Civil Code, book on the law of acquisition of property
- Civil Code, book on the law of acquisition of property [名古屋大学法学図書室]
BOOK ON THE LAW OF ACQUISITION OF PROPERTY. CHAPTER XIII. SUCCESSIONS. GENERAL PROVISIONS. ARTICLE. 286. Successions are of two kinds : successions to katoku,(headship of a house), and successions to isan (inheritance). SECTION I. SUCCESSIONS TO KATOKU. 287. Successions to katoku are those which take place upon the death or inkio (retirement from the position of a koshu) of the koshu. SUBSECTION I. GENERAL PROVISIONS FOR SUCCESSIONS TO KATOKU. 288. The person who is to succeed to katoku is only one for a house. Any person cannot succeed at the same time to the katokie of two or more houses. 289. Any person, who has entered into the other house by marriage or adoption and remains in it, cannot succeed to the katoku of his or her original house or any other houses. 290. A person who has been nominated or selected to an heir to katoku of two or more houses can make a choice of one among them. 291. When a presumptive heir to katoku is nominated or selected to an heir to katoku of another house, such nomination or selection is of no effect. 292. Any person who has been punished for having caused his or her ancestor to die or attempted to cause the death of such ancestor except by his or her faults is excluded from successions. 293. The right of action for exclusion from successions becomes extinguished by the express pardon granted by the ancestor. 294. An heir to katoku becomes the koshu by succeeding to the family name, lineage, honorary titles, and whole property. The genealogical records, hereditary property, utensils for celebrating the anniversary of the ancestors, graveyard, firm name and trade-mark form the special right of succession to katoku. SUBSECTION 2. RANK OF HEIR TO KATOKU. 295. The rank of the person who is to be an heir to katoku by law is determined as follows : i. Any person most proximate in the degree of consanguinity amongst the descendants who are the members of the ancestor's family ; ii. The male, where there are male and female of the same degree of consanguinity amongst the descendants ; iii. The male born most early, where there are several males ; but the legitimate child, where there are legitimate and illegitimate or natural children ; iv. The female born most early, where there are several females only ; but the legitimate child, when there are legitimate and illegitimate or natural children. Nevertheless, where, in case the person who is to be an heir to katoku in conformity with the above provisions is dead before the ancestor or is deprived of the succession by the causes in Article 297 mentioned, such person has the descendants, one of them becomes. an heir to katoku according to the legal rank. 296. Any ancestor cannot deprive a legal presumptive heir to katoku of the succession unless there exists a lawful cause therefor. 297. The lawful causes by which a legal presumptive heir to katoku can be deprived of the succession are as follows : i. The declaration of absence ; ii. The civil interdiction and quasi-interdiction ; iii. The punishment of major imprisonment for one year or more ; iv. An incurable disease which makes it impossible to manage the affairs of a house ; v. The punishment for the offence committed against the grandfather, grandmother, father and mother ; vi. The punishment for crimes. 298. The deprivation of a presumptive heir to katoku of the succession can be effected by a testament or by making the statement to the civil status official. The deprivation of an heir to katoku of the succession founded on such statement can be annulled by the ancestor. Such annulment is done by stating it to the civil status official. 299. Where there is a legal heir to katoku the ancestor cannot nominate an heir to katoku. Nevertheless, such a nomination done in contravention of the above provision is valid, when there is no legal heir to katoku at the day of the ancestor's death. 300. The nomination of an heir to katoku shall be made by a testament. 301. Where there is neither a legal heir to katoku nor a nominated heir to katoku and there is in the house the father of the deceased, such father and in his default the mother selects an heir to katoku from among the members of the family according to the following. order : i. Brothers ; ii. Sisters ; iii. The male amongst the descendants of the brothers and sisters, who is the most proximate in the degree of consanguinity, or the female when there is no male or he has renounced the succession. 302. Where in the case of the preceding Article there are no father and mother, the right to select an heir to katoku belongs to the family council. But the family council cannot change the order of selection in the preceding Article provided for. 303. Where there is no heir to katoku to be selected in conformity with the provisions of Article 301 or all the persons have renounced the succession, any one of the ascendants in the house who is the most proximate in the degree of consanguinity can voluntarily succeed to katoku. 