,
the order of priority of those mortgages shall follow the chronological
order of their registration.
Article 374 Changes in Order
of Priority of Mortgages
1 The order of priority of mortgages may be changed with the agreement of all
mortgagees; provided,
however, that, if there are interested persons, the consent of
the same must be obtained.
2 The changes in order under the preceding
paragraph shall not take effect unless
registered.
Article 375 Scope of Secured Claims under Mortgages
1 If mortgagees have
rights to demand periodic payments including interest, they
may exercise their mortgages solely with respect to payments that have
fallen due
in the most recent two years; provided, however, that, if special registration is
effected with respect to prior periodical
payments that have fallen due, the
mortgagees shall not be precluded from exercising their mortgages as from the
time of that
registration.
2 In cases where mortgagees have rights to demand the compensation for damages
- 34 -
resulting from defaults in obligations, the provisions of the preceding paragraph
shall apply mutatis
mutandis to the damages of the most recent two years;
provided, however, that the aggregate period including the interest and other
periodical payments may not exceed two years.
Article 376 Disposition of Mortgages
1 A mortgagee may apply his/her mortgage
to secure other claims, or assign or
waive his/her mortgage, or its order of priority, for the benefit of other obligees of
the
same obligor.
2 In the cases provided for in the preceding paragraph, if a mortgagee disposes of
his/her mortgage for the benefit
of two or more persons, the order of priority of the
rights of persons who receive the benefit of that disposition shall follow
the
chronological order noted in the registration of the mortgage.
Article 377 Requirements for Perfection of Disposition of
Mortgages
1 In the cases in the preceding article, in accordance with the provisions of Article
467, mortgagees cannot assert
the disposition of mortgages against principal
obligors, guarantors, mortgagors or their respective successors unless the
disposition
is notified to the primary obligors or the principal obligors acknowledge
that disposition.
2 If the principal obligors have
received the notice or given acknowledgement
under the provisions of the preceding paragraph, performance effected without the
approval of the persons who receive the benefit of the disposition of mortgages
cannot be asserted against those beneficiaries.
Article 378 Payment of Mortgage Proceeds
If a third party who purchases the ownership or superficies of Mortgaged
Immovable Properties
pay the price of the same to the relevant mortgagee at the
request of the mortgagee, the mortgage shall be extinguished for the benefit
of that
third party.
Article 379 Claims for Extinction of Mortgages
A third party acquirer of Mortgaged Immovable Properties
may make a claim for
the extinction of a mortgage as prescribed in Article 383.
Article 380
No primary obligor, guarantor or
successor of the same may make a claim for the
extinction of a mortgage.
Article 381
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A third party acquirer of Mortgaged Immovable Properties that is subject to a
condition precedent may not make a claim
for the extinction of a mortgage whilst
whether or not the condition precedent is satisfied is still undetermined.
Article 382
Timing of Claims for Extinction of Mortgages
A third party acquirer of Mortgaged Immovable Properties must make a claim for
the
extinction of a mortgage before attachment by auction as a result of the execution
of the mortgage takes effect.
Article 383 Procedures
for Claims for Extinction of Mortgages
If a third party acquirer of Mortgaged Immovable Properties intends to make a
claim for
the extinction of a mortgage, he/she must send the documents listed below
to each registered obligee:
i A document that specifies
the cause and date of the acquisition, the name and
address of the assignor and the acquirer, the nature, location and price
of the
Mortgaged Immovable Properties and burdens of the acquirer;
ii A certificate of registered matters regarding
the Mortgaged Immovable
Properties limited to certificates certifying all registered matters currently in
effect
; and
iii A document to the effect that, if the obligee does not file a petition for auction
by executing the mortgage
within two months, the third party acquirer of the
immovable properties will pay or deposit the price provided for in Item
i or an
amount specifically designated in accordance with the order of priority of claims.
Article 384 Deemed Approval
of Obligees
In the cases listed below, obligees who have received the documents listed in each
item of the preceding article shall
be deemed to have approved the price or amount
that the third party acquirer of Mortgaged Immovable Properties has offered as
stated
in the document listed in Item iii of that article:
i If the obligee does not file a petition for auction by executing
the mortgage
within two months after receipt of the documents listed in each item of the
preceding article;
ii
If the obligee withdraws a petition under the preceding item;
iii If a ruling dismissing a petition under Item i
has become final and binding;
or
iv If a ruling rescinding auction procedures based on a petition under Item i
excluding rulings under the provisions of Paragraph 3 of Article 63 or
Paragraph 3 of Article 68-3 of the Civil Execution
Act applied mutatis mutandis
under Article 188 of the same act, or under the provisions of Paragraph 2 of
Article 183
of the same Act in cases where the certified copy under Item v,
- 36
-
Paragraph 1 of the same article is provided has become final and binding.
Article 385 Notice of Petitions for Auction
If an obligee who has received the documents listed in each item of Article 383 files
a petition under Item i of the preceding
article, he/she must give notice to such
effect to the obligor and assignor of the Mortgaged Immovable Properties within the
period
under that item.
Article 386 Effect of Claims for Extinction of Mortgages
A mortgage shall be extinguished if all registered
obligees approve the price or
amount offered by the third party acquirer of the Mortgaged Immovable Properties ,
and the third party
acquirer of the Mortgaged Immovable Properties has paid or
deposited the price or amount approved.
