Civil Code Book I General Principles

Draft Proposal Book I. Chapter 5-7

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♦ The English version of the Draft Proposals of the Reform Commission below was translated by Mina Shibahara (International Communications Advisor, INC Office) and edited by Kyoko Ishida (Assistant Professor, Waseda University).

♦ The square brackets with an alphabet such as 【1.5.A】 propose policy for deliberation. ♦ Although current Civil Code composes of five books, the Commission proposes revision

of articles that relate to the Law of Obligations only. Therefore, the proposals cover a part of Book I (General Principles) and Book III (Obligations) only.

Civil Code Book I General Principles

Chapter 5 Juridical acts 【1.5.A】(Juridical act)

The Commission proposes as follows. (1) The concept of a “juridical act” shall be maintained. (2) There will be no specific provisions corresponding to a definition provision or a

classification provision with respect to a juridical act. (3) When prescribing provisions on a “juridical act”, the division of sections in the present

Civil Code establishing Division 1 “General Provisions” and Division 2 “Manifestation of Intention” shall be maintained.

【1.5.B】(Liability for damages of the person making the mistake)

The Commission proposes that, as with the present Civil Code, there will be no specific provisions on the liability for damages of the person making the mistake, and this shall be left to the general provisions relating to liability for damages. 【1.5.C】(Distinction between mandate and representation)

The Commission proposes that, as with the present Civil Code, a distinction is to be made between the internal relationship between the parties to a mandate contract and the external relationship with the other party to the act which is performed, and the external relationship of the latter shall be provided for as a matter of “representation” independently of the internal relationship of the former. With respect to the internal relationship, this shall generally be left to the rules for each contract in the Obligations Book; however, when closely relating the rules on internal relationships to the rules on external relationships, this shall be provided for along with the rules on “representation”.


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【1.5.D】(Agency and statutory representation) The Commission proposes that as with the present Civil Code, with respect to

“representation,” rules shall be established for both agency and statutory representation and, where necessary, particular rules shall be stipulated for each. 【1.5.E】(Construction of rules on representation and delegation)

The Commission proposes as follows. (1) Authority shall be positioned as a matter on a par with representation and the division

corresponding to “Representation” in the present Civil Code shall be replaced with “Representation and Authority.”

(2) The rules concerning “representation” shall be divided into the “basic principles” of representation, “apparent agency” and “unauthorized representation” and shall be stipulated in such order.

【1.5.F】(Representation for a commercial act)

The Commission proposes that the rules of Article 504 of the Commercial Code shall not be made into general law. 【1.5.G】(Unspecified principals)

The Commission proposes that there shall be no particular provisions on unspecified principals. 【1.5.H】(Positioning of rules relating to sub-agency) The Commission proposes that, with respect to the appointment of a sub-agent by the agent, there shall be a distinction between the internal relationship between the agent and the sub-agent and the external relationship with the other party, and matters necessary for the rules on the external relationship of the latter shall be provided for in the division on “Representation” and the rules on the internal relationship of the former shall be left to the rules for each contract in the Obligations Book. 【1.5.I】 (Responsibility of the representative in cases of appointment of a substitute representative) The rules corresponding to Article 105 of the present Civil Code relating to the responsibility of the agent in cases where a substitute representative has been appointed shall be left to the rules for each contract【3.2.10.05】(2), (3) in the Obligations Book. 【1.5.J】 (Special cases of grounds for extinguishment of the authority of representation granted through mandates of commercial acts)

The Commission proposes that the rules corresponding to Article 506 of the Commercial


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Code shall remain in the Commercial Code; however, further careful deliberation is required on the side of the Commercial Code with respect to the necessity of establishing provisions corresponding to Article 506 of the Commercial Code and its contents. 【1.5.K】(Classifications of apparent representation) The Commission proposes as follows. (1) With respect to apparent representation, separate classifications shall be provided for as

with the present Civil Code, and an all-inclusive provision shall not be established. (2) In this regard, the three classifications of the present Civil Code – apparent representation

through indication of granted authority of representation, apparent representation of acts outside the area of authority and apparent representation after extinguishment of the authority of representation – shall be maintained and revisions shall be confined to only those that are necessary.

【1.5.L】(Indirect representation) The Commission proposes that except for matters related to the delegation of power, indirect representation shall be subject to the rules concerning intermediated contracts (mandate contracts), and general provisions shall not be established.

Division 1 General Principles 【1.5.01】(Effect of a juridical act)

In accordance with the provisions of this Code and other laws and regulations, a juridical act shall take effect based on a manifestation of intention. 【1.5.02】(Public policy) (1) A juridical act which is contrary to public policy is void. (2) A juridical act whose object injures a party’s rights or acquires an unfair benefit by

utilizing such party’s distress, dependence or state of oppression or by utilizing such aspects as the party’s lack of consideration, experience or knowledge, is void.

【1.5.03】(Juridical acts and the provisions of laws and regulations)

If the parties to a juridical act have manifested an intention which differs from the provisions of laws and regulations, such intention shall prevail; provided, however, that this shall not apply when the provisions relate to public policy. 【1.5.04】(Juridical acts and custom)

If there is a custom relating to a juridical act, such custom shall prevail; provided,


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however, that this shall not apply when such custom is contrary to public policy (including cases where the custom is contrary to the provisions of laws and regulations relating to public policy), or if it is recognized that the parties manifested an intention which differs from such custom. 【1.5.05】(Revision of Article 3 of the Act on the General Rules Relating to the Application of Law)

Article 3 of the Act on the General Rules Relating to the Application of Law shall be revised as follows.

Custom shall have an effect equivalent to law except when such custom is contrary to public policy (including cases where the custom is contrary to the provisions of laws and regulations relating to public policy). 【1.5.06】(Revision of Article 1, paragraph 2 of the Commercial Code) [Proposal A]

Article 1, paragraph 2 of the Commercial Code shall be deleted. [Proposal B]

Article 1, paragraph 2 of the Commercial Code shall be revised as follows. With respect to commercial affairs, where there are matters which are not provided for in

this Code, the provisions of the Civil Code shall apply. 【1.5.07】(Definition of consumer/business operator) (1) In order to distinguish the applicable subjects of the special provisions relating to

consumer contracts, the provisions for the definitions of consumer and business operator shall be placed together as a pair.

(2) With respect to the definitions of consumer/business operator, they shall be based on the following standpoints. (a) Consumer: an individual who concludes a contract for activities other than a business

activity (or a professional activity). (b) Business operator: a juridical person or other organization

An individual who concludes a contract for a business activity (or professional activity).

(3) When utilizing the concept of a business operator for a contract other than a consumer contract, the above definition shall be used, and when there is a necessity to narrow down the requirements, the wording “as a commercial (operation),” “within the scope of a commercial (operation)” or other wording shall be added.

【1.5.08】(Definition of consumer contract) (1) As used in this Act, a “consumer contract” is a contract concluded between a consumer


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and a business operator. (2) The provisions prescribed with regard to a consumer contract do not apply to labor

contracts. Division 2 Manifestation of Intention 【1.5.09】(Mental capacity) (1) A manifestation of intention which is made when in a state lacking the ability to

appreciate the meaning of performing the juridical act (hereinafter referred to as “mental capacity”) may be rescinded.