304. Where there is no such heir as in the preceding Article mentioned, the spouse can succeed to katoku. 305. The family council can only select any other person when there is no such heir as in the preceding Articles mentioned, or all the persons have renounced the succession. SUBSECTION 3. SPECIAL RULES FOR SUCCESSION TO KATOKU UPON INKIO. 306. To make inkio, the following conditions must be fulfilled : i. That the age of full sixty years or more has been attained ; ii. That it is voluntarily made ; iii. That the heir to katoku who is a major and capable to manage effectively the affairs of the house has made the simple acceptance ; iv. That the spouse has consented to. 307. Where a person making inkio cannot manage effectively the affairs of the house from a serious sickness or any other causes, or where there is a necessity that a main house should be succeeded by the koshu of its branch house, the Local Court can upon application of such person or koshu release them from the condition of age. 308. The spouse or relatives by consanguinity of a person making inkio and the Public Procurator can enter a protest on one of the following grounds within sixty days from the day on which the inkio has been declared : i. The fact that the conditions in Article 306, i-iii mentioned have not been complied with ; ii. The fact that . the person succeeding to katoku is not a presumptive heir to katoku. Where the inkio has not voluntarily been made, the person making inkio can also enter a protest. 309. Where there exists the fact that an inkio has been made in contravention of the condition in Article 306, iv mentioned, the spouse of the person making inkio can only enter a protest. Where a person making inkio attempts to do it with the intention of defrauding his or her creditors, they can also enter a protest. The term for entering a protest in the preceding Article mentioned is applicable to this Article. 310. Where the inkio is made, it shall be declared by the party to the civil status official. 311. The succession to katoku upon inkio produces the same effects as that upon death, as against those interested before its declaration, from the day on which the term provided for in Article 308 expires, and if a protest has been entered, from the day on which the dismissal of such protest has become final and conclusive. The rights and obligations the existence of which extends to the life of the person making inkio are not, however, extinguished. SECTION II. SUCCESSIONS TO ISAN. 312. Successions to isan are those which take place upon the death of the members of family. 313. The isan of a member of family is succeeded by his or her descendants belonging to the same house as such member, or by the spouse of such member if there are no such descendants, or in default of such spouse by the koshu. 314. Where the descendants succeed to the isan, the provisions of Article 295 are applicable. SECTION III. SUCCESSIONS BELONGING TO STATE. 315. Any property to which there is no person to succeed belongs to the State. The State succeeds with a limited acceptance. 316. The property for succession which is to belong to the State is administered in the same manner as a property to which a person to succeed is wanting, until it is received by the State. SECTION IV. ACCEPTANCE AND RENUNCIATION OF SUCCESSIONS. 317. An heir can in respect to a succession make a simple or limited acceptance or make a renunciation. A legal heir to katoku cannot, however, make a renunciation and an heir succeeding to katoku upon inkio cannot make a limited acceptance. 318. An heir, with the exception of one succeeding to katoku upon inkio, has a term of three months from the day of the succession for examining the property for succession. The Court can grant a further term shorter than three months according to the circumstances. A term of one month is given for determining the acceptance or renunciation. This term runs from the day on which the term for the examination expires or the day on which the actual examination terminates before the latter term expires. 319. An heir can have all procedures of the suits relating to the property for succession stopped during the term for the examination or determination. 320. All the costs incurred in the suits relating to the property for succession are borne by such property whether they are incurred within the legal term or a further term granted by the Court, except those incurred by any acts or faults of the heir. 321. Where in the property for succession there are such things as will easily perish or require large expenses for their preservation, they can be sold by auction under the approval of the Local Court even within the term for the examination or determination. The things of daily use can be disposed of without the approval of the Court. SUBSECTION I. SIMPLE ACCEPTANCE. 322. Where an heir indicates either expressly or impliedly his or her intent to represent his or her ancestor in respect to the property of such ancestor, it is the simple acceptance. 