Article 387 Perfection
of Leases with Registered Consent of Mortgagees
1 If all persons holding mortgages, the registrations of which precede the
registration
of a lease, give their consent, and such consents are registered, the
lease so registered can be asserted against those mortgagees
who gave their
consent.
2 For a mortgagee to give the consent under the preceding paragraph, the
approval of the persons who
hold rights for which the mortgage is the object and
other persons who will suffer detriment as a result of the consent of the
mortgagee
must be obtained.
Article 388 Statutory Superficies
In cases where land and a building on the land belong to the
same owner, if a
mortgage is created with respect to that land or building, and the execution of that
mortgage results in the creation
of different owners, it shall be deemed that a
superficies has been created with respect to that building. In such cases, the
rent
shall be fixed by the court at the request of the parties.
Article 389 Auction of Buildings on Mortgaged Lands
1 If a building
is constructed on mortgaged land after the creation of a mortgage,
the mortgagee may auction the building together with the land;
provided, however,
that his/her right of priority may be exercised solely against the proceeds of the
land.
2 The provisions
of the preceding paragraph shall not apply in cases where the
owner of that building has rights with respect to the possession
of the mortgaged
land that can be asserted against the mortgagee.
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Article
390 Purchases of Mortgaged Immovable Properties by Third Party
Acquirers
A third party acquirer of Mortgaged Immovable Properties
may be the purchaser
at the auction of the same.
Article 391 Claims for Reimbursement of Expenses by Third Party Acquirers of
Mortgaged Immovable Properties
If a third party acquirer of Mortgaged Immovable Properties has incurred
necessary or beneficial
expenses with respect to the Mortgaged Immovable
Properties, he/she shall be entitled to obtain reimbursement of the same out of
the
proceeds of the Mortgaged Immovable Properties prior to other obligees, in
accordance with the distinctions in Article 196.
Article 392 Distribution of Proceeds in cases of Joint Mortgage
1 In cases where an obligee holds mortgages on several immovable
properties to
secure the same claim, if the proceeds of those immovable properties are to be
distributed simultaneously, the
obligee shall divide the burden of the claim in
proportion to the value of each immovable property.
2 In cases where an obligee
holds mortgages on several immovable properties to
secure the same claim, if the proceeds from a particular immovable property
alone
are to be distributed, the mortgagee may receive the payment of his/her entire
claim out of those proceeds. In such cases,
subordinated mortgagees may exercise
their mortgages in subrogation of that mortgagee, up to the amount that that
mortgagee who
receives payment would otherwise be entitled to receive from the
proceeds of other immovable properties, in accordance with the
provisions of the
preceding paragraph.
Article 393 Note in Registration of Subrogation in case of Joint Mortgages
A person
who exercises a mortgage by way of subrogation under the provisions of
the second sentence of Paragraph 2 of the preceding article
may note his/her
subrogation in the registration of that mortgage.
Article 394 Payment from Assets other than Mortgaged Immovable
Properties
1 A mortgagee may receive payment from assets other than the Mortgaged
Immovable Properties, limited to the extent
of the portion of his/her claim not paid
from the proceeds of that Mortgaged Immovable Properties.
2 The provisions of the preceding
paragraph shall not apply to cases where the
proceeds of other assets are to be distributed prior to the proceeds of the
Mortgaged
Immovable Properties. In such cases, each other obligee may demand
that the amount to be distributed to the mortgagee be deposited
in order to have
- 38 -
the mortgagee receive payment under the provisions of that
paragraph.
Article 395 Suspension of Delivery by Users of Mortgaged Buildings
1 Any person who uses or receives profits
from a building subject to a mortgage by
virture of a lease that cannot be asserted against the mortgagee, and who is listed
as follows in the following paragraph referred to as "Mortgaged Building User"
shall not be required to deliver that building to
the purchaser thereof until six
months have elapsed from the time when the purchaser purchased that building at
auction:
i A person who has been using or receiving profits from the building since prior
to the commencement of auction procedures;
or
ii A person who is using or receiving profits from the building by virtue of a
lease given after the commencement
of auction procedures by the administrator
of compulsory administration or execution against profits from secured
immovable properties.
2 The provisions of the preceding paragraph shall not apply in cases where the
purchaser issues
a notice to the Mortgaged Building User demanding payment of
consideration for a period of one month or more with respect to the
use of the
building in that paragraph that has occurred after the time of purchase by the
purchaser, establishing a reasonable
period, and no payment is made within that
reasonable period.
Section 3 Extinction of Mortgages
Article 396 Extinctive
Prescription of Mortgages
No mortgage shall be extinguished by prescription in relation to obligors and
mortgagors unless it is
extinguished simultaneously with the claim the mortgage
secures.
Article 397 Extinction of Mortgages by Acquisition by Prescription
of Mortgaged
Immovable Properties
If a person who is neither an obligor nor a mortgagor has possessed the Mortgaged
Immovable Properties
in complete conformity with the requirements for acquisitive
prescription, the mortgage shall be extinguished thereby.
Article
398 Renouncement of Mortgaged Superficies
Even if a holder of superficies or a emphyteuta who created mortgage on his/her
superficies
or emphyteusis renounces his/her rights, the renouncement cannot be
asserted against the mortgagee.
- 39 -
Section 4 Revolving Mortgages
Article 398-2 Revolving Mortgages
1 Mortgages may
be created, by an establishing act, in order to secure unspecified
claims of a certain scope, up to the limit of a maximum amount.
