The Civil Code of Japan/Book 2

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Real rights other than those specified in this law or in other laws cannot be created.

The creation or the transfer of a real right takes effect from the mere expression of intention of the parties concerned.

The acquisition or loss of, or any alteration in a real right in an immovable can be set up against third persons only if such fact has been registered according to the provisions of the Law of Registration.

The assignment of a real right in a movable can be set up against third persons only if the thing has been delivered.

If the ownership of and any other real right in the same thing become vested in the same person, the ​latter right is extinguished; but this does not apply, if such thing or such right is the subject of a right of a third person.

If any real right except ownership and a right of another person, the subject of which is such real right, becomes vested in the same person, such other right is extinguished. In such case the proviso of the preceding paragraph applies correspondingly.

The provisions of the preceding article do not apply to a possessory right.

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A person acquires a possessory right by holding a thing with the intention of doing so for himself.

A possessory right may be acquired through a representative.

An assignment of a possessory right is effected by the delivery of the thing possessed.

​If the assignee or his representative is already holding the thing, the assignment of a possessory right may be made by a mere expression of intention by the parties.

If a representative expresses an intention to hold a thing which he has in his own possession thereafter for the principal, the latter acquires thereby a possessory right.

When possession of a thing is held through a representative, if the principal directs the representative to hold possession thereafter for a third person, such third person acquires the possessory right upon consenting thereto.

When in consequence of the nature of his title a possessor holds without the intention of being owner, he can change the nature of his possession only by a notice to the person under whom he holds, that he intends to hold as owner, or by beginning a new holding under a new title with the intention of holding as owner.

It is presumed that a possessor possesses with the intention of holding as owner, in good faith, undisturbed and openly.

If it is proved that a person has possessed a thing at two different times, it is presumed that his possession has continued during the interval.

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The successor of a possessor can rely at his option either upon his own possession only or upon his own possession together with that of his predecessor.

In the latter case he also succeeds to all defects in his predecessor’s possession.

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It is presumed that the possessor has lawfully the right which he exercises over the thing possessed.

A possessor in good faith acquires the fruits of the thing possessed.

If a possessor in good faith is defeated in a petitory^[1] action, he is deemed to have been a possessor in bad faith from the time of the commencement of the action.

A possessor in bad faith must restore the fruits, and must account for the value of those which he has consumed or by his fault damaged or omitted to secure.

​This provision applies correspondingly to a person who possesses by force or clandestinely.

If the thing possessed is lost or damaged by a cause attributable to the possessor, a possessor in bad faith is liable to the person who reclaims the thing for full damages, and a possessor in good faith is liable only so far as he is presently enriched by reason of such loss or damage; but a possessor who has not the intention to hold as owner is liable for all damages even though he acts in good faith.

If a person without disturbance and openly begins to possess a movable thing in good faith and without fault, he acquires at once the right exercised by him over the thing.

If in the case mentioned in the preceding article the thing is one which has been stolen or lost, the party wronged or the loser may claim the restoration of the thing from the possessor within two years from the time of the theft or loss.

If the possessor has acquired the thing stolen or lost in good faith by purchase at an auction or in a public market or from a trader who deals in such wares, the person wronged or the loser can reclaim it from the possessor only on condition that he repays to the possessor the amount which the latter has paid for it.

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A person who has possession of an animal other than a domestic animal, which was formerly kept by another person, acquires the right which he exercises over such animal, if he began his possession in good faith, and the former keeper of the animal does not reclaim it within one month from the time when it escaped.

When the possessor of a thing restores it, he is entitled to reimbursement from the person who reclaims it for whatever amount he has expended on its preservation and for other necessary expenses; but if the possessor has acquired the fruits of the thing, the ordinary necessary expenses fall upon him.

If the possessor has expended money in repairing the thing, or incurred other beneficial expenses for it, provided that an increase of the value of the thing still exists therefrom, he is entitled against the person who reclaims it to the amount either of such expenditure or of the increase of value at the latter’s option. But as against a possessor in bad faith the court may on the application of the person reclaiming grant him a reasonable time for payment.

A possessor may bring a possessory action^[2] as provided in the following five articles. This applies also to a person who holds possession for another.

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If a possessor is disturbed in his possession, he may by an action for the maintenance of possession claim the stoppage of the disturbance and compensation for damage.

If there is danger that his possession is about to be disturbed, a possessor may by an action for the protection of possession claim the prevention of such disturbance or security for damages.

If the possessor is dispossessed by force, he may by an action for the recovery of possession claim the restoration of the thing and compensation for damage.

Against a singular successor of a forcible dispossessor an action for the recovery of possession will not lie, unless he had knowledge of the fact of the dispossession.

An action for the maintenance of possession must be brought while the disturbance continues, or not later than one year after it has ceased. But if the thing possessed is damaged by any construction made upon it, the action cannot be brought after one year has elapsed since the beginning of such construction, or after it is completed.

An action for the protection of possession can be brought at any time while the danger continues; but if the danger arises from any construction, the proviso of the preceding paragraph applies.

​An action for the recovery of possession must be brought within one year from the time of dispossession.

A possessory action and a petitory action^[3] do not exclude each other.

A possessory action cannot be decided upon grounds relating to the right itself.

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A possessory right is extinguished, if the possessor abandons the intention to possess, or if he loses the detention^[4] of the thing, unless he brings an action for the recovery of possession.