323. There is the implied acceptance : i. Where in respect to one or several things belonging to the property for succession, the right of ownership is alienated or any other real rights are created in favour of another person, except the creation of the right of lease subjected to the restrictions provided for in Article. 119 and following Articles of the Book on the Law of Property ; ii. Where an heir does not make a limited acceptance or renunciation within the term in Article 318 mentioned. In addition, there is a simple acceptance in the cases in Article 327, ii mentioned. 324. The acceptance can only be rescinded for one of the following causes : i. Where it has been made by coercion done against the person or property ; ii. Where it has been made on account of deceit ; iii. Where it has been made by a person of legal incapacity or guardian contrary to the formalities ; iv. Where bankruptcy or insolvency is not to be avoided on account of the debts the existence of which was unknown at the time of the acceptance. Such right of action for rescission is governed by the term and conditions of the right of action for rescission provided for in Article 544 and following Articles of the Book on the Law of Property. SUBSECTION 2. LIMITED ACCEPTANCE. 325. Where an heir is only liable for payment of debts to the extent of the property for succession, it is the limited acceptance. 326. An heir who has intent to make a limited acceptance shall produce to the Local Court of the place where the succession takes place the inventory of the property examined within the term in Article 318 provided for, and state such intention, and the Court shall mention the same in the register specially kept for the purpose. 327. An heir loses the right to make a limited acceptance : i. Where he or she has made a simple acceptance ; ii. Where he or she has privately appropriated or concealed the property for succession or omitted with malicious intent a part of such property in the inventory prepared on its examination. 328. A limited acceptor shall administer the property for succession with the same care as is exercised in respect to his or her own property and render an account thereof to the creditors and legatees, but such account must be finished within one month after the property for succession has been exhausted by paying the debts and legacies. 329. Where it is necessary to sell anything belonging to the property for succession whether movable or immovable, the limited acceptor shall sell it by auction by obtaining the authorization of the Local Court. 330. The limited acceptor shall not confuse the prices obtained for every thing belonging to the property lawfully sold, and shall pay揃 successively to the creditors who have the right of preference over such thing. 331. Where there are such creditors or legatees as attach the payments of the debts or legacies borne by the succession or raise objections to such payments, the limited acceptor cannot make such payments unless the order and manner fixed by the decision are complied with. 332. vVhere there are no such attachments or objections as in the preceding Article mentioned, the payments are made according to the claims of the creditors or legatees. The creditors or legatees, who claim payments before the account provided for in Article 328 is not finished even after the property for succession has been exhausted by payments, can exercise under the following distinctions the right of recourse against those creditors or legatees who have already been paid : i. The creditors at first against the paid legatees and then against the paid creditors ; ii. The legatees merely against the paid legatees. 333. Where the heir has delayed to finish the account, any one of the creditors who is not yet paid can have recourse directly against the heir's own property for such amount as recourse can be had against those legatees. and creditors who have already been paid. 334. The creditors, who claim payments after the property for succession has been exhausted and the account has been finished, can only exercise the right of recourse against the legatees who have been paid. 335. The right of recourse in the preceding three Articles mentioned can be exercised for three years. This term runs from the day on which the claims have been at first made to the heir if such term begins before the finishing of the account, and if it begins after its finishing, from the day of such finishing. SUBSECTION 3. RENUNCIATION. 336. An heir who intends to renounce a succession shall state thereof to the Local Court of the place where the succession takes place, and the Court shall mention it in the register specially kept for the purpose. 337. A succession once renounced can be accepted by the renouncer so long as there is no other heir who has accepted it, but this acceptance can only be made within the term in Article 318 mentioned ; without prejudice, however, to the rights validly acquired by third persons in respect to the property for succession. 