2 The scope of the unspecified claims to be secured by the mortgage under the
provisions of the preceding paragraph
hereinafter referred to as "Revolving
Mortgage" must be prescribed by limiting the scope to claims arising
from specific
contracts with the obligor for continuous transactions or other claims arising from
certain kinds of transactions
with the obligor.
3 Claims that accrue continuously with the obligor pursuant to a specific cause, or
claims on negotiable
instruments or checks may be treated as claims that are to be
secured by a Revolving Mortgage, notwithstanding the provisions of
the preceding
paragraph.
Article 398-3 Scope of Secured Claims under Revolving Mortgages
1 A revolving mortgagee may exercise
his/her Revolving Mortgage up to the
maximum amount with respect to all fixed payments of principal as well as
periodical payments
including interest and compensation for damages resulting
from failure to perform obligations.
2 In cases where a claim
on a negotiable instrument or check acquired by way of
causes other than the transactions with the obligor is treated as a claim
to be
secured by a Revolving Mortgage, if any of the following grounds exist, such
Revolving Mortgage may be exercised only with
respect to claims acquired before
such grounds arose; provided, however, that even with respect to claims acquired
after such
grounds arose, the exercise of the Revolving Mortgage shall not be
precluded as far as the claims were acquired without knowledge
of those grounds:
i The suspension of payments by the obligor;
ii A petition for the commencement
of bankruptcy procedures, the
commencement of rehabilitation procedures, the commencement
of
reorganization procedures or the commencement for special liquidation with
respect to the obligor; or
iii A petition for auction in relation to Mortgaged Immovable Properties or
attachment for delinquent taxes.
Article 398-4 Alterations in Scope of Secured Claims under Revolving Mortgages
and of Obligors
1 The scope of the
claims to be secured by a Revolving Mortgage may be altered if
the alteration is effected before the principal is fixed.
The same shall likewise
apply with respect to alterations of obligors.
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2 In order to effect the alterations under the preceding paragraph, it is not
required that the approval of third
parties including subordinated obligees be
obtained.
3 If the alteration under Paragraph 1 is not registered before the principal
is fixed,
it shall be deemed that such alteration was not effected.
Article 398-5 Alterations in Maximum Amounts of Revolving
Mortgages
Alterations in the maximum amount of a Revolving Mortgage cannot be made
unless the approval of the interested parties
is obtained.
Article 398-6 Provision of Date for Fixing Principal of Revolving Mortgage
1 With respect to the principal secured
by a Revolving Mortgage, the date when
the principal is to be fixed may be prescribed or changed.
2 The provisions of Paragraph
2 of Article 398-4 shall apply mutatis mutandis to
the cases under the preceding paragraph.
3 The date under Paragraph 1 must
be within five years of the day when the date
was prescribed or changed.
4 If registration with respect to an alteration in
the date under Paragraph 1 is not
effected before the old date, the principal secured shall be fixed on that old date.
Article
398-7 Assignments of Secured Claims under Revolving Mortgages
1 A person who acquires a claim from a revolving mortgagee before
the principal is
fixed may not exercise the Revolving Mortgage with respect to such claim. The
same shall likewise apply
to a person who made payment for or on behalf of an
obligor before the principal was fixed.
2 If an obligation is assumed before
the principal is fixed, the revolving mortgagee
may not exercise his/her Revolving Mortgage with respect to the obligation of the
person who assumes the obligation.
3 If any novation due to a change of obligee or obligor is effected before the
principal
is fixed, the parties may not transfer the Revolving Mortgage to the
obligations after the novation, notwithstanding the provisions
of Article 518.
Article 398-8 Inheritances of Revolving Mortgagees or Obligors
1 If an inheritance of a revolving mortgagee
commences before the principal is
fixed, the Revolving Mortgage shall secure the claims that exist at the time of the
commencement
of the inheritance and shall otherwise secure claims the heir
prescribed by agreement between the heirs and the revolving mortgagor
acquires
after the commencement of the inheritance.
2 If an inheritance of an obligor commences before the principal is fixed,
the
Revolving Mortgage shall secure the obligations that exist at the time of the
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commencement of the inheritance and shall otherwise secure the claims that the
heir prescribed by agreement between
the revolving mortgagee and the revolving
mortgagor assumes after the commencement of the inheritance.
3 The provisions of Paragraph
2 of Article 398-4 shall apply mutatis mutandis to
cases where an agreement is made under the preceding two paragraphs.
4 If
the agreements under Paragraph 1 and Paragraph 2 are not registered within
six months of the commencement of the inheritance, principal
secured shall be
deemed to have been fixed at the time of the commencement of the inheritance.
Article 398-9 Mergers of Revolving
Mortgagees or Obligors
1 If there is a merger with respect to a revolving mortgagee before the principal is
fixed for that revolving
mortgagee, the Revolving Mortgage shall secure the claims
that exist at the time of the merger and shall otherwise secure claims
that a
juridical person that survives the merger or a juridical person that is incorporated
by the merger acquires after the
merger.
2 If there is a merger with respect to an obligor before the principal is fixed for
that obligor, the Revolving Mortgage
shall secure the obligations that exist at the
time of the merger and shall otherwise secure the obligations that a juridical
person that survives the merger or a juridical person that is incorporated by the
merger assumes after the merger.
3 In the
cases provided for in the preceding two paragraphs, the revolving
mortgagor may demand that the principal secured be fixed; provided,
however, that
this shall not apply, in the cases provided for in the preceding paragraph, if the
relevant obligor is the revolving
mortgagor.