If the possession is held through a representative, the possessory right is extinguished:—

1. If the principal abandons the intention to have the representative hold possession; ​
2. If the representative expresses to the principal his intention, thereafter to hold for himself or for a third person;
3. If the representative loses the detention of the thing possessed.

A possessory right is not extinguished by the extinction of the authority of the representative.

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If a person exercises a property right with the intention to have it for himself, the provisions of this Chapter apply correspondingly.

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The owner has the right, subject to the ​restrictions imposed by law or regulations, freely to use the thing, to take the profits of it and to dispose of it.

The ownership of land, subject to the restrictions imposed by law or regulations, extends above and below the surface.

If several persons divide a building among themselves, so that each owns a part of it, those parts of the building and its appurtenances which are used in common, are presumed to be owned in common.

The expenses of repairs of the parts held in common, and charges affecting such parts, are to be borne in proportion to the values of the shares of the co-owners.

If an owner of land erects or repairs any wall or building on or near the boundary line, he may make use of adjoining land so far as necessary for the purposes of such erection or repairs; but he cannot enter upon the dwelling house of a neighbour without the latter’s consent.

If in such case the neighbour sustains any injury therefrom, he may claim compensation.

If land is so surrounded by other land that it has no access to the public highway, the owner of the former land may pass over the latter land to reach the highway.

The same applies, if access to the highway can only be had over a lake, marsh, river or canal, or the ​sea, or if there is a steep slope with a considerable difference of level between the land and the highway.

In the cases mentioned in the preceding article the locality of the way and the manner of its construction must be so chosen as to meet the needs of the person entitled thereto, and at the same time to cause as little injury as possible to the surrounding land.

If necessary, the person entitled may construct a road for passage.

The person entitled to passage must pay a compensation for any injury arising to the servient land. Such compensation, except for damage done by the construction of a road, can be made by annual payments.

If in consequence of a partition of land a part thereof is left without access to the highway, the owner of such part has a right of passage to the highway only through land owned by the other persons who were parties to the partition. In such case no compensation need be paid.

These provisions apply correspondingly, if the owner of land alienates a part of it.

The owner of land must not obstruct the natural flow of water from adjoining land.

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If by reason of some extraordinary event the flow of the water is obstructed upon the lower land, the owner of the higher land may at his own expense construct any works necessary for the off-flow of the water.

If land is injured or endangered by works constructed upon other land for collecting, discharging or conducting water, being in bad condition, or by water accumulating, the owner of the former land may require the owner of the latter to make repairs or provide for the off-flow of the water, and, if necessary, to construct works for protection.

If in the cases mentioned in the preceding two articles there is any special custom as to defrayment of the expenses, such custom is to govern.

The owner of land must not construct any roof or other works so that rain water falls directly upon adjoining land.

The owner of land on which there is a ditch or other water course must not change the direction or the width of the water course, if the opposite bank belongs to another person.

If both banks belong to the owner of the land on which the water-course is, he may change its direction ​or width, but the water must be restored to its natural course at the place of exit.

If in such a case there is a different custom, such custom is to govern.

The owner of land, in order to drain wet land or to get rid of waste water used for domestic, agricultural or industrial purposes, may conduct water through lower land to a public highway, water course or drain; but the locality and manner of construction of the conduit must be so chosen as to do the least possible damage to the lower land.

The owner of land may use for the passage of water works constructed by the owner of any higher or lower land.

A person who so uses works constructed by another must bear the expenses of their construction and preservation in proportion to the benefit which he derives therefrom.

If the owner of land on which there is a water course has occasion to construct a dam, he may join it to the opposite bank; but he must pay compensation for any damage arising therefrom.

If a part of the land on which the water course is, belongs to the owner of the opposite bank, the latter may also use the dam. In such case the expenses are to be apportioned according to the provisions of the preceding article.

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The owner of land may at the joint expense of himself and the owner of the adjoining land set up things to mark the boundary.

The neighbours must bear equally the expenses of constructing and maintaining the boundary marks; but the expense of a survey is to be divided in proportion to the areas of the respective lands.

If between two buildings belonging to different owners there is land which is not built upon, either owner has a right to set up a fence on the boundary line at their joint expense.

If the parties cannot agree, the fence shall be made of boards or bamboos and shall be six shaku high.

Both neighbours must bear the expense of the construction and preservation of the fence equally.

Either of the neighbours has the right to make the fence of better materials or higher than is provided in Art. 225, 2, but the additional expense of doing so he must bear himself.

If there is a custom different from the provisions of Arts. 225–227, such custom is to govern.

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Boundary marks, fences, walls and ditches made on the boundary line are presumed to be owned in common by the two neighbours.

If a wall standing on a boundary line forms a part of a building, the provisions of Art. 229 do not apply.

Nor do they apply to that portion of a wall between two buildings of unequal height, which overtops the lower building, unless it is a wall built for protection against fire.

Each neighbour has a right to carry up a common wall higher, but if the wall cannot bear such structure, he must strengthen or rebuild it at his own expense.

The addition made to the height of the wall under the foregoing provisions is in the sole ownership of the maker.

If in the case mentioned in the preceding article the neighbour is injured, he may claim compensation.

If the branches of bamboos or trees on adjoining land extend over the boundary line, the owner of such bamboos or trees may be required to cut them off.

