Book3 Chapter01 Title03 Part04

JAPANESE CIVIL CODE OF 1896

• Based on the English Translation by: J. E. de Becker (1909 – 1910). Annotated Civil Code of Japan. London: Butterworth & Co. [Available on Google Books and Archive.org: Volume 1, Volume 2, Volume 3, Volume 4]
• "INDEX TO ARTICLES" in his another work offers additional information: J. E. de Becker (1921). The Principles and Practice of Civil Code of Japan. London: Butterworth & Co. [Available on Archive.org]

• Original Version in Japanese.

BOOK III. OBLIGATIONS (or CLAIMS).

Chapter I. General Provisions.

Title III. Obligations with a Plurality of Parties.

Article 446.

• Article 446.-The surety is responsible for the performance of the obligation when the principal debtor does not perform the same.

《References by de Becker》

• (In reference vide Art. 765 of the German Civil Code.)

Article 447.

• [I] The surety's obligation includes interest, penalty for breach of contract, compensation for damage relating to the principal obligation , and all other things accessory to the said obligation.
• [II] The surety may not enter into a contract relative to the amount of penalty for breach of contract or compensation for damage except with regard to his own obligation as surety.

《References by de Becker》

• (In reference vide Arts. 448, 420, and 421; also Art. 767 of the German Civil Code.)

Article 448.

• When the burden of the surety is, in the subject or form of the obligation, more onerous than the principal obligation, it shall be reduced to the extent of the principal obligation.

《References by de Becker》

• (In reference vide Art. 447, Paragraph 2.)

Article 449.

• If the person who has guaranteed an obligation voidable on the ground of incapacity knew of the ground for avoidance at the time of the conclusion of the contract of suretyship, in case of its non-performance or avoidance he is presumed to have contracted an independent obligation with the same object as that of the principal obligation.

《References by de Becker》

• (In reference vide Art. 125, Paragraph 4; also German Civil Code, Art. 770.)

Article 450.

• [I] In case the debtor is obliged to furnish a surety, such surety must be a person who fulfils the following conditions: -
• (1) He must have full capacity;
• (2) He must have the means of payment;
• (3) He must have a domicile, or have established a provisional domicile, within the jurisdiction of the Appeal Court which has jurisdiction over the place of performance of the obligation.
• [II] When one of the conditions enumerated in No. 2 or No. 3 of the preceding Paragraph comes to be wanting after having been furnished, the creditor can then demand the replacement of the surety by another person who fulfils such conditions.
• [III] The provisions of the preceding two Paragraphs do not apply if the creditor has nominated the surety.

《References by de Becker》

• (In reference vide Art. 137 and Art. 541 et seq; also Art. 239 of the German Civil Code.)

Article 451.

• When the debtor cannot furnish a surety who fulfils the conditions enumerated in the preceding Article, he may furnish another kind of security in substitution of the surety.

《References by de Becker》

• (none)

Article 452.

• When the creditor has demanded performance of the obligation against the surety, the latter may demand that a demand shall be first made upon the principal debtor calling upon him to perform. This does not apply, however, when the principal debtor has been adjudged bankrupt or when his whereabouts is unknown.

《References by de Becker》

• (none)

Article 453.

• Even after performance has been demanded from the principal debtor in accordance with the provisions of the preceding Article, if the surety has proved that the principal debtor has means of payment and the execution is easy, the creditor must first levy execution on the property of the principal debtor.

《References by de Becker》

• (Vide German Civil Code, Arts 771 and 773; also French Civil Code, Art. 2021.)

Article 454.

• When a surety bears an obligation jointly (is bound in solido) with the principal debtor he has not the rights provided in the preceding two Articles.

《References by de Becker》

• (In reference vide Arts. 452, 453 and 458; also Art. 773 (No. 1) of the German Civil Code.)

Article 455.

• If, notwithstanding the demand of the surety in accordance with the provisions of Art. 452 and Art. 453, the creditor neglects to demand performance or make execution, and is subsequently unable to obtain total performance from the principal debtor, the surety is freed from his obligation to the extent that performance would have been obtained had the creditor at once made such demand and compulsory execution.

《References by de Becker》

• (In reference vide French Civil Code, Art. 2024.)