338. Any person who has renounced a succession can rescind such renunciation, even though there is another heir who has accepted it : i. Where the renunciation has been made by coercion done against the person or property ; ii. Where it has been made on account of deceit ; iii. Where it has been made by a person of legal incapacity or guardian contrary to the formalities. Such right of action for rescission is governed by the term and conditions provided for in Article 544 and following Articles of the Book on the Law of Property. 339. The renunciation which has been made with intent to defraud the揃 creditors can be revoked by them for their own benefits under the distinction and term provided for in Article 341 and following Articles of the Book on the Law of Property. 340. Any person who has lawfully accepted or been presumed to be an acceptor cannot make a renunciation. 341. An heir who has privately appropriated or concealed things included in a succession loses the right to renounce such succession. SUBSECTION 4. DISPOSAL OF THE PROPERTY FOR SUCCESSION IN WHICH HEIR IS WANTING. 342. Where heir does not appear, or existence of heir is not clear, or heirs have renounced a succession, heir is deemed to be wanting. 343. The Local Court of the place of the succession in which heir is wanting shall on demand of those interested揃 or the Public Procurator appoint an administrator of the property for such succession. 344. The administrator shall cite those interested, examine the property for succession, make its inventory and have the state of the property verified. After the above measures have been finished, the administrator shall exercise the rights belonging to the succession, assert them judicially and defend in the suits against the succession. The monies, whether they are a portion of the property for succession or proceeds of the same, shall be deposited in the Public Deposit Office. The debts borne by the succession can only be paid by the authorization of the Local Court. 345. The rules in Article 328 and following Articles laid down in respect to the obligations and responsibilities of a limited acceptor are applied to the administrator. 346. Where the property for succession still remains after the account has finished, the administrator shall by obtaining the authorization of the Local Court sell it by auction and deposit the money obtained thereby in the Public Deposit Office. He shall produce the receipt . therefor to the Local Coqrt where it shall be preserved. 347. Where an heir appears, he or she shall obtain from the Local Court the receipt issued by the Public Deposit Office, as well as the certificate of his or her status of being the heir, and present them to such Office and receive the deposited money. 348. Where it has become certain that there is no heir, the State shall receive the deposited money in conformity with special law. CHAPTER XIV. DONATION AND LEGACY. GENERAL PROVISIONS. 349. Donation is a formal agreement to transfer563 gratuitously by one of the parties his or her own property to the other. 350. The donation may be simple, subject to a term, or subject to a condition. It can only be revoked by the causes recognized by law. 351. A donor does not guarantee for disturbance and eviction of the thing donated, unless they result from any act of the donor done after the donation. 352. Legacy is an act of transferring gratuitously by will by one of the parties his or her own property at the time of his or her death to the other. The legacy can be revoked by the testator or testatrix as he or she sees fit. 353. Any impossible or illegal conditions which exist in a testament are deemed as not mentioned. Where they exist in a written donation, such donation is null and void. SECTION I. LEGAL CAPACITY TO MAKE OR RECEIVE DONATION OR LEGACY. 354. Except those specially determined as incapable persons by law, any persons have the legal capacity to make or receive donations and legacies. 355. The following persons have no legal capacity to make donations : i. Those who are m the state of unsound mind at the time of making donations ; ii. Interdicted persons ; iii. Those who are in an hospital or under custody on account of their lunacy ; iv. Minors, except in the case specially authorized by law for a marriage contract. 356. Quasi-interdicted persons cannot make donations, unless they comply with the formalities required by law for alienations of property. 357. The following persons have no legal capacity to make legacies : i. Those who are in the state of unsound mind at the time of making legacies ; ii. Civilly interdicted persons ; iii. Those who are in an hospital or under custody on account of their lunacy ; iv. Minors, except those emancipated. SECTION II. DONATION. SUBSECTION 1. FORMALITIES OF DONATION. 358. Donations, whether made for establishing a branch house or for any other causes, do not validly exist, unless they are made by an authentic decument, in addition to fulfillment of the conditions necessary for the existence of an ordinary agreement. Nevertheless, customary gifts, and donations consisting in simple handing over do not require such formalities. 