If the roots of bamboos or trees on adjoining land extend over the boundary line, they may be cut off and taken.

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Buildings must not be erected at a distance of less than one shaku five sun from the boundary line.

If a person is erecting a building in contravention of the foregoing provision, the owner of the neighbouring land may have it stopped or changed; but if a year has elapsed since the commencement of the building, or if the building has been completed, he can only claim damages.

A person who makes at a distance of less than three shaku from the boundary line a window or veranda which overlooks the curtilage of a dwelling house, must provide a screen.

The distance is computed perpendicularly to the boundary line from that point of the window or veranda which is nearest to the neighbouring land.

If in the cases mentioned in Arts. 234 and 235 there is a different custom, such custom is to govern.

If a well, a cistern, a cesspool or a receptacle for manure is dug, it must not be at a distance of less than six shaku from the boundary line; or if a pond, a cellar or a privy vault is dug, it must not be at a distance of less than three shaku from the boundary line.

Water pipes must not be laid or ditches dug at a distance of less than one half of their depth from the boundary line; but in no case need the distance be more than three shaku.

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A person who makes any one of the works mentioned in Art. 237 near to the boundary line, must use due care to prevent the earth or sand from caving in or the water or filth from percolating through.

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The ownership of a movable thing which has no owner is acquired by possessing it with the intention of being owner.

An immovable thing which has no owner falls to the ownership of the State.

The finder of a lost article acquires the ownership of it, if the owner cannot be ascertained within one year after public notice has been given according to the provisions contained in special laws.

The finder of hidden property acquires the ownership of it, if the owner cannot be ascertained within six months after public notice has been given according to the provisions contained in special laws. But if it is found in a thing belonging to another, the ​finder and the owner of such thing acquire the ownership in equal shares.

The owner of an immovable thing acquires the ownership of a thing which is attached to it as an accessory; but this does not affect the rights of a person who by virtue of a special title has attached the thing to the other.

If several movable things belonging to different owners are attached to each other so that they cannot be separated without injury, the ownership of the thing formed by the combination belongs to the owner of the principal thing. The same applies, if separation can be made only at an excessive cost.

If among movable things so attached together there is no distinction of principal and accessory, the owners of the separate things become co-owners of the thing formed by the combination in proportion to the values which the separate things had at the time of attachment.

The provisions of the two preceding articles apply correspondingly, when two things belonging to dfferent owners are mixed together so that distinction is impossible.

If a person has worked up a movable thing of ​another,^[5] the product belongs to the owner of the materials; but if the value created by the work largely exceeds the value of the materials, the worker acquires the ownership of the product.

If the worker has supplied a part of the materials, he acquires the ownership of the product only in case the value of the materials supplied by him together with the value of his work exceeds the value of the materials supplied by the other.

If the ownership of a thing is extinguished under the provisions of Arts. 242–246, all other rights in the thing are also extinguished.

If the owner of such a thing becomes the owner of the thing created by combination, mixture or specification, the rights mentioned in the preceding paragraph continue as to the new thing; if he becomes co-owner, they continue as to his portion.

A person, who has suffered a loss by the application of the provisions of any of the preceding six articles may claim compensation according to the provisions of Arts. 703 and 704.

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Each co-owner may use the whole of the thing held in common in proportion to his share.

It is presumed that the shares of the co-owners are equal.

No co-owner has the right to make any alteration in the thing held in common without the consent of the other co-owners.

Except in the case mentioned in Art. 251, matters relating to the management of the thing held in common are decided by the majority in value of the co-owners, but each co-owner has the right to do acts of preservation.

Each co-owner must pay the expenses of the management of the thing held in common, and must bear the charges upon it, in proportion to his share.

If one co-owner neglects to perform these obligations for one year, the other co-owners have a right to acquire his share on payment of a reasonable compensation.

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If an obligation exists in favour of one co-owner against another in regard to the thing held in common, the former may exercise his right against a singular successor of such other co-owner.

If a co-owner renounces his share or dies without an heir, his share accrues to the others.

Each co-owner has a right to demand partition of the thing held in common, but it may be provided by contract that partition shall not be made for a period not exceeding five years.

This contract may be renewed, but its duration from the time of renewal must not exceed five years.

The provisions of the preceding article do not apply to such things held in common as are mentioned in Arts. 208 and 229.

If the co-owners cannot agree, application may be made to the court for partition,

If in such case partition of the thing itself cannot be made, or if there is reason to apprehend that by partition the value of the thing would be considerably diminished, the court may order the thing to be sold by auction.

If an obligation exists in favour of one co-owner ​against another relating to the co-ownership, the former may at the time of partition claim performance out of the share falling to his debtor.

The creditor may, if necessary for such performance, demand a sale of the part of the thing held in common falling to his debtor’s share.

A person who has a right in the thing held in common, or any creditor of a co-owner, may at his own expense intervene in the partition.

If in disregard of an application for intervention made according to the provisions of the preceding paragraph, partition is effected without waiting for the intervention, the partition cannot be set up against the person who made the application for intervention.

Each co-owner is bound in proportion to his share by the same warranties as a seller in respect to the things which the other co-owners have received under the partition.

After the partition each party must preserve all documents relating to the the thing which he has received.

Documents relating to a thing partitioned among all or several of the co-owners must be preserved by the person who has received the largest share.