(2) In cases of (1) above, if the person manifesting an intention caused the temporary lack of mental capacity with intent or gross negligence, the manifestation of intention may not be rescinded; provided, however that this shall not apply if the other party knew or was grossly negligent in not knowing that the person manifesting the intention was lacking in mental capacity.

* Some views were expressed on establishing provisions on the effect as follows. (1) A manifestation of intention made while in a state lacking the capacity to appreciate the

meaning of performing the juridical act (hereinafter referred to as “mental capacity”) is void.

(2) In cases of (1) above, if the person manifesting an intention caused the temporary lack of mental capacity with intent or gross negligence, the manifestation of intention shall not preclude the effect; provided, however, that this shall not apply if the other party knew or was grossly negligent in not knowing that the person manifesting the intention was lacking in mental capacity.

【1.5.10】(Special provisions for acts relating to daily life)

An act, which comes under the proviso of Article 9 of the present Civil Code, may not be rescinded even if performed while in a state lacking mental capacity. *1 One view was expressed on establishing provisions with regard to the effect as follows. An act, which comes under the proviso of Article 9 of the present Civil Code, shall not preclude the effect even if performed while in a state lacking mental capacity. *2 With regard to this proposal and the proposal of *1, one view was expressed that special provisions shall not be established relating to acts coming under the proviso of Article 9 of the present Civil Code. 【1.5.11】(Mental reservation) (1) If a person manifesting an intention makes the manifestation of intention knowing it not to

be true, such manifestation of intention is void, only when falling under one of the


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following items: (a) The other party knows that such intention is untrue; or (b) The other party could have known that such intention is untrue; provided, however,

that this does not apply if the person manifesting the intention concealed the fact that the intention was untrue in order to mislead the other party into thinking that the person manifesting the intention had a true intention.

(2) The invalidity of a manifestation of intention pursuant to (1) may not be asserted against a third party without knowledge.

【1.5.12】(Fictitious manifestation of intention) (1) A fictitious manifestation of intention made in collusion with the other party is void. (2) The invalidity of a manifestation of intention pursuant to (1) may not be asserted against a

third party without knowledge. 【1.5.13】(Mistakes) (1) In cases where a manifestation of intention, which differs from a true intention, is made

with regard to one of the parties or the contents of a juridical act through a mistake, if it can be believed that the person manifesting the intention would not have made the manifestation of intention if there had been no such mistake and, where it is reasonable to believe so, such manifestation of intention may be rescinded.

(2) In cases where at the time of manifesting the intention, the nature of a person or a thing or some other fact relating to such manifestation of intention was wrongly recognized, only when such recognition is reflected in the contents of a juridical act shall it be deemed to fall under the manifestation of intention made pursuant to the mistake of (1).

(3) In cases of (1) and (2), if there is gross negligence on the part of the person manifesting the intention, such manifestation of intention may not be rescinded; provided, however, that this shall not apply when falling under one of the following items: (a) The other party knows about the mistake of the person manifesting the intention; (b) The other party is grossly negligent in not knowing about the mistake of the person

manifesting the intention; (c) The other party brought about the mistake of the person manifesting the intention; or (d) The other party made the same mistake as the person manifesting the intention.

(4) The rescission of a manifestation of intention pursuant to (1), (2) and (3) may not be asserted against a third party without knowledge or fault.

【1.5.14】(Special provisions on electronic consumer contracts) (1) In cases of【1.5.13】(1) and (2), with regard to the manifestation of intention for the offer

or acceptance of an electronic consumer contract made by a consumer, when a mistake falls under any of the following, even if there is gross negligence on the part of the person


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manifesting the intention, such manifestation of intention may be rescinded; provided, however, that this shall not apply in cases where the business operator which is the other party to the electronic consumer contract (including a person who is entrusted, the same shall apply hereinafter), with regard to the manifestation of intention for offer or acceptance, took measures, via the screen through electronic means, to ask for confirmation of whether or not a manifestation of intention for offer or acceptance was to be made, or where a declaration of intention was made by the consumer to the business operator to the effect that there was no need to take such measures: (a) At the time of the consumer making a transmission using its computer, the consumer

did not intend to manifest an intention to offer or accept an electronic consumer contract with the business operator; or

(b) At the time of the consumer making a transmission using its computer, the consumer intended to make a manifestation of intention whose object differed from the manifestation of intention for the offer or acceptance of such electronic consumer contract.

(2) In (1), an “electronic consumer contract” is a contract which has been concluded between a consumer and a business operator through electronic means via a computer screen and, through the consumer making a transmission using its computer complying with the procedures displayed on the screen by the business operator or the person who has been entrusted, the manifestation of intention for such offer or acceptance is made.

(3) In (1), “electronic means” is a method using electronic information processing systems or any other method using information communications technology.

【1.5.15】(Misrepresentation) (1) With regard to a manifestation of intention made to the other party, in cases where the

other party made a representation which differed from fact regarding matters which would ordinarily influence the decision of the person manifesting the intention as to whether or not to make the manifestation of intention, and such person manifested an intention based on an incorrect understanding of the facts, such manifestation of intention may be rescinded.

(2) With regard to the manifestation of intention made to the other party, in cases where a third party made a representation which differed from fact regarding matters which would ordinarily influence the decision of the person manifesting the intention as to whether or not to make the manifestation of intention, and such person manifested an intention based on an incorrect understanding of the facts, such manifestation of intention may be rescinded only when falling under one of the following items: (a) The third party serves as a representative for the other party or is some other person

for whose act the other party should bear responsibility; or (b) At the time of the person manifesting the intention making the manifestation of


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intention, the other party knew or could have known that the third party had made a representation to the person manifesting the intention which differed from fact.

(3) The rescission of the manifestation of intention pursuant to (1) and (2) may not be asserted against a third party who is without knowledge or fault.

* Cases falling under Article 4, paragraph 2 of the Consumer Contract Act (failure of notification of a disadvantageous fact) would constitute the “misrepresentation” denoted here, and therefore rescission would be permitted in accordance with【1.5.15】, but one view was also expressed that it would be preferable to explicitly confirm to such effect. 【1.5.16】(Fraud) (1) If the person manifesting the intention was induced to do so through fraud, it may rescind

such manifestation of intention. (2) If through information, which should have been provided under the principle of good faith

not being provided, or an explanation, which should have given under the principle of good faith not being given, the person manifesting the intention was deliberately made to make a mistake or the mistake of the person manifesting the intention was deliberately abused leading to the person making the manifestation of intention, it shall be deemed that the manifestation of intention was made through the fraud of (1).

(3) If a third party committed fraud with regard to the manifestation of intention made to the other party, such manifestation of intention may be rescinded only when falling under one of the following: (a) The third party serves as a representative for the other party or is some other person

for whose act the other party should bear responsibility; or (b) At the time of the person manifesting the intention making the manifestation of

intention, the other party knew or could have known that such third party had committed fraud.

(4) The rescission of the manifestation of intention pursuant to (1), (2) and (3) may not be asserted against a third party who is without knowledge or fault.

