Book2 Chapter10 Title02

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 II. REAL RIGHTS.

Chapter X. Mortgages (HYPOTHECA).

Title II. Effect of Mortgage.

Article 373.

• When mortgages are created in the same immovable for securing several obligations, the ranks of those mortgages are determined according to the priority of registration.

《References by de Becker》

• (Vide Art. 879 of the German Civil Code).

Article 374.

• When a mortgagee has the right of demanding interest or other periodical payments, he can exercise the mortgage only with regard to that which is due for the last two years before the maturity of the period of time. Even with regard to periodical payments previous thereto, there is no objection to the mortgage being exercised from the time of registration if a special registration is made subsequent to the maturity of the period of time.

《References by de Becker》

• (Law No. 36, April, 1901; and Art. 1,118 of the German Civil Code.)

Article 375.

• [I] The mortgagee may make his mortgage security for another obligation or transfer (assign) or renounce (waive) the same or its rank for the benefit of another creditor of the same debtor.
• [II] In the case of the preceding Paragraph, if the mortgagee has disposed of his mortgage in favour of several persons, the ranks of the rights of those who enjoy the advantage of such disposal are determined by the priority of the additional statements made to and noted in the registration of the mortgage.

《References by de Becker》

• (none)

Article 376.

• [I] In the case of the preceding Article, the disposal of the mortgage cannot be set up against the principal debtor, the surety, the creator of the mortgage, or their successors, unless it is notified in accordance with the provisions of Art. 467 to the principal debtor or the latter has consented thereto.
• [II] When the principal debtor has received the notification or given the consent of the preceding Paragraph, performance made without the consent of the person who receives the benefit of the disposal of the mortgage cannot be set up against such person.

《References by de Becker》

• (In reference vide Arts. 467 and 488.)

Article 377.

• When a third person who has purchased the ownership or superficies of a mortgaged immovable has paid the price to the mortgagee in accordance with the latter's demand, the mortgage is extinguished for (in favour of) such third person.

《References by de Becker》

• (none)

Article 378.

• A third person who has acquired the ownership, superficies, or emphyteusis of a mortgaged immovable may, in accordance with the provisions of Arts. 382 to 384, remove (purge) the mortgage by tendering and paying to the mortgagee an amount of money which has been assented to by the latter, or by depositing the same (in a Public Deposit Office).

《References by de Becker》

• (none)

Article 379.

• The principal debtor, the surety, or their successors cannot remove a mortgage.

《References by de Becker》

• (none)

Article 380.

• A third acquirer, subject to a suspensive condition (condition precedent) cannot remove the mortgage during the pendency of the condition.

《References by de Becker》

• (In reference vide Art. 127.)

Article 381.

• When a mortgagee wishes to enforce the mortgage he must previously notify his intention to the third acquirer mentioned in Art. 378.

《References by de Becker》

• (none)

Article 382.

• [I] A third acquirer may remove the mortgage at any time until he has received the notification of the preceding Article.
• [II] When the third acquirer has received the notification of the preceding Article, he cannot remove the mortgage unless the service of the following Article is made within one month.
• [III] A third person who has acquired any rights mentioned in Art. 378 subsequent to the notification of the preceding Article, can remove the mortgage only within the period of time during which the third acquirer of the preceding Paragraph can do the same.

《References by de Becker》

• (none)

Article 383.

• When a third acquirer wishes to remove the mortgage he must serve the following documents upon each registered creditor: -
• (1) A document stating the cause and date of acquisition, the full names and domiciles of the assignor and the acquirer, the nature and location of the mortgaged immovable, and the price and other charges borne by the acquirer;
• (2) An extract from the Register relating to the mortgaged immovable ; but the registrations relating to rights which have been already extinguished need not be stated;
• (3) A document stating that if the creditors do not demand , within one month, the sale by auction for a higher price in accordance with the provisions of the following Article, the third acquirer is ready to pay or deposit according to the ranks of the obligations the price mentioned in No. 1 or an amount of money specially fixed.