If there is no such person, the parties to the partition must upon consultation appoint a custodian.

If they cannot agree, he must be appointed by the court.

​The custodian of a document must on demand allow the use of the document to the other parties to the partition.

As to an iriaiken^[6] which has the nature of co-ownership the provisions of this Section apply in addition to the customs of the particular district.

The provisions of this Section apply correspondingly, where several persons hold in common a property right other than ownership, except as otherwise provided by law or regulations.

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A superficiary has the right to use another person’s land for the purpose of owning thereon structures or bamboos and trees.

If a superficiary is bound to pay a fixed ground ​rent to the owner of the land, the provisions of Arts. 274–276 apply correspondingly.

Also the provisions as to the contract of hiring apply correspondingly to the rent.

The provisions of Arts. 209–238 apply correspondingly to the relations between several superficiaries and between a superficiary and the owner of the land; but the presumption mentioned in Art. 229 applies to a superficiary only as to works which have been constructed after the creation of the superficies.

If no time for the duration of the superficies has been fixed in the act by which it was created, and there is no special custom to the contrary, the superficiary may surrender his right at any time; but if he is bound to pay a ground rent, he must give notice at least one year beforehand or pay one full year’s rent.

If the superficiary does not surrender his right according to the foregoing provisions, the court may on the application of a party interested fix the duration of the right at from twenty to fifty years, taking into consideration the kind and condition of the structures or bamboos and trees, as well as the circumstances existing at the time when the right was created.

At the termination of the superficies the superficiary, on restoring the land to its former condition, may take away structures or bamboos and trees. But if the owner of the land gives notice that he desires to buy such things, and offers their present ​value, the superficiary cannot refuse such offer except for some just reason.

If there is a custom different from the provisions of the preceding paragraph, such custom is to govern.

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An emphyteuta has a right to carry on agriculture or cattle raising on the land of another on payment of a rent.

An emphyteuta must not make any change which will cause permanent damage to the land.

An emphyteuta may assign his right, or may let the land for the purpose of agriculture or cattle raising within the duration of his right; unless that has been forbidden by the act of creation of the right.

As to the duties of the emphyteuta, in addition to the provisions of this chapter and to any provisions contained in the act of creation, the rules relating to hiring apply correspondingly.

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Even though the emphyteuta suffers a loss of profits by vis major, he has no claim for the remission or reduction of his rent.

If the emphyteuta because of vis major receives no profits at all for three consecutive years or more, or for five consecutive years or more receives only a profit which is less than his rent, he may surrender his right.

If the emphyteuta fails to pay his rent for two consecutive years or is adjudged bankrupt, the landlord may claim the extinguishment of the emphyteusis.

If there is any custom different from the provisions of the preceding six articles, such custom is to govern.

The duration of an emphyteusis is from twenty to fifty years. If it is created for a longer period than fifty years, it is reduced to fifty years.

An emphyteusis may be renewed, but not for more than fifty years from the time of renewal.

If the period of duration has not been fixed in the act of creation, it is, except so far as there is a different special custom, to be thirty years.

The provisions of Art. 269 apply correspondingly to an emphyteusis.

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The holder of a servitude has a right to use another person’s land for the benefit of his own land in accordance with the purpose specified in the act of creation; but the provisions of Chapter III, Section I relating to public welfare must not be contravened.

The servitude, being appurtenant to the ownership of the dominant land, is transferred with it, and is the subject of rights which others have in the dominant land, unless otherwise provided in the act of creation.

A servitude cannot be assigned or made the subject of other rights apart from the dominant land.

One co-owner cannot have a servitude existing for the benefit of or in the land extinguished as to his part.

If land is partitioned, or a part of it alienated, the servitude exists for or in each part, unless it from its nature relates only to some particular part of the land.

Only a continuous and visible servitude can be acquired by prescription.

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If one co-owner has acquired a servitude by prescription, such acquisition enures to the benefit of all. the co-owners.

An interruption of prescription against co-owners is effective only if it is made against all the co-owners who exercise the servitude.

If there are two or more co-owners exercising the servitude, and there is a cause for the suspension of prescription in regard to one co-owner, prescription will nevertheless continue to run in favour of all.

If on land subject to a servitude for the use of water there is not sufficient water for the requirements of the dominant and the servient land, the water is to be used first for domestic purposes according to the requirements of both pieces of land and the remaining water for other purposes. But this rule does not apply, when it has been otherwise provided by the act of creation.

If two or more servitudes for the use of water have been created in the same servient land, the holder of a later servitude must not interfere with the use of the water by the holder of a prior servitude.

If the owner of the servient land takes upon himself, either by the act of creation or by a special agreement, a duty to build or repair structures at his own expense for the exercise of a servitude, such duty devolves upon the singular successor of the owner of the servient land.

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The owner of the servient land may at any time free himself from the duty mentioned in the preceding article by abandoning to the holder of the servitude the ownership of such portion of the land as is necessary for the servitude.

The owner of the servient land may use structures put upon his land for the purposes of the servitude, but only so as he does not thereby interfere with the exercise of the servitude.

In such case the owner of the servient land must bear a part of the expense of the construction and preservation of the structures in proportion to the benefit accruing to him therefrom.

If the possessor of servient land has exercised his possessions under the conditions necessary for acquisitive prescription, the servitude is extinguished by prescription.