Article 456.

• When there are several sureties, the provisions of Art. 427 apply even though the sureties have become obligated by separate acts.

《References by de Becker》

• (In reference vide Art. 427; also Art. 769 of the German Civil Code.)

Article 457.

• [I] A demand for performance and an interruption of prescription by any other means against the principal debtor take effect against the surety also.
• [II] A surety can oppose the creditor by making a set-off of any obligation which the principal debtor has against the creditor.

《References by de Becker》

• (In reference vide Art. 147 and Art. 412, Paragraph 3; also Art. 770 (2) of the German Civil Code.)

Article 458.

• When the principal debtor bears the obligation jointly (is bound in solido) with the surety the provisions of Arts. 434 to 440 apply.

《References by de Becker》

• (none)

Article 459.

• [I] In case the surety has assumed the suretyship by reason of a mandate of the principal debtor, if he has, without any fault on his part, been adjudged to pay the creditor, paid in the place of the principal debtor, or done any other act to extinguish the obligation at his own expense, such surety has the right of demanding reimbursement against the principal debtor.
• [II] The provisions of Paragraph 2 of Art. 442 apply correspondingly to the case of the preceding Paragraph.

《References by de Becker》

• (In reference vide Art. 461, Art. 463, Paragraph 2, and Arts. 643 and 650; also Art. 775 of the German Civil Code.)

Article 460.

• When the surety has assumed the suretyship at the request of the principal debtor, he can in any of the following cases exercise in advance the right of recourse against the principal debtor.
• (1) When the principal debtor is adjudged bankrupt and the creditor does not participate in the distribution of his estate;
• (2) When the obligation is due ; but the term accorded by the creditor to the principal debtor subsequent to the conclusion of the contract of suretyship cannot be set up against the surety;
• (3) When ten years have elapsed from the conclusion of the contract of suretyship in case the time of payment of the obligation is uncertain and it is impossible to ascertain even the longest time.

《References by de Becker》

• (In reference vide Art. 649.)

Article 461.

• [I] In case the principal debtor has indemnified the surety in accordance with the provisions of the preceding two Articles, the debtor can, so long as the creditor has not obtained full performance, demand that the surety furnish him security or procure his discharge from the obligation.
• [II] In the foregoing case the principal debtor can avoid the obligation of indemnifying the surety by making a deposit, by furnishing security, or by procuring the surety's discharge from the obligation.

《References by de Becker》

• (In reference vide Arts. 459 and 460.)

Article 462.

• [I] In case a person who has become surety without the request of the principal debtor has performed the obligation, or has otherwise obtained the discharge of the principal debtor from the obligation at his own expense the principal debtor must indemnify him only in so far as he is thereby enriched at that time.
• [II] A person who has become surety against the will of the principal debtor has the right of recourse only in so far as the principal debtor is actually enriched; but if the principal debtor asserts that he had a ground of set-off previous to the time of recourse the surety can demand against the creditor the performance of the obligation which would have been extinguished by the set-off.

《References by de Becker》

• (In reference vide Art. 443, Paragraph 1, and Arts. 650 and 702; also Art. 774 of the German Civil Code.)

Article 463.

• [I] The provisions of Art. 443 apply correspondingly to a surety.
• [II] In case a person has become a surety at the request of the principal debtor, if he has, in good faith, paid or otherwise been at expense to procure the discharge, the provisions of Art. 443 also apply correspondingly to the principal debtor.

《References by de Becker》

• (none)

Article 464.

• A person who has become surety for one of the debtors of a joint obligation on an indivisible obligation has a claim for reimbursement against the other debtors only with regard to their shares in the obligation.

《References by de Becker》

• (none)

Article 465.

• [I] In case there are several sureties, if one of the sureties has, owing to the indivisibility of the principal obligation, or owing to a special contract that each surety shall pay the total amount, paid the total amount or an amount exceeding his part in the obligation, the provisions of Art. 442 to 444 apply correspondingly.
• [II] In a case other than that contemplated in the preceding Paragraph, if one of the sureties not jointly responsible for each other has paid the total amount or an amount exceeding his part of the obligation, the provisions of Art. 462 apply correspondingly.

《References by de Becker》

• (In reference vide Art. 456.)