4 If a demand is made in accordance with the provisions of the preceding
paragraph, the principal secured shall be
deemed to have been fixed at the time of
the merger.
5 The demand under the provisions of Paragraph 3 may not be made if two
weeks
have elapsed since the day when the revolving mortgagor acquired knowledge of
the merger. The same shall apply if one month
has elapsed from the day of the
merger.
Article 398-10 Company Splits of Revolving Mortgagees or Obligors
1 If, before the
principal is fixed, a split in which the relevant revolving mortgagee
is the company to be split is effected, the Revolving Mortgage
shall secure the
claims that exist at the time of the split and shall otherwise secure claims acquired
after the split by the
split company and the company incorporated by the split, or
claims acquired after the split by the company that succeeded to some
or all of the
rights and obligations of the split company regarding its business.
2 If, before the principal is fixed, a split
in which the relevant obligor is the
- 42 -
company to be split is effected, the
Revolving Mortgage shall secure the obligations
that exist at the time of the split and shall otherwise secure obligations that
are
assumed after the split by the split company and the company incorporated by the
split, or claims acquired after the split
by the company that assumed some or all of
the rights and obligations of the split company regarding its business.
3 The provisions
of Paragraphs 3 through 5 of the preceding article shall apply
mutatis mutandis to cases under the preceding two paragraphs.
Article 398-11 Disposition of Revolving Mortgages
1 Before the principal is fixed, a revolving mortgagee cannot dispose of a Revolving
Mortgage under the provisions of Paragraph 1 of Article 376; provided, however,
that he/she shall not be precluded from applying
that Revolving Mortgage to secure
other claims.
2 The provisions of Paragraph 2 of Article 377 shall not apply to payments made
before the principal is fixed in the cases provided for in the proviso to the
preceding paragraph.
Article 398-12 Assignments
of Revolving Mortgages
1 Before the principal is fixed, a revolving mortgagee may assign a Revolving
Mortgage, with the approval
of the revolving mortgagor.
2 A revolving mortgagee may divide his/her Revolving Mortgage into two
Revolving Mortgages and assign
either of the same in accordance with the
provisions of the preceding paragraph. In such cases, the rights for which that
Revolving Mortgage is the subject matter shall be extinguished with respect to the
Revolving Mortgage that was assigned.
3
In order to effect an assignment under the provisions of the preceding
paragraph, the approval of the person who holds the rights
for which that
Revolving Mortgage is the subject matter must be obtained.
Article 398-13 Partial Assignments of Revolving Mortgages
Before the principal is fixed, a revolving mortgagee may, with the approval of the
revolving mortgagor, effect a partial assignment
of the Revolving Mortgage
hereinafter in this Section referring to assignments of Revolving Mortgages that the
assignor effects
without dividing the Revolving Mortgage in order to co-own the same
with the assignee .
Article 398-14 Co-ownership of Revolving
Mortgages
1 Co-owners of a Revolving Mortgage shall be paid in proportion to the amount of
their respective claims; provided,
however, that, if before the principal is fixed, a
proportion other than the above is agreed, or if it is agreed that a certain
person
- 43 -
should be paid prior to the others, that agreement shall prevail.
2 A co-owner in a Revolving Mortgage may, with the consent of the other
co-owners, assign rights of the same in accordance with
the provisions of
Paragraph 1 of Article 398-12.
Article 398-15 Assignments or Waivers of Order of Priority of Mortgages and
Assignments or Partial Assignments of Revolving Mortgages
If a revolving mortgagee who has accepted an assignment or waiver of
the order of
priority of a mortgage has assigned or partially assigned his/her Revolving Mortgage,
the assignee shall receive the
benefit of the assignment or waiver of that order of
priority.
Article 398-16 Joint Revolving Mortgages
The provisions of Articles
392 and 393 shall apply with respect to Revolving
Mortgages, limited to cases where, simultaneously with the establishment of the
same, it is registered that a Revolving Mortgage has been established on several
immovable properties to secure the same claim.
Article 398-17 Alterations of Joint Revolving Mortgages
1 An alteration in the scope, obligors or maximum amount of the claims to be
secured, or assignment or partial assignment of the Revolving Mortgages for which
registration is effected in accordance with
the preceding article shall not take effect
unless registration is effected with respect to all immovable properties over which
that Revolving Mortgages are established.
2 The principal that is to be secured by the Revolving Mortgages for which the
registration under the preceding article is effected shall be fixed even where
grounds that would fix the same with respect to
one immovable property alone
arise.
Article 398-18 Aggregate Revolving Mortgages
A person who has Revolving Mortgages on several
immovable properties may
exercise his/her right of priority with respect to the proceeds of each immovable
property up to the respective
maximum amounts, except for cases provided for in
Article 398-16.
Article 398-19 Requests for Fixing of Principal of Revolving
Mortgages
1 If three years have elapsed from the time of the creation of a Revolving
Mortgage, the revolving mortgagor may
request the fixing of the principal secured.
In such cases, the principal secured shall be fixed when two weeks have elapsed
since the time of that request.
- 44 -
2 A revolving mortgagee may request
the fixing of the principal secured at any
time. In such cases, the principal secured shall be fixed on the request of the
same.
3 The provisions of the preceding two paragraphs shall not apply in cases where
the date on which the principal
secured is to be fixed is prescribed.