359. A donation includes only the actual property of the donor. If future property be included, the donation is null and void as to such property. The donation of money or things of quantity the amount of which is fixed is, however, valid whether actually owned by the donor or not. 360. Where a donee is bound, by the nature of a donation or by a promise, to pay debts of the donor, such obligation includes only those debts which have already existed at the time of the donation. Where a promise to pay future debts of a donor has been made by the donee, such promise is null and void. 361. A donor can only stipulate in his or her own interests for the condition by which the donation is to be cancelled when the donee is dead before the donor. Where such resolutory condition has been stipulated for by a donor in the interests of his or her heir or third persons, such condition is null and void. 362. The accomplishment of the resolutory condition validly stipulated for in accordance with the provision of the first paragraph of the preceding Article produces the same effects as against the donee's heir or third persons, as the resolutory condition stipulated for in an ordinary agreement. The wife of the donee, however, keeps the right of legal mortgage over the donated property, without regard to the cancellation of the donation, when the two following conditions are fulfilled : i. That the donation has been made for the husband by a marriage contract ; ii. That the property of the husband other than that donated is not sufficient for guaranteeing restitution of the wife's own property. SUBSECTION 2. REVOCATION OF DONATION. 363. A donation can be revoked for non-fulfillment of the conditions stipulated for by the donor, in addition to the ordinary causes making an agreement null and void. 364. The revocation of donation based on non-fulfillment of the conditions can be demanded by the donor or his or her successors. 365. Where a donation has been revoked on the ground of non-fulfillment of the conditions, such revocation produces the same effects as against the donee or third persons, as in the case where an agreement has been cancelled by the accomplishment of conditions. SECTION III. SPECIAL RULES OF DONATION BETWEEN HUSBAND AND WIFE. 366. A minor husband or wife can only make donations by the permission and in the presence of one who is to give the permission for marriage and by way of a marriage contract. 367. A donation between the husband and wife can be revoked during the marriage as he or she sees fit without regard to whatever clause is in existence. The revocation of the donation is inoperative as against third persons, except those who have acquired a real right over the donated property from the holder of the isan of the donee, after the petition for revocation was noted in the registration of such donation. SECTION IV. LEGACY. SUBSECTION 1. FORMALITIES OF WILL. 368. A will can be made by the testator or testatrix in a holographic or authentic document, or under secret formalities. Nevertheless, two or more persons cannot make their will by one and the same document. 369. A holographic testament has no validity unless its whole contents, date and names are written by the testator or testatrix themselves and sealed. 370. A will under an authentic document has no validity unless in the presence of a notary and two witnesses the testator or testatrix has dictated the contents of will and after they were written down and read by the notary, they have been respectively signed and sealed by himself or herself and the witnesses. Where, however, any one cannot sign, the mention thereof in the document suffices. 371. A testament under secret formalities has no validity whether written by the testator or testatrix themselves or any other person, unless the following conditions are fulfilled : i. That the testator or testatrix has signed themselves and sealed ; ii. That the testament has been closed and they have put seal thereon ; iii. That they have presented such closed document to a notary and two witnesses and stated to them that it is their own testament ; iv. That the notary has noted on the closed document the statement made by them and the date when he heard it and has signed and sealed thereon together with them and the witnesses ; if in this case there is a witness who cannot sign, the note thereof on such document by the notary suffices. The notary shall deliver to the testator or testatrix or one of the witnesses nominated by them the receipt noting that the document will not be opened except in the presence of their heir after their death. 372. Where the whole contents, date and names of a testament are altogether in the handwriting of the testator or testatrix, even though any one or more of the conditions provided for in the preceding Article for the purpose of it being valid as a will under secret formalities are wanting, such testament is valid as a holographic one. 373. Legatees, clerks of the notary participating in making of a will and other persons of ordinary legal incapacity cannot be a witness. SUBSECTION 2. SPECIAL FORMALITIES OF WILL. 374. Any person in the service in the army or navy, who is serving in an expedition or is serving in a campaign or in a besieged place even in the interior, can make a testament with the assistance of one officer and two witnesses. 