【1.5.17】(Duress)

If the person manifesting the intention was induced to do so under duress, it may rescind such manifestation of intention. 【1.5.18】(Special provisions on consumer contracts – misconception based on the provision of a conclusive evaluation) (1) At the time of the business operator soliciting for the conclusion of a consumer contract, if

through providing the consumer with a conclusive evaluation on uncertain items with regard to the goods, rights, services or other things which were the object of such consumer contract, the consumer was under the misconception that the details of the


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conclusive evaluation so provided were definite and, through such misconception, manifested an intention to offer or accept the consumer contract, such manifestation of intention may be rescinded.

(2) If a third party provided the consumer with the conclusive evaluation in (1), the manifestation of intention to offer or accept such consumer contract may be rescinded only when falling under one of the following items:

(a) Such third party serves as the representative or some other person of such business operator and the business operator is the person who should bear responsibility for such act; or

(b) At the time of the consumer manifesting the intention to offer or accept the consumer contract, the business operator knew or could have known that the third party had provided a conclusive evaluation.

(3) A representative for the consumer pertaining to the conclusion of the consumer contract (including sub-agent (including those persons who are appointed as sub-agents through two or more layers)) is deemed to be the consumer with regard to the application of (1) and (2).

(4) The rescission of the manifestation of intention for the offer or acceptance of a consumer contract pursuant to (1), (2) and (3) may not be asserted against a third party without knowledge or fault.

【1.5.19】(Special provisions on consumer contracts – distress) (1) At the time of the business operator soliciting for the conclusion of a consumer contract,

aside from when falling under one of the following acts, if the business operator continued to solicit the consumer despite the consumer indicating a desire to the effect that continuation of the solicitation was unwanted, and through the business operator continuing the solicitation the consumer was distressed into manifesting the intention to offer or accept such consumer contract, such manifestation of intention may be rescinded: (a) The consumer indicated a desire to the business operator to the effect that the business

operator leave the residence or the place where the business was being conducted but the business operator did not leave such place; or

(b) The consumer indicated a desire to the effect that it wished to leave the place where such business operator was soliciting for conclusion of the consumer contract but the business operator did not allow the consumer to leave such place.

(2) 【1.5.18】 (2), (3), and (4) shall apply mutatis mutandis to (1). 【1.5.20】(Effective time of the manifestation of intention) (1) A manifestation of intention to which there is another party takes effect when the

manifestation of intention reaches the other party. (2) When falling under one of the following items, except for cases where otherwise agreed


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or where there is a custom, the manifestation of intention is deemed to have reached as in (1) at that time: (a) In cases where the other party or a person who has the authority to receive the

manifestation of intention for the other party has recognized the manifestation of intention; or

(b) Aside from cases where the manifestation of intention has arrived in the receiving equipment set up or specified by the other party or a person who has the authority to receive the manifestation of intention for the other party, cases where the other party or the person who has the authority to receive the manifestation of intention for the other party was in an environment where it could recognize the manifestation of intention.

(3) In cases where a manifestation of intention to which there is another party is made using a means which usually should have reached the other party, if the other party did not perform an act necessary for the delivery without justifiable reason and as a result the manifestation of intention did not reach the other party, such manifestation of intention is deemed to have reached at the time the usual delivery would have been made.

【1.5.21】(Death or lack of mental capacity/ limits on the capacity to act of the person manifesting an intention)

The effect of a manifestation of intention made to a person at a distance shall not be precluded even if the person manifesting the intention dies or comes to lack mental capacity after making the manifestation of intention, or limits have been placed on the capacity to act with regard to such manifestation of intention. 【1.5.22】(Capacity to receive the manifestation of intention)

If the other party to a manifestation of intention was in a state lacking mental capacity at the time of receiving such manifestation of intention, or was a minor or an adult ward, such manifestation of intention may not be asserted against the other party; provided, however, that this shall not apply after its statutory representative has become aware of such manifestation of intention. 【1.5.23】(Manifestation of intention by public notice) (1) If the person manifesting the intention is unable to identify the other party or does not

know the whereabouts of the other party, the manifestation of intention may be made through means of a public notice.

(2) The public notice in (1) shall be in accordance with the provisions of the Code of Civil Procedure regarding service by public notice (Law No. 109 of 1996), shall be posted on the court notice board and the fact of the posting shall be published at least once in the Official Gazette; provided, however, that if the court deems it appropriate, the court may


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order a posting on the notice board of the city office, ward office, or town or village office or any equivalent facility in lieu of the publication in the Official Gazette.

(3) The manifestation of intention by means of the public notice is deemed to have reached the other party upon the elapse of two weeks since the day the fact of the last posting was published in the Official Gazette, or the day on which any posting in lieu of such publication commenced; provided, however, that the service of such notice shall not take effect if the person manifesting the intention was negligent in not identifying the other party or not knowing the whereabouts of the other party.

(4) The procedure for the public notice shall be subject to the jurisdiction of the summary court which has jurisdiction over the area where the residence of the person manifesting the intention is located in cases where the other party cannot be identified, or over the area where the last known residence of the other party is located where the whereabouts of the other party is unknown.

(5) The court shall require the person manifesting the intention to pay for the costs for the public notice in advance.

Division 3 Representation and Authority Section 1 Representation Subsection 1 Basic Principles

【1.5.24】(Basic requirements of representation) (1) In cases where the representative is granted the authority (hereinafter referred to as

“authority of representation”) by the principal to perform a juridical act in the name of the principal (hereinafter, in such case the representation is “agency” and the authority of representation is the “power of agency”) or possesses authority in accordance with the provisions of law (hereinafter, in such case the representation is “legal (statutory) representation” and the authority of representation is the “authority of legal (statutory) representation”, the juridical act which was performed by the representative, within the scope of authority of representation, and was indicated as being performed in the name of the principal shall have effect directly on the principal.

(2) (1) applies mutatis mutandis to a juridical act performed by a third party to the representative.

* There are some views that of (1), the “juridical act” of the “juridical act which was performed by the representative, within the scope of authority of representation, and was indicated as being performed in the name of the principal shall have effect directly on the principal” should be “manifestation of intention” and of (2) above the “juridical act” of “applies mutatis mutandis to a juridical act performed by a third party to the representative” should be “manifestation of intention”.


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【1.5.25】(In cases of non-disclosure) (1) Even in cases where the representative does not indicate that the representative is acting in

the name of the principal, if the other party knows or could have known that the representative was acting in the name of the principal, the representative is deemed to have acted in the name of the principal.

(2) A juridical act, which was performed by the representative without indicating that it was in the name of the principal, is deemed to have been performed in the name of the representative itself except for the cases in (1).

【1.5.26】(Defect in a juridical act in representation) (1) The existence or non-existence of a fact which would have influenced the effect of the

manifestation of intention made by the representative shall be determined with reference to the representative.

(2) In cases of agency, the principal may not assert that the representative (hereinafter, in such case the representative is the “agent”) did not know of circumstances of which the principal itself knew; provided, however, that this shall not apply when it cannot be expected that the principal would have informed the agent of the circumstances.