Article 398-20 Grounds for Fixing of Principal of Revolving Mortgages
1 The principal
secured by a Revolving Mortgage shall be fixed in the following
cases:
i If the revolving mortgagee has filed, with respect
to the Mortgaged Immovable
Properties, a petition for auction or execution against profits from secured
immovable
properties or the attachment under the provisions of Article 304 cited
in Article 372; provided, however, that this provision
shall apply only in cases
where the commencement of either auction procedures or execution procedures
against secured
immovable properties to realize profits, or an attachment has
been effected;
ii If the revolving mortgagee has effected
an attachment for delinquent taxes
against the Mortgaged Immovable Properties;
iii If two weeks have elapsed from
the time when the revolving mortgagee
acquired knowledge of the commencement of auction procedures or attachment
for delinquent taxes against the Mortgaged Immovable Properties; or
iv If the obligor or revolving mortgagor has become
subject to a ruling for the
commencement of bankruptcy procedures.
2 If the effect of the commencement of auction
procedures, the attachment under
Item iii of the preceding paragraph or the ruling to commence bankruptcy
procedures
under Item iv of that paragraph has been extinguished, it shall be
deemed that the principal secured was not fixed;
provided, however, that this shall
not apply if any person has acquired that Revolving Mortgage or a right for which
the Revolving
Mortgage is the subject matter on the assumption that the principal
was fixed.
Article 398-21 Requests for Reductions
in Maximum Amount of Revolving
Mortgages
1 After the principal is fixed, the revolving mortgagor may request a reduction in
the maximum amount of that Revolving Mortgage, to the amount of the obligations
actually in existence plus the amount of the
periodical payments including interest
and the amount of damages due to default in obligations that will arise in the
following
two years.
2 As to reductions in the maximum amount of Revolving Mortgages for which
registration under Article 398-16 has
been effected, the request under the
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preceding paragraph shall be sufficient
if made with respect to one of those
immovable properties.
Article 398-22 Requests for Extinction of Revolving Mortgages
1
If the amount of the obligations actually in existence after the principal is fixed
exceeds the maximum amount of the Revolving
Mortgage, a person who created
his/her Revolving Mortgage to secure obligations of others or a third party who
acquired ownership,
superficies, emphyteusis or a lease that can be asserted
against any third party with respect to the Mortgaged Immovable Properties,
may
request the extinction of that Revolving Mortgage by tendering or depositing an
amount equivalent to that maximum amount.
In such cases, that tender or
deposit shall have the effect of payment.
2 Revolving Mortgages for which registrations
are effected under Article 398-16
shall be extinguished if the request for extinction in accordance with the preceding
paragraph
is made with respect to one immovable property.
3 The provisions of Articles 380 and 381 shall apply mutatis mutandis to the
requests for extinction under Paragraph 1.
Chapter 2 Contracts
Section 1 General Provisions
Subsection
1 Formation of Contracts
Article 521 Offers that Specify Period for Acceptance
1 An offer which specifies a period for acceptance
may not be revoked.
2 If an offeror does not receive notice of acceptance of the offer set forth in the
preceding paragraph
within the period referred to in the same paragraph, the offer
shall cease to be effective.
Article 522 Late Arrival of Notices
of Acceptance
1 Even in cases where the notice of acceptance of the offer under Paragraph 1 of
the preceding Article arrives
after the lapse of the period referred to in the same
paragraph, if the offeror is in a position to know that the notice was dispatched
at
a time which, under normal circumstances, would have allowed the notice to arrive
within that period, the offeror must dispatch
a notice of late arrival to the other
party without delay; provided, however, that this shall not apply when the offeror
dispatches
the notice of delay before the arrival of the notice of acceptance.
2 When the offeror fails to give the notice of late arrival
referred to in the main
clause of the preceding paragraph, the notice of acceptance shall be deemed to have
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arrived within the period referred to in Paragraph 1 of the preceding Article.
Article 523
Effect of Delayed Acceptance
The offeror may deem a delayed acceptance to be a new offer.
Article 524 Offers that do not Specify
Period for Acceptance
An offer made to a person at a distance without specifying a period for acceptance
may not be revoked until
the lapse of a reasonable period for the offeror to receive a
notice of acceptance.
Article 525 Offeror's Death or Loss of Capacity
to Act
The provisions of Paragraph 2 of Article 97 shall not apply where the offeror
expresses his/her intention to the contrary,
or the other party has come to know the
fact of the offeror's death or loss of capacity to act.
Article 526 Time of Formation of
Contract between Persons at Distance
1 A contract between persons at a distance shall be formed upon dispatch of the
notice
of acceptance.
2 In cases where no notice of acceptance is required due to the offeror's
manifestation of intention or usage
of trade, the contract shall be formed upon the
occurrence of any fact which ought to be regarded as a manifestation of intention
of
acceptance.
Article 527 Late Arrival of Notices of Revocation of Offer
1 Even if a notice to revoke an offer arrives after
the dispatch of the acceptance
notice, if the offeree is in a position to know that the notice was dispatched at a
time which,
under normal circumstances would have allowed the notice to arrive
before the dispatch of the acceptance notice, the offeree must
dispatch a notice of
the late arrival to the offeror without delay.
2 If the offeree fails to give the notice of late arrival
referred to in the preceding
paragraph, it shall be deemed that no contract was formed.
Article 528 Acceptances which Modify
Offer
If the offeree has accepted the offer by adding any condition or by making any
other modification, it shall be deemed that
the offeree has refused the offer and has
made a new offer.