375. Any person in the service in the army or navy, who is during an expedition, campaign or siege placed in an hospital on account of his sickness or wound, can make a testament with the . assistance of surgeons and managers of the hospital. 376. Any person, who is in a locality with which the communications are cut off by an administrative measure on account of an infectious disease prevailing therein, can make a testament whether he is suffering from such disease or not, with the assistance of a police officer and a witness. 377. Any person who is in a voyage can make a testament with the assistance in a man-of-war of one officer, and in any other ships of one manager, and of two witnesses. 378. Where a testament has been made at sea, it shall be mentioned in the log-book. 379. Any testament made in conformity with the provisions of this Subsection shall respectively be signed and sealed by the testator or testatrix, person who has written it for them, and those who have been present in making the same. Where any one of them cannot sign or seal, the mention thereof in the testament suffices. 380. A Japanese who is in a foreign country can make a will in conformity with either the holographic formalities provided for in Article 369 or the authentic formalities used in such country. 381. Any testament made in a foreign country cannot be executed in respect to the property situated in Japan, until after it has been entered in the register of the Local Court of the domicile that the testator or testatrix has in Japan, and if the domicile is unknown, of the place of their last residence. Where such testament contains the disposal of immovables situated in Japan, it cannot be set up against third persons until after the registration thereof has been applied for to the Local Court of the place where they are situated. 382. Foreigners residing in Japan can make will in conformity with either the Japanese law or the law of the country to which they belong. SUBSECTION 3. THE PORTION OF PROPERTY WHICH CAN BE BEQUEATHED. 383. To determine the portion of both the property which can be bequeathed and that which is to be reserved for an heir, whatever forms the special right of succession to katoku, is to be deducted. 384. Where there is a le gal heir to katoku, the ancestor can only bequeath in favour of the other persons up to half of the property for succession. The same applies to the case where there are descendants succeeding to isan of members of family. 385. In respect to a right, such as right of usufruct, the duration of existence of which is uncertain, such portion as can be bequeathed is determined by appreciating the value such right has at the time of succession. Where the value of such right exceeds the portion which can be bequeathed, the heir can either carry out the legacy of the ancestor or retake such right by giving the entire right of ownership of such portion as can be bequeathed. 386. Legacies exceeding the portion which can be bequeathed are reduced to such portion. 387. The amount to be reduced is fixed by a calculation being made upon the balance of the estimated value of all the property existing at the time of succession, which remains after the sum of debts of the ancestor has been deducted from such estimated value. 388. Where the portion of the property to be reserved is to be formed by reducing a portion of legacies, all the legacies whether universal or specific shall be reduced in proportion to their value. 389. All donations which are to be executed after the death of the donor have the same effects as legacies. SUBSECTION 4. EFFECTS AND EXECUTION OF WILL. 390. Simple legacies or those subject to a term transfer, from the time of the death of testators or testatrixes, to the legatees whether they have the knowledge thereof or not, the property and debts which are included in the legacies in the case of universal legacies, and the rights over the things so bequeathed in the case. of specific legacies. The execution of the legacies subject to a term is, however, suspended until the term expires. The effects of the legacy subject to the suspensive or resolutory condition are dependent on its accomplishment as is provided for in respect to agreements. Where the subject-matter of a legacy is a fungible thing, its right of ownership is transferred in conformity with the provisions of Article 332 of the Book on the Law of. Property. In any case whatever, legatees can renounce legacies. 391. Where a testator or testatrix has bequeathed a thing over which they have an undivided right, the legatee acquires the same right as themselves. 392. A legatee is not entitled to collect fruits of the thing bequeathed until after the time at which the delivery of such thing has been claimed ; but the term must become due or conditions must be accomplished. In the three following cases, however, the legatee is entitled to collect the fruits without making the claim from the time of the death of the testator or testatrix, expiration of the term or accomplishmentof the conditions : i. Where the right to collect the fruits has expressly been stated by the testator or testatrix ; ii. Where the legacy has the nature of aliment ; iii. Where the heir has concealed the will with malicious intent. 