(3) In cases of agency, (2) also applies mutatis mutandis to circumstances of which the principal did not know through negligence.

【1.5.27】(Capacity to act of the representative) (1) The representative need not be a person with the capacity to act. (2) With respect to a juridical act which should have effect directly on the principal in

accordance with 【1.5.24】 , the effect shall not be precluded by reason of the representative being a person with limited capacity to act.

* One view was expressed that the following provisions should be established. (1) The principal may grant authority of representation to a person with limited capacity to act.

In such case, with respect to a juridical act which should have effect directly on the principal in accordance with【1.5.24】, the effect shall not be precluded by reason of the representative being a person with limited capacity to act.

(2) If a person who possesses the authority of representation through the provisions of laws and regulations (hereinafter referred to as “statutory representative”) is a person with limited capacity to act, a juridical act performed by such statutory representative in the name of the principal may be rescinded only if such act could be rescinded if the statutory representative had performed it in its own name.

【1.5.28】(Scope of the authority of representation) (1) Aside from the acts fixed in the contract which was the reason for the power of agency


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being granted, the agent has the authority to perform acts which are necessary in achieving such objective.

(2) If with respect to a person who possesses the authority of representation in accordance with the provisions of laws and regulations (hereinafter referred to as “statutory representative”), the scope of the authority of representation is not clear through the provisions of laws and regulations, the statutory representative only possesses the authority to perform the following acts: (a) An act of preservation; (b) An act whose object is the utilization or improvement of a thing or right which forms

the object of representation within the limits of not changing the nature of the thing or right.

【1.5.29】(Appointment of a sub-agent by an agent)

An agent may not appoint a sub-agent; provided, however, that this shall not apply if the consent of the principal has been acquired or if it is not reasonable to expect the agent to perform the act relating to the power of agency itself. 【1.5.30】(Appointment of a substitute representative by a statutory representative) (1) A statutory representative may appoint a substitute representative. (2) If a statutory representative has appointed a substitute representative, the statutory

representative shall bear responsibility with respect to the acts of the substitute representative; provided, however, that if the statutory representative appointed a sub-agent in cases where it was not reasonable to expect the statutory representative itself to perform the act relating to the authority of representation, the statutory representative shall bear responsibility toward the principal only for such appointment and supervision.

【1.5.31】(Authority of the substitute representative) (1) If a substitute representative performs a juridical act within its scope of authority in the

name of the principal, this shall have direct effect on the principal. (2) The substitute representative shall have the same authority and shall assume the same

duties as the representative with respect to a third party. 【1.5.32】(Acts of conflicts of interest) (1) If a representative performs one of the following juridical acts, the principal may assert

that the effect of the juridical act should not be imposed on it; provided, however, that this shall not apply if the principal had given consent to the representative to perform such juridical act or when it is clear that the interests of the principal have not been injured: (a) The representative performs a juridical act with itself representing the principal; (b) The representative performs a juridical act representing both the principal and the


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other party; or (c) Juridical acts other than those in (a) and (b) where there is a conflict of interest

between the principal and the representative or with an interested party. (2) If with regard to the representative performing the juridical act in (1) (excluding the

juridical acts of (1) (a) and (b)) the other party was in good faith and, there was no gross negligence, the principal may not assert that the effect of the juridical act should not be imposed on it.

(3) In cases of (1), if a third party was in good faith with regard to the juridical act of (1) being performed and there was no gross negligence, the principal may not assert that the effect of the juridical act should not be imposed on it.

【1.5.33】(Abuse of the authority of representation) (1) In cases where a representative abuses its authority of representation by performing a

juridical act with the other party within the scope of its authority of representation for the purpose of looking after its own interests or the interests of another person, if the other party knew of the fact of such abuse or was grossly negligent in not knowing such fact, the principal may assert that the effect of the act should not be imposed on it.

(2) With respect to (1), in cases where the authority of representation abused by the representative was the authority of statutory representation, if the other party knew of the fact of such abuse or was negligent in not knowing such fact, the principal may assert that the effect of the act should not be imposed on it.

(3) In cases of (1) and (2), if a third party was in good faith with regard to the fact of such abuse and there was no gross negligence, the principal may not assert that the effect of the act should not be imposed on it.

【1.5.34】(Grounds for extinguishment of the authority of representation) (1) Except in cases where there is a particular agreement, the power of agency is extinguished

when the contract which was the reason for the power of agency being granted terminates; provided, however, that in accordance with【3.2.10.17】, if the agent or its heir, or a statutory representative must effect necessary dispositions, the power of agency shall not be extinguished within such extent.

(2) The authority of statutory representation is extinguished through the following grounds: (a) The death of the principal or the death of the representative; (b) The representative becoming subject to a ruling of commencement of bankruptcy

proceedings; and (c) The representative becoming subject to an order for commencement of guardianship.


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Subsection 2 Apparent Representation 【1.5.35】(Apparent representation through indication of granted authority of representation) (1) If a person indicates to the other party to the effect that the authority of representation has

been granted to another person, the principal person may not assert that the effect of the act should not be imposed on it with regard to the acts performed to the other party by the other person within the scope of the authority of representation, except when falling under one of the following items: (a) The person who indicated to the other party to the effect that the authority of

representation had been granted to another person did not know that the authority of representation which was indicated had not been granted; provided, however, that this shall not apply if there was gross negligence on the part of such person;

(b) The other party knew that the indicated authority of representation had not been granted; or

(c) The other party did not know, through negligence, that the indicated authority of representation had not been granted; provided, however, that if the person who indicated to the other party to the effect that the authority of representation had been granted to another person, knowing that the indicated authority of representation had not been granted, made the indication in order to mislead the other party into thinking that it had been granted.

(2) In cases where the person indicated to the other party to the effect that the authority of representation had been granted to another person, even if the other person performed acts with the other party beyond the scope of the authority of representation, if there was justifiable reason for the other party to believe that the other person possessed the authority of representation with regard to such act, it shall be deemed to be equivalent to (1).

(3) (1) and (2) shall apply mutatis mutandis to cases where the other person was given permission to perform juridical acts to the other party using the principal person’s own name.

(4) In cases where the person stated in writing (in this proposal【1.5.35】including the electronic records of【3.1.1.04】) to the effect that the authority of representation was to be granted to another person and such other person presented the writing to the other party, it shall be presumed that an indication was made to the other party to the effect that the authority of representation described in writing had been granted. Moreover, in cases where the person stated in writing to the effect that the authority of representation had been granted without specifying the representative, and the person who acquired the writing presented the writing to the other party, it shall be presumed that an indication was made to the other party to the effect that the authority of representation described in the writing had been granted to such person.


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【1.5.36】(Apparent representation of acts outside the area of authority)

In cases where the representative performs acts outside the area of authority, if the other party believed that the representative had the authority of representation for such act and, taking into consideration the following circumstances and other factors, it is recognized that there was justifiable reason to have believed as such, the principal may not assert that the effect of such act should not be imposed on it: (a) The existence of circumstantial matters which would induce presumption that there was

authority of representation for the act; (b) The process by which the representative acquired the circumstantial matters of (a) and

the extent to which the principal was involved; (c) The statements and conduct of the principal toward the representative’s act; (d) The extent of the benefit acquired by the representative through the act, the extent of the

disadvantage or the burden to be assumed by the principal and the existence and extent of any circumstances which suggest that the representative possesses the authority of representation with regard to the act; and

(e) The existence and the extent of acts which were performed by the other party to investigate or confirm the authority of representation granted to the representative.