The extinctive prescription mentioned in the preceding article is interrupted by the holder of the servitude exercising his right.

The period for extinctive prescription specified in Art. 167, 2 is computed, as to a discontinuous servitude from the time when the holder exercised it last, and as to a continuous servitude from the time when a fact interfering with the exercise of the servitude occurred.

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If the dominant land belongs to two or more co-owners, and an interruption or suspension of the prescription occurs in favour of one of them, such interruption or suspension takes effect also in favour of the other co-owners.

If the holder of a servitude omits to exercise a part of his right, such part only is extinguished by prescription.

As to an iriaiken^[7] not having the nature of co-ownership the custom of each locality is to govern; also the provisions of this Chapter apply correspondingly.

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If the possessor of a thing belonging to another has an obligation in his favour relating to the thing possessed, he may retain the thing, until the obligation is performed, unless the obligation is not yet due.

The foregoing provision does not apply, if the possession began by an unlawful act.

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The lienholder may exercise his right against the whole of the thing retained, until the obligation has been wholly performed.

The lienholder may take the fruits of the thing retained, and may apply them to the performance of the obligation in preference to other creditors.

Such fruits must first be applied upon the interest on the obligation, and if there is any surplus, that must be applied upon the principal.

The lienholder must keep the thing retained with the care of a good manager.

The lienholder must not use or let the thing retained, or dispose of it by way of security, without the consent of the debtor; but this does not apply to such use as is necessary for the preservation of the thing.

If the lienholder acts contrary to these provisions, the debtor may claim the extinguishment of the lien.

If the lienholder incurs necessary expenses in respect to the thing retained, he may require the owner to reimburse him.

If the lienholder incurs beneficial expenses in respect to the thing retained, and an increase in the value of the thing therefrom remains in existence, he may require the owner to pay either the amount of the expenses or such increased value at the latter’s option; ​but the court may on the application of the owner allow him a reasonable time for doing so.

The exercise of the right of lien does not prevent the running of extinctive prescription against the obligation.

The debtor may claim the extinguishment of the right of lien on giving proper security.

A lien is extinguished by the loss of possession of the thing; but this does not apply to the case where the thing retained is let or pledged according to the provisions of Art. 298, 2.

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A holder of a preferential right has according to ​the provisions of this law or other laws a right in the property of his debtor to receive therefrom performance of an obligation due to him in preference to other creditors.

A preferential right can also be exercised against money or other things which the debtor is to receive by reason of the sale, letting or loss of the subject of the right or damage to it; but the holder of the preferential right must make a judicial seizure of such money or thing, before it is paid or delivered.

This applies to the consideration for a real right which the debtor has created in the subject of the preferential right.

The provisions of Art. 296 apply correspondingly to preferential rights.

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A person in whose favour an obligation exists based ​upon any of the following grounds has a preferential right in the whole property of the debtor:—

1. Expenses for the common benefit;
2. Funeral expenses;
3. Wages of employees;
4. Supplies of the daily necessaries of life.

The preferential right for expenses for the common benefit is for expenses incurred for the common benefit of the creditors in regard to the preservation, liquidation or distribution of the debtor’s property.

If any such expense was not incurred for the benefit of all the creditors, the preferential right only exists as against those creditors for whose benefit it was incurred.

The preferential right for funeral expenses is for such expenses as are accordant to the station in life of the debtor.

This preferential right exists also for such funeral expenses incurred by the debtor as are accordant to the station in life of a relative or a member of his house whom the debtor was bound to support.

The preferential right on account of wages of employees is for wages due to an employee of the debtor for six months back; but the amount is limited to fifty yen.

The preferential right on account of the supply of ​the daily necessaries of life is for supplies for six months back of food, drink, fire wood, charcoal and oil, necessary for the living of the debtor, of relatives and members of his house, who live with him and whom he is bound to support, and of their servants.

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A person in whose favour an obligation exists based upon one of the following grounds has a preferential tight in particular movables of the debtor:—

1. Hiring of an immovable;
2. Lodging in an inn;
3. Transportation of travellers or goods;
4. Official misconduct by public officers;
5. Preservation of movables;
6. Sale of movables;
7. Supply of seeds, young plants and manure;
8. Agricultural or industrial services.

The preferential right on account of the hiring of an immovable is for the hire of the immovable and for other obligations of the hirer connected therewith, and is in the movable things of the hirer.

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The preferential right of the lessor of land is in such movables as have been brought by the lessee upon the land or into buildings subservient to the use of the land, or as are designed for the use of such land, and is in such fruits of the land as are in the possession of the lessee.

The preferential right of the lessor of a building is in such movables as have been brought into the building by the lessee.

If the lease is assigned, or there is a sub-lease, the preferential right of the original lessor extends to the movables of the assignee or sub-lessee. The same applies to the money which the assignor or the sub-lessor is to receive.

In case of a general liquidation of the property of the lessee the preferential right of the lessor is only for the rent of the last preceding, the current and the next following rent period and for other obligations, as well as for damages which have arisen during the last preceding and the current rent period.

If the lessor has received security-money, he has a preferential right only for so much of the obligation as is not performed out of the security-money.

The preferential right on account of lodging in an inn is for the charges for the lodging of a traveller, his ​suite and his beasts of burden, as well as for charges for food and drink, and is in the baggage which is in the inn.