393. The things bequeathed shall be delivered, if the legacies are simple, in their actual state at the time of the death of the testator or testatrix together with the things which are accessory to them as of course, and if the legacies are those subject to a term or condition, they shall be delivered in their actual state at the time their delivery can be demanded. The improvement or deterioration done by the heir over the thing bequeathed produces the right to demand indemnifications each against the other between the heir and legatee. Where a legacy has been made under the resolutory condition, and such condition has been accomplished, the legatee or his or her heir shall return the thing bequeathed in its actual state ; without prejudice, however, to respective indemnifications between the both parties in respect to improvements or deteriorations caused by the act of man. 394. Lands or buildings acquired by a testator or testatrix after a will has been made, even though they are contiguous to a bequeathed immovable or destined for improving advantageous employment of the same, do not benefit the legatee of such immovable. 395. Testaments, except those in authentic document, can only be executed after they have been legalized by the Local Court of the place of succession. Sealed testaments can only be opened in the Local Court. Any person who acts in contravention of the provisions of the two preceding paragraphs is liable to a fine not exceeding 100 yen. 396. The expenses incurred in respect to execution of will and delivery of things bequeathed are borne by the property for succession. They cannot, however, made to be borne by the property to be reserved. 397. The legacy of a real immovable right cannot be set up against third persons backward to the day of the death of the testator or testatrix, unless it has been registered within thirty days from the time at which the legatee knew of such legacy after the death of the former. The expenses for such registration are borne by the legatee. 398. A testator or testatrix can by agreement or will entrust to one or more persons the execution of legacies. Any person who executes wills is subjected to the ordinary obligations of an agent. SUBSECTION 5. REVOCATION OF WILL AND LOSS OF ITS VALIDITY. 399. Wills can be revoked by a testator or testatrix as they see fit. The revocation can be made either expressly or impliedly. 400. Where a testator or testatrix has, in conformity with the formalities of will, mentioned in the document his or her intent to revoke the will in whole or in part, such revocation is an express one. 401. Where a specific thing contained in a will has been disposed of by the later will, the former will is impliedly revoked so far as such thing is concerned. The same applies to the case where the testator or testatrix has disposed of onerously or gratuitously during his or her life a specific thing contained in the will. 402. A will once revoked does not recover its validity even though the disposals in the preceding Article mentioned become null and void. 403. The revocation of a will can be demanded by the heir for non-fulfillment of the conditions by the legatee or for the act of the legatee by which the death of the testator or testatrix has been caused. 404. A will loses its validity even though it is perfect so far as its formalities are concerned : i. Where the legatee is dead before the testator or testatrix ; ii. Where, in the case of a will subject to the suspensive condition, the legatee is dead before such condition is accomplished. 405. With regard to a part of a will which has been revoked or lost its validity, the will is deemed as never took place, unless the testator or testatrix has expressly nominated a person to be enriched by such part. SECTION V. PARTITION OF THE UNDIVIDED PROPERTY BASED ON UNIVERSAL DONATION OR LEGACY. 406. Where an undivided property has come to the existence between a donor or his heir and a donee or legatee on account of an universal donation or legacy having been made, it is partitioned among them in conformity with the provisions in the following Articles mentiond. The same applies in the case where there are several donees or legatees. SUBSECTION I. PARTITION. 407. Each of the owners of an undivided property can claim its partition, unless it has been agreed in accordance with the provisions of Article 39 of the Book on the Law of Property that such partition is not to be made. 408. The partition must be express. The fact that a property is separately enjoyed is not held to be a partition. 409. The partition of an undivided property can be freely made by an agreement of each of the owners. It can, however, be only made by virtue of a decision : i. Where there are amongst the owners minors, interdicted persons or lunatics, and there are not their guardians or provisional administrators ; ii. Where there are amongst the owners persons not present and there are not their conventional agents having the power to consent to the partition validly ; iii. Where there are amongst the owners those who do not consent to the conventional partition. 