【1.5.37】(Apparent representation after extinguishment of the authority of representation) (1) In cases where, despite the complete or partial extinguishment of the authority of

representation granted by the principal, the representative performs acts within the scope of the authority of representation as though having such authority of representation, and the other party does not know of the complete or partial extinguishment of the authority of representation, the principal may not assert that the effect of such act should not be imposed on it; provided, however, that this shall not apply if the other party does not know, through negligence, that the authority of representation of the representative has been completely or partially extinguished.

(2) In cases where, despite the complete or partial extinguishment of the authority of representation granted by the principal, the representative performs acts outside the scope of the authority of representation as though having such authority of representation, and the other party does not know of the complete or partial extinguishment of the authority of representation and, taking into consideration the circumstances in【1.5.36】(a) to (e), there is justifiable reason for the other party to have believed that the representative had authority of representation for such act, the principal may not assert that the effect of such act should not be imposed on it; provided, however, that this shall not apply if the other party did not know, through negligence, that the authority of representation of the representative had been completely or partially extinguished.


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Subsection 3 Unauthorized Representation 【1.5.38】(Unauthorized representation for a contract) (1) If a person who does not have the authority of representation (hereinafter referred to as an

“unauthorized representative”) concludes a contract as the representative for another person, the principal may ratify the contract; provided however, that if the principal refuses ratification, it may not ratify the contract afterwards.

(2) In cases of (1), if the principal ratifies the contract, unless where otherwise agreed, the contract shall have a retroactive effect on the principal as from the time of concluding the contract; provided, however, that the rights of a third party are not injured.

(3) The ratification or refusal of ratification may be asserted against the other party only when it was made to such other party; provided, however, that this shall not apply if the other party has come to know of such fact.

【1.5.39】(Unauthorized representation for a unilateral act) (1) If an unauthorized representative performs a unilateral act as the representative for another

person, the principal may not ratify this act; provided, however, that this shall not apply when falling under one of the following: (a) The other party did not state an objection with regard to the unauthorized

representative performing the act as the representative for another person; or (b) The other party agreed to the unauthorized representative performing the act without

having the authority of representation. (2) If the other party performs a unilateral act to the unauthorized representative, the principal

may not ratify such act; provided, however, that this shall not apply if the unauthorized representative agrees to become the other party to such act as the representative for the principal.

(3) In cases of either the proviso in (1) or the proviso in (2), the provisions of【1.5.38】(2) and (3) and from【1.5.40】to【1.5.44】shall apply mutatis mutandis.

【1.5.40】(Unauthorized representation and succession – availability of ratification/refusal of ratification) (1) If a person who does not have the authority of representation concludes a contract as the

representative for another person, and subsequently the unauthorized representative succeeds the principal, the unauthorized representative may not refuse such ratification.

(2) If a person who does not have the authority of representation concludes a contract as the representative for another person, and subsequently the principal succeeds the unauthorized representative, the principal may ratify the contract or refuse such ratification.


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(3) If a person who does not have the authority of representation (unauthorized representative) concludes a contract as the representative for another person, and subsequently a further person succeeds the unauthorized representative, and then succeeds the principal, such person may ratify the contract or refuse such ratification.

(4) If a person who does not have the authority of representation (unauthorized representative) concludes a contract as the representative for another person, and subsequently a further person succeeds the principal, and then succeeds the unauthorized representative, such person may ratify the contract or refuse such ratification.

【1.5.41】(Right of request of the other party to the unauthorized representation)

If a person who does not have the authority of representation concludes a contract as the representative for another person, the other party may set a reasonable period of time and request the principal to give a definite answer within such period of time as to whether or not the contract is to be ratified. In such case, if the principal does not give a definite answer within such period of time, it shall be deemed that the ratification was refused. 【1.5.42】(Right of revocation of the other party to the unauthorized representation)

If a person who does not have the authority of representation concludes a contract as the representative for another person, the other party may revoke its manifestation of intention for offer or acceptance within the period of the principal not ratifying the contract; provided, however, that this shall not apply if the other party knew the person did not have the authority of representation at the time of concluding the contract. 【1.5.43】(Responsibility of the unauthorized representative)

A person who concludes a contract as the representative for another person, excluding cases where it possesses the authority of representation with regard to such contract, shall bear responsibility toward the other party for either performance or compensation for damage in lieu of the performance subject to the other party’s choice; provided, however, that this shall not apply in any of the following cases: (a) The principal ratified such contract; (b) The other party knew that the person concluding the contract as the representative for

another person did not possess the authority of representation; (c) The other party did not know, through negligence, that the person concluding the contract

as the representative for another person did not possess the authority of representation; provided, however, that this shall not apply if the person concluding the contract as the representative for another person, knew that it did not possess the authority of representation and yet made the other party believe that it did possess the authority of representation;

(d) The person concluding the contract as the representative for another person had limits on


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the capacity to act with regard to such contract; or (e) The person concluding the contract as the representative for another person did not

personally know that it did not possess the authority of representation; provided that this shall not apply if there was gross negligence on the part of such person.

【1.5.44】(Succession of the responsibility of the unauthorized representative) (1) In cases where a person who does not have the authority of representation concludes a

contract as the representative for another person and subsequently the principal succeeds the unauthorized representative, if the principal refuses ratification of such contract, such principal shall be released from the responsibility of the performance in【1.5.43】.

(2) (1) applies mutatis mutandis when a person who does not have the authority of representation concludes a contract as the representative for another person, and subsequently a person, who succeeds the unauthorized representative, and then succeeds the principal, refuses ratification.

(3) (1) applies mutatis mutandis when a person who does not have the authority of representation concludes a contract as the representative for another person, and subsequently a person who succeeds the principal, and then succeeds the unauthorized representative, refuses such ratification.

Section 2 Delegation of Power 【1.5.45】(Delegation of power) (1) In cases where a right holder grants to another person the power to dispose of the right

belonging to the right holder in the name of such other person, if such other person, based on such power, performs a juridical act to the effect of disposing of such right to a third party, such right shall transfer directly from the right holder to the third party.

(2) In cases where, without acquiring the consent of the right holder, another person performs a juridical act to the effect of disposing of the right of the right holder to a third party, the right holder may, in accordance with such intention, make such third party directly acquire such right.

(3) In cases of (1) and (2), the right holder may assert against the third party the grounds that could have been asserted by the other person based on the juridical act between such other person and the third party.

【1.5.46】(Application mutatis mutandis of the provisions on representation) In cases of【1.5.45】, the provisions concerning representation apply mutatis mutandis; provided, however, that this shall not apply if the nature of the act does not so allow.