The preferential right on account of transportation is for charges for the transportation of a traveller or of goods and for incidental expenses, and is in all goods in the hands of the carrier.

The provisions of Arts. 192–195 apply correspondingly to the preferential rights mentioned in the preceding seven articles.

The preferential right on account of security given by a public officer is for any obligation arising from a default of a public officer in the performance of his functions, and is in such security.

The preferential right on account of the preservation of a movable is for the expense of the preservation of a movable thing, and is in such thing.

This preferential right exists also for necessary expenses incurred for the purpose of having a right relating to a movable preserved, acknowledged or enforced.

The preferential right on account of the sale of a movable is for the purchase money of a movable and interest thereon, and is in such movable.

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The preferential right on account of the supply of seeds, young plants or manure is for the price of seeds, young plants or manure and interest thereon, and is in the fruits which have grown on the land for which those things have been used within one year after their use.

The preferential right above mentioned is also for the supply of silkworm eggs or mulberry leaves used for feeding the worms, and is in the things produced from the eggs and leaves.

The preferential right on account of agricultural and industrial services is, as to an agricultural labourer for wages for one year back, and as to an industrial labourer for wages for three months back, and is in the fruits or manufactured things produced by his labour.

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A person in whose favour an obligation exists based upon one of the following grounds has a preferential right in particular immovables of the debtor:—

1. Preservation of an immovable;
2. Work done upon an immovable;
3. Sale of an immovable.

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The preferential right on account of the preservation of an immovable is for the expense of preservation of an immovable, and is in the thing preserved.

In that case the provisions of Art. 321, 2 apply correspondingly.

The preferential right on account of work done upon an immovable is for the charges for work done upon an immovable of the debtor by a builder, a gishi^[9] or a contractor, and is in the immovable.

This preferential right exists only if there is a present increase of the value of such immovable due to such work, and is only in such increased value.

The preferential right on account of the sale of an immovable is for the purchase money and interest thereon, and is in the immovable.

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If general preferential rights conflict, their precedence is according to the order in Art. 306.

If a general preferential right conflicts with a special ​preferential right, the latter takes precedence; but the preferential right on account of expenses for the common benefit takes precedence as against all creditors who are benefited thereby.

If preferential sights in the same movable conflict, the order of their precedence is as follows:—

1. The preferential right on account of the hiring of an immovable, of lodging in an inn and of transportation;
2. The preferential right on account of the preservation of a movable; but if there are several persons entitled as preservers, a later preserver takes precedence of an earlier one;
3. The preferential right on account of the sale of a movable, of the supply of seeds, young plants or manure, and of agricultural and industrial services.

If a person who has a preferential right of the first rank knew at the time when he acquired his obligation that other persons had preferential rights of the second or third rank, he cannot exercise his right of precedence against them.

The same applies to a person who has preserved a thing for the benefit of a person having a preferential right of the first rank.

As to fruits, an agricultural labourer has the first rank, a supplier of seeds, young plants and manure the second, and the lessor of the land the third.

If special preferential rights in the same immovable ​conflict, their precedence is according to the order in Art. 325.

If successive sales have been made of the same immovable, the order of precedence of the sellers is according to the times of the sales.

If several persons have preferential rights of the same rank in the same thing, each is to receive performance in proportion to the amount of his obligation.

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A preferential right in a movable cannot be exercised after the debtor has delivered the thing to a third person who has acquired it from him.

If a preferential right conflicts with a pledge of a movable, the pledgee has the same right as the holder of a preferential right of the first rank mentioned in Art. 330.

A person who has a preferential right must receive performance first out of property other than ​immovables, and only in case that is insufficient can he receive performance out of immovables.

As to immovables he must receive performance first out of such immovables as are not the subjects of special rights of security.

If a person who has a general preferential right omits to intervene in a distribution of property according to the foregoing provisions, he is forbidden to exercise his preferential right against a third person whose right is registered, to the extent of what he would have received on such intervention.

The provisions of the three preceding paragraphs do not apply, if the proceeds of immovable property are distributed before those of other property, or if the proceeds of an immovable which is the subject of a special security are distributed before the proceeds of other immovable things.

A general preferential right, even though not registered in respect to an immovable, may be set up against any creditor who has no special security; but this does not apply against a third person whose right is registered.

A preferential right on account of the preservation of an immovable retains its effect, if it is registered as soon as the act of preservation is completed.

A preferential right on account of work done upon an immovable retains its effect, if a provisional ​estimate of the cost is registered before the work has begun. If, however, the cost of the work exceeds the provisional estimate, there is no preferential right for the excess.

The increase of value of an immovable arising from the work done upon it, is to be estimated by experts appointed by the court, and at the time of the intervention in the distribution.

A preferential right registered in accordance with the provisions of the preceding two articles can be exercised in preference to a mortgage.

A preferential right on account of the sale of an immovable retains its effect, if at the time when the contract of sale is made, the fact that the price or the interest thereon has not been paid is registered.

As to the effect of a preferential right, in addition to the provisions of this Section the provisions as to mortgages apply correspondingly.

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A pledgee has a right to possess the thing which he has received from the debtor or from a third person as security for an obligation existing in his favour, and to receive performance out of it in preference to other creditors.

A thing which is not assignable cannot be made the subject of a pledge.

The creation of a pledge takes effect on the delivery to the creditor of the thing forming its subject.