Article 529 Advertisements Offering Prizes
A person who places an
advertisement to the effect that any person who performs a
defined act will be given a set reward hereinafter in this Subsection
referred to as
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an "advertiser offering prizes" shall be obligated to give
the reward to the person
who has performed the act.
Article 530 Revocation of Advertisements Offering Prizes
1 In the case set
forth in the preceding Article, the advertiser offering prizes may
revoke its advertisement using a method identical to that used
for the above
advertisement whilst no person has completed the designated act; provided,
however, that this shall not apply when
a statement to the effect that the offer will
not be revoked was made in the advertisement.
2 Where revocation may not be carried
out by the method provided in the main
clause of the preceding paragraph, the revocation may be carried out by another
method.
In such cases, the revocation shall only be effective against persons with
knowledge of the revocation.
3 If the advertiser
offering prizes specifies the period during which the designated
act must be performed, it shall be presumed that the advertiser
has waived its
right to revoke.
Article 531 Right to Receive Rewards in Advertisements Offering Prizes
1 If more than one
person has performed the act designated in the advertisement,
only the person who performed the act first shall be entitled to
receive the reward.
2 Where two or more persons have performed the act set forth in the preceding
paragraph simultaneously,
each shall be entitled to receive an equal share of the
reward; provided, however, that the person entitled to the reward shall
be selected
by lot if the reward is by nature indivisible, or the advertisement provides that
only one person is entitled to
receive the reward.
3 The provisions of the preceding two paragraphs shall not apply if the
advertisement expresses any intention
to the contrary.
Article 532 Advertisement Offering Prizes to Most Outstanding Applicant
1 If, in cases where two or more persons
have performed the act designated in the
advertisement, the reward is to be given only to the most outstanding applicant,
the
advertisement shall be effective only if it specifies the application period.
2 In the cases of the preceding paragraph, the most
outstanding applicant shall be
judged by the person specified in the advertisement and if no such person is
specified in the
advertisement, by the person who places the advertisement.
3 Applicants may not raise any objection to the judge's decision referred
to in the
preceding paragraph.
4 The provision of the second paragraph of the preceding Article shall apply
mutatis mutandis
to cases where the acts of two or more persons are judged to be
equal.
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Subsection 2 Effect of Contracts
Article 533 Defense for Simultaneous Performance
A party to a bilateral contract
may refuse to perform his/her own obligation until
the other party tenders the performance of his/her obligation; provided, however,
that
this shall not apply if the obligation of the other party is not yet due.
Article 534 Obligees to Assume Risk
1 In cases
where the purpose of a bilateral contract is the creation or transfer of
real rights regarding specified things, if the things
have been lost or damaged due
to reasons not attributable to the obligor, such loss or damage shall fall on the
obligee.
2
The provisions of the preceding paragraph shall apply to any contract regarding
unspecified things from the time when the things
have been identified in
accordance with the provisions of Paragraph 2 of Article 401.
Article 535 Assumption of Risk in Bilateral
Contract with Condition Precedent
1 The provisions of the preceding Article shall not apply where the subject matter
of a bilateral
contract with conditions precedent is lost whilst the conditions are
pending.
2 If the subject matter of a bilateral contract
with conditions precedent has been
lost or damaged due to reasons not attributable to the obligor, the loss or damage
shall fall
on obligee.
3 In cases where the subject matter of a bilateral contract with conditions
precedent has been lost or damaged due
to reasons attributable to the obligor, if
the condition has been satisfied, the obligee may, at his/her choice, demand
performance
or exercise the obligee's right to cancel. In such cases, claims for
damages shall not be precluded.
Article 536 Obligors'
Assumption of Risk
1 Except in the cases provided for in the preceding two Articles, if the performance
of any obligation has
become impossible due to reasons not attributable to either
party, the obligor shall not have the right to receive performance
in return.
2 If the performance of any obligation has become impossible due to reasons
attributable to the obligee, the obligor
shall not lose his/her right to receive
performance in return. In such cases, if the obligor gains any benefit as a result of
being released from his/her own obligation, the obligor must reimburse the obligee
for the benefit.
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Article 537 Contracts for the Benefit of Third Parties
1 If one of the parties promises in a contract
that he/she will tender a certain
performance to any third party, the third party shall have the right to claim that
performance
directly from the obligor.
2 In the cases set forth in the preceding paragraph, rights of the third party shall
accrue when
the third party has expressed his/her intention to the obligor to enjoy
the benefit of the contract under that paragraph.
Article
538 Determination of Rights of the Third Party
After rights of the third party have come into existence in accordance with the
provisions of the preceding Article, the parties may not modify or extinguish those
rights.
Article 539 Obligors' Defense
The
obligor may raise the defense founded on the contract referred to in Paragraph
1 of Article 537 against a third party who is to enjoy
the benefit of the contract.
Subsection 3 Cancellation of Contracts
Article 540 Exercise of Right to Cancel
1
If one of the parties has a right to cancel in accordance with the provisions of the
contract or law, the cancellation shall be
effected by manifestation of intention to
the other party.
2 The manifestation of intention under the preceding paragraph may
not be
revoked.
Article 541 Right to Cancel for Delayed Performance
In cases where one of the parties does not perform his/her
obligations, if the other
party demands performance of the obligations, specifying a reasonable period and no
performance is tendered
during that period, the other party may cancel the contract.
