1896ja Book3 Chapter02 Title03 Part02
From Thai Codification Codes of 1925
- 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 II. Contracts.
Title III. Sale (Emptio venditio).
Part II. Effect of a Sale.
- When a right belonging to another person is made the subject of a sale, the seller is bound to acquire the said right and transfer it to the purchaser.
《References by de Becker》
- (In reference vide Art. 555; also Art. 434 of the German Civil Code.)
- In the case of the preceding Article if the seller is unable to acquire the right sold and transfer it to the purchaser, the latter may rescind the contract; but if he knew at the time of the contract that the right did not belong to the seller, he cannot demand compensation for damage.
《References by de Becker》
- (In reference vide Arts. 415, 541, 542, 543 , 545 , 548 and 562; also Art. 440 of the German Civil Code.)
- [I] If at the moment of entering into the contract the seller did not know that the right sold did not belong to him, if he cannot acquire the right and transfer it to the purchaser, he may rescind the contract on compensating the damage (caused to the purchaser).
- [II] In the case of the preceding Paragraph, if the purchaser at the moment of the contract knew that the right purchased did not belong to the seller, the latter may rescind the contract by merely notifying the purchaser that he is unable to transfer the right sold.
《References by de Becker》
- (In reference vide Arts. 540, 544 - 548 and 560)
- [I] If the seller is unable to transfer to the purchaser the right which is the subject of the contract because a part thereof belongs to another person, the purchaser may demand a reduction of the purchase money in proportion to the part which is wanting.
- [II] In the case of the preceding Paragraph, if the purchaser would not have purchased the remaining part only, he may, if in good faith, rescind the contract.
- [III] A demand for a reduction of the purchase money or for the rescission of the contract does not prevent a purchaser in good faith from claiming compensation for damage.
《References by de Becker》
- (In reference vide Art. 451 et. seq., 540 - 548 and 564; also Arts. 434 and 440 of the German Civil Code.)
- The rights provided in the preceding Article must be exercised within one year from the time when the fact has become known if the purchaser was in good faith, and from the time of the contract, if he was in bad faith.
《References by de Becker》
- (In reference vide Arts. 167 and 563.)
- In case the thing sold or purchased with an indication of number and quantity is found wanting in number or quantity or in case a part of the thing is already destroyed and lost at the time of the contract, the provisions of the preceding two Articles apply correspondingly if the purchaser was ignorant of such insufficiency or loss.
《References by de Becker》
- (In reference vide Arts. 563 and 564; als Art. 468 of the German Civil Code .)
- [I] In case the thing which is the subject of the sale is encumbered with a superficies, emphyteusis, servitude, lien, or pledge, the purchaser may rescind the contract if he was ignorant of the fact, but only in case the object of the contract cannot be attained on account thereof. In other cases, however, he can only demand compensation for damage.
- [II] The provisions of the preceding Paragraph apply correspondingly if a servitude declared to exist in favour of an immovable which is the subject of a sale does not exist, and when there is a registered lease on the immovable.
- [III] In the cases of the preceding two Paragraphs the rescission of the contract or the demand for compensation for damage must be made within one year from the moment when the purchaser has become aware of the facts.
《References by de Becker》
- (In reference vide Arts. 265, 270, 280, 295, 342, 601, 605, 412, et seq. 540 and 544 - 548; also Arts. 434 and 440 of the German Civil Code.)
- [I] If the exercise of a preferential right or mortgage pre-existing in the immovable which is the subject of the sale has dispossessed the purchaser of the ownership thereof, he may rescind the contract.
- [II] If the purchaser has preserved the ownership by means of making expenditures, he may demand reimbursement thereof from the seller.
- [III] In any of these cases a purchaser who has sustained damage may demand compensation.
《References by de Becker》
- (In reference vide Arts. 302 and 369; Arts. 434 and 440 of the German Civil Code.)
- [I] In case of compulsory sale by auction, the highest bidder may rescind the contract or demand a reduction from the purchase money against the debtor in accordance with the provisions of the preceding seven Articles.
- [II] In the case of the preceding Paragraph, if the debtor is insolvent, the highest bidder may demand the total or partial restitution of the proceeds against the creditors who have participated in the distribution thereof.
- [III] In the cases of the preceding two Paragraphs, if the debtor, knowing of the imperfection in the thing or right has not declared it, or if the creditor knowing the fact has demanded the sale by auction thereof, the highest bidder may demand compensation for damage against the party in fault.
《References by de Becker》
- (In reference vide Arts. 560 - 567 and 570.)
- [I] If the seller of an obligation has warranted the solvency of the debtor, he is presumed to have warranted such solvency at the time of the contract.
- [II] If the seller of an obligation which is not due has warranted the future solvency of the debtor, he is presumed to have guaranteed such solvency at the time of performance.
《References by de Becker》
- (In reference vide Arts. 466 et seq. and 572; also Art. 438 of the German Civil Code.)
- When there are hidden (latent) defects in the thing which is the subject of the sale, the provisions of Art. 566 apply correspondingly except in the case of compulsory sale by auction.
《References by de Becker》
- (In reference vide Arts. 566, 540, and 543 Paragraph 3; also Arts. 459 and 492 of the German Civil Code.)
- The provisions of Art. 533 apply correspondingly to the cases of Arts . 563 to 566 and the preceding Article.
《References by de Becker》
- (In reference vide Arts. 563 - 566 and 533; also Art. 440 of the German Civil Code. )
- Even when the seller has specially contracted that he will not assume the obligation of warranty provided in the preceding twelve Articles, he cannot avoid responsibility for facts which he knew of but which he did not declare or for the rights which he has himself created for, or assigned to, third persons.
《References by de Becker》
- (In reference vide Arts. 443 and 476 of the German Civil Code.)
- If there is a limitation of time for the delivery of a thing which is the subject of a sale, the same time is presumed to be fixed for the payment ofthe purchase money as well.
《References by de Becker》
- (In reference vide Art. 533.)
- If the purchase money is payable at the same time as the delivery of the thing which is the subject of a sale, it must be paid at the place of the delivery.
《References by de Becker》
- (In reference vide Art. 484; also Arts. 446 and 452 of the German Civil Code.)
- [I] If the thing which is the subject of a sale has produced fruits previous to its delivery, such fruits belong to the seller.
- [II] The purchaser is bound to pay interest on the purchase money from the day of delivery ; but interest need not be paid except from the arrival of the time fixed for payment of the purchase money.
《References by de Becker》
- (In reference vide Arts. 88, 89 and 404; also Art. 440 of the German Civil Code.)
- When owing to there being a third person who asserts a claim to the subject of a sale the purchaser is in danger of losing the whole or part of the right purchased, the purchaser may refuse to pay the whole or part of the purchase money in proportion to the extent of the impending loss, except when the seller has furnished reasonable security.
《References by de Becker》
- (In reference vide Art. 533.)
- If there is a registered preferential right, pledge, or mortgage in respect to an immovable purchased, the purchaser may refuse to pay the purchase money until the procedure of removal is concluded; but the seller can demand that the purchaser effect removal without delay.
《References by de Becker》
- (In reference vide Arts. 341, 361 and 378 - 384.)
- In the cases of the preceding two Articles the seller can demand the deposit of the purchase money against the purchaser.
《References by de Becker》
- (In reference vide the Law of Deposit.)