《References by de Becker》

• (none)

Article 384.

• [I] When a creditor does not, within one month of the service of the preceding Article, demand a sale by auction in order to obtain a higher price, he is deemed to have consented to the offer of the third acquirer.
• [II] The sale by auction in order to obtain a higher price must be demanded vis-a-vis the third acquirer with the additional statement that if the mortgaged immovable cannot be sold by auction at a price higher by at least ten per cent. than the sum offered by the third acquirer he himself is ready to purchase the same at a price higher by ten per cent.
• [III] In the case of the preceding Paragraph the creditor must deposit security for the purchase price and expenses.

《References by de Becker》

• (In reference vide the Law of Auction, Chapter 5.)

Article 385.

• When a creditor demands a sale by auction to obtain a higher price, he must notify the fact to the debtor and the assignor of the mortgaged immovable within the period of the preceding Article.

《References by de Becker》

• (none)

Article 386.

• A creditor who has demanded a sale by auction in order to obtain a higher price cannot annul the demand unless the consent of the other registered creditors is obtained.

《References by de Becker》

• (none)

Article 387.

• When the mortgagee neither receives performance of the obligation nor a notification for the removal from the third acquirer within the period of time fixed in Article 382, he may demand a sale by auction of the mortgaged immovable.

《References by de Becker》

• (In reference vide Art. 382 and the Law of Auction, Chapter 3.)

Article 388.

• In case a piece of land and the building thereon belong to the same owner and either the land or the buildings only are mortgaged, the mortgagor is deemed to have created a superficies in case of a sale by auction. The rent is, however, to be determined by a Court upon the demand of the parties concerned.

《References by de Becker》

• (In reference vide Art. 268.)

Article 389.

• When a mortgagor has, subsequent to the creation of the mortgage, constructed buildings on the mortgaged land, the mortgagee may sell such buildings by auction together with the land; but his preferential right can be exercised only against the proceeds of the land.

《References by de Becker》

• (none)

Article 390.

• A third acquirer may be a bidder.

《References by de Becker》

• (none)

Article 391.

• When a third acquirer has defrayed necessary expenses or beneficial expenses with regard to the mortgaged immovable he can obtain, in priority to all others, reimbursement of the same out of the proceeds of the immovable according to the provisions of Art. 196.

《References by de Becker》

• (In reference vide Art. 196.)

Article 392.

• [I] In case a creditor has a mortgage on several immovables as security for the same obligation, in his favour, and the price of all is distributed simultaneously, they share the obligation in proportion to the respective price of each immovable.
• [II] When the price of a certain immovable only is distributed the mortgagee can obtain performance of the whole of his obligation out of the price. In this case a mortgagee of the second rank can exercise his mortgage by subrogation on the other immovables up to the amount of money the payment of which is obtainable by the first mortgagee in accordance with the provisions of the preceding Paragraph.

《References by de Becker》

• (none)

Article 393.

• A person who enforces a mortgage by subrogation in accordance with the provisions of the preceding Article may have his subrogation additionally noted in the registration of his mortgage.

《References by de Becker》

• (none)

Article 394.

• [I] A mortgagee may obtain performance from the price of the other properties only with regard to that part of the obligation performance of which is not obtained from the price of the immovable mortgaged.
• [II] The provisions of the preceding Paragraph do not apply in case the price of the other properties is to be distributed previous to that of the mortgaged immovable; but any of the other creditors may demand the deposit (in a Deposit Office) of the amount of money to be apportioned to the mortgagee in order to cause him to receive payment in accordance with the provisions of the preceding Paragraph.

《References by de Becker》

• (none)

Article 395.

• A lease not exceeding the period of time fixed in Art. 602 may be set up against the mortgagee even when it is registered subsequent to the registration of the mortgage; but when the lease is injurious to the mortgagee, a Court may order the cancellation thereof upon his demand.

《References by de Becker》

• (In reference vide Art. 602.)