Article 542 Right to Cancel for Delayed Performance where Time is
of the Essence
In cases where, due to the nature of the contract or a manifestation of intention by
the parties, the purpose of
the contract cannot be achieved unless the performance is
carried out at a specific time and date or within a certain period of time,
if one of the
parties has failed to perform at the time that period lapses, the other party may
immediately cancel the contract without
making the demand referred to in the
preceding Article.
Article 543 Right to Cancel for Impossibility of Performance
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If performance has become impossible, in whole or in part, the obligee may cancel
the contract; provided, however, that this shall not apply if the failure to perform the
obligation is due to reasons not attributable
to the obligor.
Article 544 Indivisible Nature of Right to Cancel
1 If one party is constituted of two or more persons, the
cancellation of the
contract may be effected only by, or against, all of those persons.
2 In the case set forth in the preceding
paragraph, if the right to cancel is
extinguished with respect to one of the persons who constitute a party, it shall also
be
extinguished with respect to the other persons.
Article 545 Effect of Cancellation
1 If one of the parties exercises his/her
right to cancel, each party shall assume an
obligation to restore the other party to that other party's original position;
provided,
however, that this shall not prejudice the rights of a third party.
2 In the case set forth in the main clause of the preceding
paragraph, if any
monies are to be refunded, interest must accrue from the time of the receipt of
those monies.
3 The exercise
of the right to cancel shall not preclude claims for damages.
Article 546 Cancellation of Contract and Simultaneous Performance
The provisions of Article 533 shall apply mutatis mutandis to the preceding Article.
Article 547 Extinguishment of Right to Cancel
by Demand
If no period is provided for the exercise of the right to cancel, the other party may
issue a notice of demand to the
holder of the right to cancel, specifying a reasonable
period, to the effect that the holder of the right to cancel is to give a
definite answer
as to whether or not the right will be exercised within that period. In such cases, if
no notice of cancellation
is received within that period, the right to cancel shall be
extinguished.
Article 548 Extinguishment of Right to Cancel by Acts
of Holder of Right to Cancel
1 The right to cancel shall be extinguished if the holder of the right to cancel has
significantly
damaged, or has become unable to return, the subject matter of the
contract due to his/her act or negligence, or has converted
the subject matter into
any other kind of thing by processing or alteration.
2 The right to cancel shall not be extinguished
if the subject matter of the contract
has been lost or damaged due to reasons not attributable to any act or negligence
of the
holder of the right to cancel.
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Section 2 Gifts
Article 549 Gifts
Gifts shall become effective by the manifestation by one of the parties of his/her
intention to give his/her property to the other
party gratuitously, and the acceptance
of the other party thereof.
Article 550 Revocation of Gift Not in Writing
Gifts not in
writing may be revoked by either party; provided, however, that this
shall not apply to any portion of the gift for which performance
has been completed.
Article 551 Warranty by Donor
1 The donor shall not be liable for any defect in or absence of the thing
or right
that is the subject matter of the gift; provided, however, that this shall not apply if
the donor has knowledge of the
defect or absence and fails to inform the donee
thereof.
2 With respect to encumbered gifts, the donor shall assume a warranty
identical to
that borne by the seller, to the extent of that encumbrance.
Article 552 Periodic Gifts
Periodic gifts shall lose
its effect on the death of the donor or the donee.
Article 553 Encumbered Gifts
With respect to gifts with burden, in addition
to the provisions of this Section, the
provisions regarding bilateral contracts shall apply mutatis mutandis, to the extent
those
provisions are not inconsistent with the nature of gifts with burden.
Article 554 Gifts on Donor's Death
With respect to gifts
that become effective on the death of the donor, the provisions
regarding testamentary gifts shall apply mutatis mutandis, to the
extent they are not
inconsistent with the nature of gifts that become effective on the death of the donor.
Section 3 Sale
Subsection 1 General Provisions
Article 555 Sale
A sale shall become effective when one of the parties promises
to transfer a certain
real rights to the other party and the other party promises to pay the purchase
money for it.
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Article 556 Pre-contract of Sales Exercisable by One Party
1 A pre-contract to sell or
purchase made by one party shall take the effect of a
sale when the other party has manifested his/her intention to complete such
sale.
2 If no period is provided in relation to the manifestation of intention set forth in
the preceding paragraph, the other
party to the pre-contact may issue a notice of
demand to the other party, specifying a reasonable period, to the effect that the
other party is to give a definite answer as to whether or not he/she will complete
the sale within that period. In such cases,
if the other party fails to give a definite
answer within that period, the pre-contract of sale by one party shall lose its effect.
Article 557 Earnest Money
1 When the buyer delivers earnest money to the seller, the buyer may cancel the
contract by forfeiting
his/her earnest money or the seller may cancel the contract
by reimbursing twice its amount, until either party commences performance
of the
contract.
2 The provisions of Paragraph 3 of Article 545 shall not apply to cases set forth in
the preceding paragraph.
Article 558 Expenses of Contracts for Sale
The expenses of contracts for sale shall be borne equally by both parties.
Article
559 Mutatis Mutandis Application to Contracts for Value
The provisions of this Section shall apply mutatis mutandis to contracts
for value
other than contracts for sale; provided, however that this shall not apply when it is
not permitted by the nature of the
contract for value.
Subsection 2 Effect of Sale
Article 560 Seller's Obligation when Selling Rights of Others
If the subject matter of the sale is the rights of others, the seller shall assume an
obligation to acquire the rights and transfer
the same to the buyer.