The pledgee cannot have the pledgor hold the possession of the thing pledged in his place.

The pledge is security for the principle, interest ​and any penalty, for the costs of enforcement of the right of pledge, for the expenses of the preservation of the thing pledged and for damages arising from nonperformance of the obligation or from latent defects in the thing pledged; except so far as it is otherwise provided in the act of creation.

The pledgee is entitled to retain the possession of the thing pledged, until he has received performance of the obligation mentioned in the preceding article; but he cannot set up this right against a creditor who has a right of precedence over him.

The pledgee may on his own responsibility repledge the thing pledged within the time of the duration of his own right. In that case, however, he is responsible for any damage caused to the thing by vis major, which would not have happened but for the repledge.

The pledgor cannot, either by the act of creation or by an agreement made before the obligation is due, in order to make performance to the pledgee, agree that the latter shall become the owner of the thing pledged or shall dispose of it without complying with the requirements of the law.

The provisions of Arts. 296–300 and of Art. 304 apply correspondingly to a pledge.

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A person who has given a pledge as security for the obligation of another is entitled to recourse against the debtor according to the provisions of law as to suretyship, if he has performed the obligation or has lost the ownership of the thing pledged in consequence of the enforcement of the pledge.

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The pledgee of a movable cannot set up his pledge against a third person, unless he continues to hold possession of the thing.

If the pledgee of a movable is deprived of the possession of the thing, he can recover it only by an action for the recovery of possession.

If the obligation existing in favour of the pledgee is not performed, he may, provided there is a reasonable ground for doing so, apply to the court to have the thing pleged at once appropriated for the performance according to a valuation by experts. The pledgee ​must give previous notice of such application to the debtor.

If several pledges for different obligations have been created in the same movable, their rank is according to the times of their creation.

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The pledgee of an immovable may use and take the profits of the immovable pledged in accordance with its established manner of use.

The pledgee of an immovable is bound to pay the expenses of its management and to bear the charges upon it.

The pledgee of an immovable cannot demand interest upon his obligation.

The provisions of the preceding three articles do not apply, if it is otherwise provided by the act of creation of the pledge.

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The duration of the pledge of an immovable may not exceed ten years. If a longer period is fixed, it is to be reduced to ten years.

The pledge of an immovable may be renewed, but not for more than ten years from the time of renewal.

In addition to the provisions of this Section, the provisions of the next Chapter apply correspondingly to the pledge of an immovable.

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Any property right may be the subject of a pledge.

In addition to the provisions of this Section, the provisions of the last three Sections apply correspondingly to such a pledge.

When an obligation is pledged which is evidenced by a written instrument, the pledge is effected by the delivery of the instrument.

When an obligation in favour of a specified person is ​pledged, such pledge cannot be set up against the debtor on such obligation or another third person, unless notice of the creation of the pledge is given to such debtor in accordance with the provisions of Art. 467.

The foregoing provisions do not apply to name-shares.^[10]

If a name-debenture is pledged, such pledge cannot be set up against the commercial company or against other third persons, unless the creation of the pledge is registered in the company’s books in accordance with the provisions relating to the assignment of debentures.

If an instrument drawn to order is pledged, such pledge cannot be set up against third persons, unless its creation is noted upon the instrument itself in the manner of an endorsement.

The pledgee may collect directly anything that is due upon the obligation pledged.

When the obligation is for money, the pledgee may collect only such portion as corresponds to the amount of his own obligation.

If the obligation pledged is due before the obligation in favour of the pledgee, the latter may require the debtor on the obligation pledged to deposit its amount, in which case the pledge exists in the money deposited.

​When an obligation which is not for money is pledged, the pledgee has a right of pledge in the thing received in performance thereof.

In addition to the manner provided in the preceding article, the pledgee may enforce the pledge also in the manner provided for the enforcement of obligations in the Code of Civil Procedure.

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A mortgagee has a right to receive, in preference to other creditors, performance out of the immovable which the debtor or a third person, without transferring its possession, has made security for an obligation existing in favour of the mortgagee.

A superficies or emphyteusis can also be made the subject of a mortgage. In such case the provisions of this Chapter apply correspondingly.

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The mortgage covers all things which are so connected with the immovable mortgaged as to form one thing with it, except buildings standing on mortgaged land. But this does not apply, if it is otherwise provided in the act of creation, or if the creditor has a right to rescind the act of the debtor according to the provisions of Art. 424.

The provisions of the preceding article do not apply to fruits, except for the time after a seizure has been made under legal process upon the immovable mortgaged, or after the notice specified in Art. 381 has been given to a third person who has purchased the immovable.

This proviso, however, applies only if the seizure of the immovable mortgaged is made within one year after the third purchaser has received the notice mentioned in Art. 381.

The provisions of Arts. 296, 304 and 351 apply correspondingly to mortgages.

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If the same immovable has been mortgaged to secure several different obligations, the rank of such mortgages is according to their respective times of registration.

If a mortgagee is entitled to interest or other money payable by instalments, he can exercise his mortgage only for payments which have fallen due within the preceding two years.

If, however, as to any earlier instalment a special registration has been made after its falling due, the mortgage may be exercised as to it from the time of registration.

A mortgagee may make his mortgage security for an obligation in favour of another person against him, or he may assign or waive his mortgage or the rank thereof in favour of another creditor of the same debtor.

