Code is in accordance with the raison d’être of special preferential rights.
Pledge. — Pledge, or Shichiken of the Japanese Code, corresponds to nantissement of the French Code. It is a class of security in which the possession of the thing given for security is transferred lo the pledgee. It may be created in respect of movables, immovables, and rights over property. In the last case the delivery of deed or other evidence of proprietary rights takes place.
Mortgage. — Mortgage, or Tei-to-ken of the Japanese Code, corresponds to Hypothèques of the French Code. The French Code defines it to be a real right over immovables appropriated to the payment of an obligation (Article 2114). The provision of the Japanese Code may be rendered as follows: “A mortgagee has in respect of the immovable given to him as security by the debtor or a third person, without possession being transferred, the right to receive payment of his claim in advance of other creditors.” It will be seen that neither the French nor the Japanese law gives the mortgagee the right to foreclose, but only gives him power to sell the property and receive payment of the obligation out of the proceeds.
In the French law “hypothèques” are of three classes: hypothèques legales; hypothèques judiciaires; and hypothèques conventionelles. The rights of a married woman over the immovables of her husband as security for the management of her property, and the similar rights of a ward over the immovables of the guardian come under the denomination of legal hypothecation. In these cases the security is created by the operation of law. Judicial hypothecation is created by process before a court of law, e.g., by an attachment of property. Conventional hypothecations are created by act of the parties. The Japanese Code only recognizes the last species. For the protection of married women and wards, the Japanese Code gives power to the married woman and family council respectively, to demand from the husband or the guardian as the case may be, sufficient security which need not necessarily be in the form of immovables. It is also doubtful whether a preference over other creditors should be given to a creditor whose right was not originally secured, simply because he was quick in levying an attachment upon the property of the debtor. At least, that was the view of the framers of the Japanese Code and hence judicial hypothecation is not recognized by our law.
[Remainder to appear in June issue.]