Article 561 Seller's Warranty when Selling Rights of Others
In the cases set forth in the preceding Article,
if the seller cannot acquire and
transfer to the buyer the rights the seller has sold, the buyer may cancel the
contract. In such
cases, if the buyer knew, at the time of the contract, that the rights
did not belong to the seller, the buyer may not demand compensation
for damages.
Article 562 Innocent Seller's Right of Cancellation in a Sale of Others' Rights
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1 In cases where the seller, at the moment of the contract, does not know that the
rights the seller has
sold do not belong to him/her, if the seller cannot acquire the
rights and transfer the same to the buyer, the seller may cancel
the contract by
compensating any damages.
2 In the cases set forth in the preceding paragraph, if the buyer, at the moment of
the contract, knows that the rights the buyer has bought do not belong to the
seller, the seller may cancel the contract by simply
notifying the buyer to the effect
that the seller cannot transfer the rights sold.
Article 563 Seller's Warranty where Rights
Partially Belonged to Others
1 If the seller cannot transfer any part of the rights which are the subject matter
of the sale
because the part of the rights belongs to others, the seller may demand
a reduction of the purchase money in proportion to the
value of the part in
shortage.
2 In the cases set forth in the preceding paragraph, a buyer in good faith may
cancel the
contract if the buyer would not have bought the rights if the rights
consisted only of the remaining portion.
3 A demand for
the reduction in the purchase money or cancellation of the
contract shall not preclude a buyer in good faith from making a claim
for damages.
Article 564
The rights under the preceding Article must be exercised within one year from the
time when the buyer
knew the facts if the buyer was in good faith, or within one year
from the time of the contract if the buyer had knowledge, as the
case may be.
Article 565 Seller's Warranty in Cases of Shortage in Quantity or Partial Loss of
Object
The provisions of the
preceding two Articles shall apply mutatis mutandis in cases
where there is any shortage in the object of a sale made for a designated
quantity, or
in cases where part of the object was already lost at the time of the contract, if the
buyer did not know of the shortage
or loss.
Article 566 Seller's Warranty in cases of Superficies or Other Rights
1 In cases where the subject matter of the sale
is encumbered with for the purpose
of a superficies, an emphyteusis, an easement, a right of retention or a pledge, if
the buyer
does not know the same and cannot achieve the purpose of the contract
on account thereof, the buyer may cancel the contract. In
such cases, if the contract
cannot be cancelled, the buyer may only demand compensation for damages.
2 The provisions of the
preceding paragraph shall apply mutatis mutandis in cases
where an easement that was referred to as being in existence for the
benefit of
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immovable property that is the subject matter of a sale, does not
exist, and in cases
where a leasehold is registered with respect to the immovable property.
3 In the cases set forth in the
preceding two paragraphs, the cancellation of the
contract or claim for damages must be made within one year from the time when
the buyer comes to know the facts.
Article 567 Seller's Warranty in cases of Mortgage or Other Rights
1 If the buyer loses
his/her ownership of immovable property that is the object of a
sale because of the exercise of an existing statutory lien or mortgage,
the buyer
may cancel the contract.
2 If the buyer preserves his/her ownership by incurring expenditure for costs,
he/she may
claim reimbursement of those costs from the seller.
3 In the cases set forth in the preceding two paragraphs, the buyer may claim
compensation if he/she suffered loss.
Article 568 Warranty in cases of Compulsory Auctions
1 The successful bidder at compulsory
auction may cancel the contract or demand
a reduction from the purchase money against the obligor in accordance with the
provisions
from Article 561 through to the preceding Article.
2 In the cases set forth in the preceding paragraph, if the obligor is insolvent,
the
successful bidder may demand total or partial reimbursement of the proceeds
against the obligees who received the distribution
of the proceeds.
3 In the cases set forth in the preceding two paragraphs, if obligors knew of the
absence of the object or
right and did not disclose the same, or if obligors knew of
the absence but demanded an auction, the successful bidder may demand
compensation for damages against those persons.
Article 569 Seller's Warranty for Claims
1 If the seller of a claim warrants
the solvency of the obligor, it shall be presumed
that the seller warranted the solvency as at the time of the contract.
2 If
the seller of a claim which is not due yet warrants the future solvency of the
obligor, it shall be presumed that he/she warranted
the solvency as at the due date.
Article 570 Seller's Warranty against Defects
If there is any latent defect in the subject matter
of a sale, the provisions of Article
566 shall apply mutatis mutandis; provided, however, that this shall not apply in
cases of compulsory
auction.
Article 571 Seller's Warranty and Simultaneous Performance
The provisions of Article 533 shall apply mutatis mutandis
to the cases set forth
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from Article 563 through to Article 566 and in the preceding
Article.
Article 572 Special Agreement Disclaiming Warranty
Even if the seller makes a special agreement to the effect that the
seller will not
provide the warranties set forth from Article 560 through to the preceding Article,
the seller may not be released
from that responsibility with respect to any fact that
the seller knew but did not disclose, and with respect to any right that the
seller
himself/herself created for or assigned to a third party.
Article 573 Due Date for Payment of Purchase money
If there
is a due date for the delivery of the subject matter of the sale, it shall be
presumed that the same due date was also agreed for
the payment of the purchase
money.
Article 574 Place of Payment of Purchase money
If the purchase money is to be paid simultaneously
with delivery of the subject
matter of the sale, the payment must be made at the place of delivery.
Article 575 Ownership in Fruit
and Payment of Interest on Purchase money
1 If any subject matter of a sale that is not delivered yet bea