If in any such case the mortgagee has made disposals of his right in favour of several persons, the rights of such persons rank according to the respective times when notes of such facts were added to the registry of the mortgage.

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If in any case mentioned in the preceding article the principal debtor has neither been notified according to the provisions of Art. 467 of the disposal of the mortgage nor consented to it, such disposal cannot be set up against him, a surety, the mortgagor or a successor of any of them.

If the principal debtor after receiving such notice or after such consent performs without the consent of the person in whose favour such disposal was made, he cannot set up such performance against the latter or his successor.

If a third person who has bought the ownership of or a superficies in the immovable mortgaged, pays the price to the mortgagee at the latter’s request, the mortgage is extinguished in favour of the buyer.

A person who has purchased^[11] the ownership of or a superficies or emphyteusis in an immovable may, under the provisions of Arts. 382–384, remove a mortgage by paying or depositing a sum proposed to the mortgagee and assented to by him.

The principal debtor, a surety or a successor of either of them has not the right to remove a mortgage.

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A third person who has purchased an immovable subject to a condition precedent has not the right to remove a mortgage pending the condition.

If a mortgagee intends to enforce his mortgage, he must give previous notice thereof to the purchaser mentioned in Art. 378.

A purchaser may remove a mortgage at any time, before he receives the notice mentioned in the preceding article.

When the purchaser has received the notice mentioned in the preceding article, he can remove a mortgage only on condition that he serves within one month the documents specified in Art. 383.

A third person who has purchased one of the rights mentioned in Art. 378, after the notice mentioned in Art. 381 has been given, can remove a mortgage only within the period fixed for the purchaser mentioned in the preceding paragraph.

If a purchaser intends to remove a mortgage, he must serve upon each registered creditor the following documents:—

1. A document specifying the title and the date of his purchase, the name and the domicile of the grantor and of the purchaser, the nature and locality of the immovable mortgaged, the price and other charges assumed by the purchaser; ​
2. A copy of the registry book, so far as it relates to the immovable; but it is not necessary to insert therein those entries which relate to rights already extinct;
3. If the creditors have not in compliance with the provisions of Art. 384 within one month demanded the sale of the immovable by auction for the sake of obtaining a higher price, a document stating that the purchaser will in accordance with the rank of the obligations pay or deposit the price mentioned under No. 1 or a specified amount of money.

A creditor who does not within one month after having received the service mentioned in the preceding article demand a sale by auction for the sake of obtaining a higher price, is considered to have assented to the offer of the purchaser.

A creditor who demands a sale by auction for the sake of obtaining a higher price must state that he will himself buy the immovable at a price of one tenth higher than that offered by the purchaser in case such price or a higher price is not obtained at the auction.

In such case the creditor must give security for the price and expenses.

A creditor who demands a sale at auction according to Art. 384, must within the period specified in the preceding article give notice thereof to the debtor and the grantor of the mortgaged immovable.

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A creditor who has demanded a sale by auction according to Art. 384 can withdraw his demand only with the consent of the other registered creditors.

If the mortgagee has not within the period specified in Art. 382 received payment from the debtor or a notice for the removal of the mortgage, he may demand a sale by auction of the immovable mortgaged.

If the land and the buildings on it belong to the same owner, but the mortgage is on the land only or on the buildings only, it is considered that the mortgagor has created a superficies for the case of a sale by auction.

In such case the ground rent is to be fixed by the court on the application of any party interested.

If the mortgagor after the creation of the mortgage has erected a building on the land mortgaged, the mortgagee may have such building sold with the land; but he can exercise his right of priority only against the price obtained for the land.

The purchaser^[12] may bid for the immovable at the auction.

If the purchaser has incurred necessary or beneficial ​expenses in respect to the immovable mortgaged, he has a prior claim for compensation out of the price of the immovable according to the distinctions stated in Art. 196.

If the creditor has a mortgage on several immovables for the same obligation, and the price of all of them is to be distributed at the same time, the burden of the obligation is apportioned according to the respective values of such immovables.

If the price of only one of such immovables is to be distributed at one time, the mortgagee may claim performance of his entire obligation from that price. In that case the mortgagee who is next in rank may exercise the rights of the prior mortgagee in his stead to the extent of the amount which the latter would have received from the other immovables according to the provisions of the preceding paragraph.

A person who exercises the right of mortgage in another’s stead according to the provisions of the preceding article, may have a note of such fact added to the registry of the mortgage.

A mortgagee is entitled to performance of his obligation from other property only so far as he is not able to obtain it from the price of the immovable mortgaged.

This provision does not apply, if the price obtained for other property is to be distributed before the price of the immovable mortgaged; but in order to secure that the mortgagee receives payment according to ​the provisions of the preceding paragraph the other creditors may demand that the amount which will come to him in the distribution shalt be deposited.

A lease which does not exceed the duration specified in Art. 602 may be set up against the mortgagee even though registered after the mortgage; but if such lease causes damage to the mortgagee, the court may on his application order its cancellation.

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A mortgage is extinguished by prescription as to the debtor and the mortgagor only on the extinguishment of the obligation secured by it.

If a person other than the debtor or mortgagor has possession of the immovable mortgaged under the conditions necessary for acquisitive prescription, the mortgage is extinguished thereby.

A person who has mortgaged a superficies or emphyteusis cannot set up the surrender of his right against the mortgagee.

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