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Division 4 Invalidity and Rescission

【1.5.47】(Partial invalidity of the term of a juridical act) In cases where one part of a specific term included in a juridical act is void, only such part

is void; provided, however, that when coming under one of the following items, the entire term shall be void: (a) There are special provisions in laws and regulations; (b) It is deemed unreasonable to maintain the effect of the other parts owing to the nature of

such term; (c) Such term is a part of general contractual conditions (excluding cases where there are

particular provisions in laws or regulations); or (d) Such term is a part of a consumer contract (excluding cases where there are particular

provisions in laws or regulations). * Of the proposals listed in【1.5.47】 with regard to (c) and (d), some views were expressed concerning repetition with regard to the part prescribing regulations on unfair terms of the general conditions and consumer contracts, and other views were expressed on the possibility of moving this part to the part on unfair terms of the general conditions and consumer contracts and deleting it from this proposal. 【1.5.48】(Supplementation of a void term)

If part of a juridical act is void and supplementation of such part is required, the void part shall be supplemented through contents which most likely would have been implemented had the parties known that such part was void; and if the contents are not clear then they shall be supplemented first through custom, if there is no custom through the default rules, and in cases where they cannot be supplemented through any of them, the void part shall be supplemented in compliance with the principle of good faith. 【1.5.49】(Partial invalidity of a juridical act)

If part of a juridical act is void, this does not preclude the effect of the other parts of the juridical act; provided, however, that if it is reasonable to believe that the parties would not have performed such juridical act if one part was void, the entire juridical act shall be void. 【1.5.50】(Invalidity of multiple juridical acts)

In cases where there is a close link between multiple juridical acts and one of the juridical acts becomes void, and it is reasonable to think that the parties would not have performed the other juridical acts which were closely linked had such juridical act been void, the other juridical acts shall also be void.


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【1.5.51】(Effect of an invalid juridical act) (1) The party to a juridical act may not seek the performance of an obligation based on an

invalid juridical act. (2) If the party to a juridical act has performed an obligation based on an invalid juridical act,

such party may seek the return of the benefit performed to the other party. (3) In cases of (2), if the exact benefit received by the other party cannot be returned, the

other party assumes the duty of returning its value. (4) In cases of (2) and (3), if the other party received the benefit without knowing that the

juridical act was invalid, the other party shall assume the duty of return to the extent of the existing benefit.

(5) The provision of (4) does not apply in cases where the juridical act is a bilateral contract or a onerous contract; provided, however, that a person, who received the benefit without knowing that the juridical act was invalid, shall assume the duty of return of (3) to the extent of the value which was delivered or should have been delivered based on the juridical act.

【1.5.52】(Ratification of a void act) (1) A void act shall not take effect even if ratified by a party. (2) If a party ratifies an act knowing it to be void, it is deemed to have performed a new act. 【1.5.53】(Scope of the person with the right of rescission) (1) An act which may be rescinded owing to limits on the capacity to act may be rescinded

only by the person with the limited capacity to act, its representative, successor or a person who is able to give consent.

(2) An act performed while in a state lacking mental capacity may be rescinded only by the person lacking mental capacity, its representative, successor or a person who is able to give consent.

(3) An act which may be rescinded pursuant to 【1.5.13】,【1.5.15】,【1.5.16】,【1.5.17】,【1.5.18】or 【1.5.19】may be rescinded only by the person who manifested the intention based on such causes for rescission, its representative or successor.

* If the effect of an act performed while in a state lacking mental capacity is to be void, (2) shall be deleted. 【1.5.54】(Retroactive invalidity through rescission) (1) An act which has been rescinded is deemed to have been invalid from the beginning. (2) In cases of (1), if the person with limited capacity to act or the person lacking mental

capacity received a benefit based on an invalid act, it shall assume the duty of return only to the extent of the actual enrichment; provided, however, that this shall not apply to a person who came to be in a state temporarily lacking mental capacity through its own


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negligence. (3) In cases where an act is rescindable on the grounds of limits on the capacity to act or a

lack of mental capacity, the provisions of the main text of (2) shall not apply in cases where after a manifestation of intention was rescinded, the person who received a benefit based on such act, recognizing that there was a duty of return to the person who delivered the benefit, consumed the received benefit.

* If the effect of an act performed while in a state lacking mental capacity is to be void, the parts of the provisions concerning a person without legal capacity shall be deleted from the original and (4) shall be newly established as below. (4) The provisions of (2) and (3) shall apply mutatis mutandis in cases where an act becomes

void by reason of lacking mental capacity. 【1.5.55】(Ratification of rescindable acts) If a person stipulated in 【1.5.53】 ratifies a rescindable act, the act may not be rescinded afterwards. 【1.5.56】(Method of rescission/ratification)

In cases where the other party to the rescindable act is identified, the rescission or the ratification shall be made through a manifestation of intention to the other party. 【1.5.57】(Requirements of ratification) (1) Ratification shall not take effect unless the circumstances which formed the cause of the

rescission have been extinguished and the ratification is made after the person with the right of ratification acquired the knowledge that it was able to exercise the right of rescission.

(2) The provision of (1) also applies in cases where the statutory representative or the curator or the assistant of the person with limited capacity to act makes the ratification or in cases where a person with limited capacity to act (except for adult wards) acquires the consent of such statutory representative, curator or assistant and makes such ratification itself.

【1.5.58】(Statutory ratification)

Subsequent to a ratification becoming possible pursuant to 【1.5.56】, a juridical act is deemed to have been ratified if any of the following facts exists with regard to a rescindable juridical act; provided, however, that this shall not apply if an objection has been reserved: (a) Total or partial performance; (b) Total or partial receipt of performance; (c) A demand for performance; (d) A novation; (e) The prestation of security;


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(f) The receipt of security; (g) Total or partial assignment of a right acquired as the result of a rescindable juridical act;

or (h) Execution. * With regard to the “total or partial receipt of performance” in (b), it is possible for this to be deleted. Moreover, there is room for further discussion with regard to the “receipt of security” in (f). 【1.5.59】(Period of exercising the right of rescission) The right of rescission is extinguished if not exercised within three years of the time of a ratification becoming possible. The same applies when ten years have elapsed since the time of the act.

Division 5 Conditions and Due Dates

【1.5.60】(Conditions) (1) If there are provisions stipulating that the whole or a part of the effect of a juridical act

shall enter into force when a fact which was uncertain as to whether or not it would occur in the future does occur, the whole or a part of the effect of the juridical act shall enter into force from the time of occurrence of such fact.

(2) If there are provisions stipulating that the whole or a part of the effect of the juridical act shall be extinguished when a fact which was uncertain as to whether or not it would occur in the future does occur, the whole or a part of the effect of the juridical act shall be extinguished from the time of occurrence of such fact.

(3) If there are provisions stipulating that the whole or a part of the effect of the juridical act shall enter into force or shall be extinguished when a fact which was uncertain as to whether or not it would occur in the future does not occur within a fixed period of time, the same applies as in (1) and (2).

(4) In cases of (1) through to (3), if a party manifests an intention that the whole or part of the effect becoming operative or the extinguishment shall be retroactive to before the occurrence of the fact, such intention shall prevail.

(5) The provision in the cases of (1) shall be referred to as a condition precedent, the provision in the cases of (2) shall be referred to as a condition subsequent, in cases of (1) and (2), if a fact which was uncertain as to whether or not it would occur in the future does occur, such fact shall be referred to as an accomplished condition and in cases of (3) when a fact which was uncertain as to whether or not it would occur in the future does not occur within a fixed time period, it shall be referred to as an accomplished condition.


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【1.5.61】(Juristic relationship pending fulfillment of a condition) (1) During the time when the fulfillment of a condition is pending, the benefit to be received

or the disadvantage to be borne through fulfillment of the condition may be disposed of or shall be succeeded.

(2) During the time when the fulfillment of a condition is pending, in cases where the benefit to be received through fulfillment of the condition is infringed, in accordance with the provisions on defaults or torts, the person who infringed the benefit shall assume the duty of compensating for the damage incurred through infringement of the benefit.

(3) During the time when the fulfillment of a condition is pending, in cases where a person, who would undergo a disadvantage through the condition being fulfilled, prevents the fulfillment of the condition through an act contrary to the principle of good faith, the other party may deem the condition to have been fulfilled.

(4) During the time when the fulfillment of a condition is pending, in cases where a person, who would receive a benefit through the condition being fulfilled, causes the condition to be fulfilled through an act contrary to the principle of good faith, the other party may deem the condition not to have been fulfilled.

【1.5.62】 (Fulfilled conditions, unlawful conditions, impossible conditions, potestative conditions) (1) In cases where the condition was already fulfilled at the time of performing the juridical

act, such juridical act is unconditionally valid when such condition is a condition precedent and such juridical act is void when such condition is a condition subsequent.

(2) In cases where it is already certain that the condition will not be fulfilled at the time of performing the juridical act, such act is void when such condition is a condition precedent and such juridical act is unconditionally valid when such condition is a condition subsequent.

(3) In cases of (1) and (2), during the time when the parties were unaware that the condition had been fulfilled or that the condition had not been fulfilled, 【1.5.61】(1) and (2) shall apply mutatis mutandis.

(4) A juridical act which is subject to an unlawful condition is void. The same applies to any juridical act which is subject to the condition that an unlawful act not be performed.

(5) A juridical act subject to an impossible condition precedent is void. (6) A juridical act subject to an impossible condition subsequent is unconditionally valid. (7) A juridical act which is subject to a condition precedent is void if the condition depends

entirely on the will of the obligor. 【1.5.63】(Assigned time) (1) If there are provisions stipulating that the whole or a part of the effect of a juridical act

shall not accrue until the time when a fact which is certain to occur in the future does


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occur, the whole or a part of the effect of the juridical act shall not accrue until the occurrence of the fact.

(2) If there are provisions stipulating that a demand for the performance of a juridical act may not be made until the time when a fact which is certain to occur in the future does occur, the demand for performance of the juridical act may not be made until occurrence of the fact.

(3) If there are provisions stipulating that the whole or a part of the effect of a juridical act shall be extinguished when a fact which is certain to occur in the future does occur, the whole or a part of the effect of a juridical act shall be extinguished on the occurrence of the fact.

(4) With regard to a fact which is certain to occur in the future pursuant to the cases of (1), (2) or (3), whether or not the time of occurrence was decided in advance does not matter.

(5) The stipulation with regard to cases of (1), (2) or (3) shall be referred to as the assigned time and the occurrence of a fact which was certain to occur with regard to cases of (1), (2) or (3) shall be referred to as the arrival of the assigned time.

【1.5.64】(Benefit of assigned time) (1) The assigned time is presumed to have been prescribed for the benefit of the obligor. (2) A person who possesses the benefit of assigned time may waive the benefit of time

through a manifestation of intention; provided, however, that the benefit of the other party is not injured through such waiver.

(3) The assigned time is deemed to have arrived in the following cases: (a) The obligor destroyed, damaged or diminished the security; (b) In cases where the obligor has the duty of furnishing security, the obligor has failed to

so furnish. (4) The parties may stipulate to the effect that the assigned time is deemed to have arrived in

the case of the occurrence of certain circumstances. Moreover, the parties may stipulate to the effect that the assigned time shall be deemed to have arrived through a manifestation of intention by the obligee to the effect that the assigned time shall be deemed to have arrived in the case of the occurrence of certain circumstances.


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Chapter 6 Calculation of Time Period 【1.6.01】(Calculation of time period) (1) When fixing a period of time by hours, the time period shall commence to run

immediately. (2) When fixing a period of time by days, weeks, months or years, and where the calculation

of the period of time is from a certain point in time heading into the future, the starting day of counting the period of time (first day) is not included in the calculation (when the period of time starts at 00.00, the starting day of counting the period (first day) is included in the calculation), and the time period expires at the end (24.00) of the finishing day of counting the period (last day).

(3) When stipulating a period of time by days, weeks, months or years, and where the calculation of the period of time is from a certain point in time heading back into the past, the starting day of counting the period is not included in the calculation (when the period starts from 24.00, the starting day of counting the period is included), and the expiry of the period is at the commencement (00.00) of the finishing day of counting the period.

(4) When stipulating a time period by weeks, months or years, the period is calculated according to the calendar.

(5) When a time period does not commence at the beginning of the week, month or year, such period expires in the last week, month or year on the day preceding the day corresponding to the commencement day; provided, however, that if the period is stipulated by months or years and the last month does not contain the corresponding day, the period expires on the last day of such month.

(6) With regard to (2), if the last day of the period is a Sunday, a holiday as provided for in the Act on National Holidays (Act No. 178 of 1948) or any other holiday, in cases where it is customary not to conduct business on that day, the period shall expire on the day following such day.

【1.6.02】(General principle nature of the provisions on calculation of a period of time) (1) The provisions relating to the calculation of the time period shall have a general principle

nature and shall be prescribed to the effect of being subject to the provisions of 【1.6.01】, except when there are special stipulations in laws and regulations or in any judicial order or in cases where otherwise stipulated in the juridical act.

(2) Separate consideration shall be given to the positioning of the provisions relating to calculation of the period of time.


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Chapter 7 Prescription 【1.7.01】(Subject matter of acquisitive prescription and extinctive prescription) (1) The subject matter of acquisitive prescription is ownership and any other property right. (2) The subject matter of extinctive prescription is any property right other than ownership

and claims (excluding the rights of immovable property leases). (3) With regard to a period limit on constitutive rights, it shall be in accordance with the

provision of【1.7.13】. 【1.7.02】(Acquisitive prescription of ownership) (1) A person who possesses the property belonging to another person for 20 years peacefully

and publicly with the intention of owning it acquires ownership retroactively from the day of commencement.

(2) The same applies to a person who possesses the property belonging to another person for 10 years peacefully and publicly with the intention of owning it when the person was without knowledge or negligence at the time of commencement of the possession.

【1.7.03】(Acquisitive prescription of property rights other than ownership)

A person who exercises a property right other than ownership peacefully and publicly, with the intention of doing so on its own behalf, acquires such right retroactively to the day of commencement after the elapse of 20 years or 10 years in accordance with the distinction of 【1.7.02】. 【1.7.04】(Extinctive prescription of property rights) (1) A property right other than ownership or claims (excluding the rights of immovable

property leases) is extinguished retroactively to the day of commencement if the right is not exercised within twenty years of the time the right could have been exercised.

(2) If a third party possesses the object thing of a right subject to time of commencement or to a condition precedent, the running of the acquisitive prescription from the time of commencement of the possession shall not be precluded for the benefit of the third party even if prior to the arrival of the time of commencement or fulfillment of the condition precedent; provided, however, that the right holder may request an acknowledgement from the possessor at any time in order to renew the prescription period.

【1.7.05】(Types of prescriptive impediments relating to acquisitive prescription or extinctive prescription)

The three types of prescriptive impediments relating to acquisitive and extinctive prescriptions are renewal of the prescription period, suspension of the running of the


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prescription period and extension of the expiry of the prescription period. 【1.7.06】(Renewal of the prescription period of acquisitive prescription and extinctive prescription) (1) The grounds given below shall be the grounds for renewal with regard to acquisitive

prescription and extinctive prescription: (a) A final and binding judgment, a final and binding adjudication on domestic relations,

a conciliation in accordance with the Act on Adjudication of Domestic Relations or a conciliation in accordance with the Act on Conciliation of Civil Affairs, a judicial settlement or an arbitral award recognizing a right or any other decision which has the same effect as a final and binding judgment;

(b) Civil execution; and (c) Acknowledgement.

(2) The point of time when the renewal takes effect shall be as follows: (a) With respect to the renewal pursuant to (1) (a), at the time of the final and binding

judgment, at the time of a final and binding adjudication on domestic relations or when the same effect as that of a final and binding judgment comes into force;

(b) With respect to the renewal pursuant to (1) (b), at the time of termination of the execution procedure; provided, however, that when this is not executed against the person receiving the benefit of the prescription, the renewal shall not take effect until after such person has been notified of such; or

(c) With respect to the renewal pursuant to (1) (c), at the time of the acknowledgment being made.

(3) A renewal of the prescription period on the ground of (1) has its effect only among the parties with respect to whom the ground for renewal arose and their respective successors.

(4) The period of acquisitive prescription of ownership terminates at the time of the possessor voluntarily discontinuing such possession or being deprived of possession by another person. In such case, if the possessor recommences possession, the period in (1.7.02) shall commence from the time of recommencement of possession.

(5) (4) applies mutatis mutandis to the period of acquisitive prescription of property rights other than ownership.

【1.7.07】(Suspension of the running of the prescription period of acquisitive prescriptions and extinctive prescriptions)

With regard to suspension of the running of the prescription period of an acquisitive prescription or extinctive prescription, excluding the points given below, the same shall apply as【3.1.3.56】to【3.1.3.61】 concerning suspension of the running of the prescription for claims. (a) The wording which specializes claims shall be amended to conform to rights in general.


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(b) 【3.1.3.56】(2),【3.1.3.57】(2),【3.1.3.57】(4), (5) which are proposals for particular provisions on claims shall be removed.

(c) 【3.1.3.56】(1) (d),【3.1.3.60】,【3.1.3.61】(2) (c) and (d), 【3.1.3.61】(3) (d) and (e) which are proposals to recognize the suspension of the running through an agreement shall be removed.

(d) Suspension of the running of the prescription period of an acquisitive prescription or extinctive prescription shall have its effect only between the parties with respect to whom the grounds for suspension of the running arose and their successors.

【1.7.08】(Extension of the expiry of the prescription period of acquisitive prescriptions and extinctive prescriptions)

With regard to extension of the expiry of the prescription period, excluding the points given below, the same shall apply as【3.1.3.62】to【3.1.3.67】relating to the extension of the expiry of the prescription for claims: (a) The wording which specializes claims shall be amended to conform to rights in general; (b) 【3.1.3.62】(2) which is a proposal for a particular provision on claims shall be removed;

and (c) The extension of the expiry of the prescription period through a notification shall have its

effect only between the parties to the notification and their successors. 【1.7.09】(Special provisions relating to the extinctive prescription of mortgages)

The Commission reserved the room for consideration with regard to the principle that a mortgage is not extinguished through a prescription unless the secured claim is extinguished at the same time. 【 1.7.10】 (Invocation of prescription of an acquisitive prescription or an extinctive prescription)

The court may not make a judgment based on an acquisitive prescription or an extinctive prescription unless invoked by a person with a legally justifiable interest. 【1.7.11】(Waiver of the benefit of prescription of an acquisitive prescription or an extinctive prescription)

The benefit of the acquisitive prescription and the benefit of the extinctive prescription may not be waived beforehand. 【1.7.12】 (Forfeiture of the benefit of the acquisitive prescription or the extinctive prescription) (1) A person who acknowledges after the expiry of an acquisitive prescription the continued

existence of a right which should have been extinguished as a result of a right acquired


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through prescription or a person who acknowledges after the expiry of an extinctive prescription the continued existence of a right which should have been extinguished through prescription, even if it did not have the intention of waiving the benefit of prescription, may not invoke the acquisitive prescription or extinctive prescription due to its expiry for the sake of the right whose continued existence the person acknowledged.

(2) In cases of (1), the acquisitive prescription or extinctive prescription shall commence running anew from the time of acknowledging the continued existence of the right.

【1.7.13】(Restrictions on the period for a constitutive right) (1) A right which causes the accrual, change, extinguishment of a right or a duty with

another person through a unilateral manifestation of intention (hereinafter referred to as a “constitutive right”) is extinguished through the elapse of any one of the following periods of time. (a) (Ten years) from the time of being able to exercise the right. (b) (Three/four/five years) from the time of being able to exercise the right and the right

holder coming to know of the cause for accrual of the right and of the other party to the exercising of the right.

(2) With regard to the periods of time listed in (1);【3.1.3.57】(1), (3) (excluding the third sentence), 【3.1.3.60】, 【3.1.3.61】(excluding the third sentence of (2) (b), (3) (b), excluding the third sentence of (3)(c)) relating to suspension of the running of the prescription for claims, and【3.1.3.64】, 【3.1.3.65】, 【3.1.3.66】and【3.1.3.67】relating to extension of the expiry of the prescription for claims shall apply mutatis mutandis.

(3) [Proposal A] A provision relating to invocation of the effect of the expiry of the period shall not be established. [Proposal B] With regard to invocation of the effect of the expiry of the period,【1.7.10】 relating to invocation of prescription,【1.7.11】relating to waiver of the benefit of prescription, 【1.7.12】relating to forfeiture of the benefit of prescription shall apply mutatis mutandis.

(4) With regard to a right which accrues as the result of exercising a constitutive right, it shall be subject to the provisions on prescription of claims or extinctive prescription from the time of exercising the constitutive right.

(5) If a constitutive right is exercised in order to prevent the demand of another person, such exercise is not affected by the extinguishment through the constitutive right of (1).

(6) (1) to (5) shall not apply if otherwise provided for by law. * With regard to (2), it is possible to allow renewal of the period through acknowledgment.

Civil Code Book I General Principles

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Transcript of Civil Code Book I General Principles