410. Where a judicial partition is required, the Local Court of the place of succession shall direct on demand of the heir, creditors or Public Procurator, the property to be sealed and its inventory to be made. 411. Even though the judicial partition is not required, the credifors can demand the 揃 sealing and preparation of the inventory, by obtaining the authorization of the Local Court if they have no executory documents. To taking the sealing away, all the creditors can raise objections. 412. Each of the owners can claim the delivery in kind of his part of an undivided property, unless its delivery has been attached by the creditors, or it has been resolved by the majority of the owners that, the sale of the property is necessary for paying in advance the debts and expenses borne by such property. 413. The partition made in contravention of the rules laid down for minors, interdicted persons, lunatics or persons not present is only a provisional one in their interests. 414. Where at the time of the partition there are several persons of legal incapacity or persons not present, between whom there is opposition of interets, a temporary assistant or administrator shall be nominated for each of them. 415. Where the partition has been concluded, each owner holds the document of the thing received by him. The document of one and the same thing divided among all the owners or several of them is held by one who has received its greatest part. If there is no such person as received the greatest part, the holder of such document is determined by the arrangement of the owners. If they disagree, such holder is nominated by the Court. In either case the holder of the document shall allow the other owners to avail themselves of it in compliance with their request. 416. The owners contribute to the debts in proportion to the part which they receive each respectively. SUBSECTION 2. EFFECTS AND GUARANTY OF PARTITION. 417. With regard to the effects of a partition, the provision of Article 155 is applicable. 418. Each owner is bound to guarantee the other in respect to disturbance and eviction of the partitioned thing based on any cause before the partition, unless he is released from the obligation of guaranty by a special agreement. 419. In respect to rights of claim, each owner is only bound to guarantee to the extent of the debtor's solvency at the time of the partition. SUBSECTION 3. RESCISSION OF PARTITION. 420. A partition can, in addition to its non-existence or nullity under the distinctions determined by Article 304 and following Articles of the Book on the Law of Property, be rescinded for a loss sustained by one of the owners in the part received by him, if such loss amounts to one fourth or more of such part. The appreciation of the loss shall be made on basis of the value the thing had at the time of partition. 421. The right of action for rescission becomes extinguished by the prescriptions and ratifications determined by Article 544 and following Articles of the Book on the Law of Property. CHAPTER XV. MARRIAGE CONTRACT. SECTION I. GENERAL PROVISIONS. 422. A marriage contract does not exist unless it is entered into and its document is made by a notary before the celebration of marriage. The contract cannot be changed after the celebration of marriage. 423. The minor who is capable of marrying can enter into a marriage contract in the presence of his or her ascendants or guardian who are to give the permission of marriage. 424. Where a marriage has been made without entering into a marriage contract, the relation of property between husband and wife is governed by the legal system. 425. With regard to the marriage of foreigners made in Japan without entering into a marriage contract, it is considered to be governed by the ordinary system in force in the country to which the person who is husband belongs. SECTION II. LEGAL SYSTEM. 426. The fruits produced during the marriage from the property owned by a wife or niufu actually at the time of the celebration of marriage or to be owned in future, as well as the incomes obtained during the same by her . or his own services or labours are deemed as furnished to her or his spouse for the purpose of contributing to the expenses incurred during such marriage. 427. The right which a husband, or a wife who is the koshu has over the property owned by his or her spouse is equal to that of a usufructuary. The husband, or the wife being the koshu who has the enjoyment in respect to the property owned by his or her spouse, is bound to make suc.h repairs and to pay such other charges out of the profits, as borne by a usufructuary. 428. The husband administers the property owned by his wife, and the niufu the property of his wife who is the koshu. 429. The husband or niufu cannot alienate or offer for guaranty the property owned by his wife or the property of his wife who is the koshu, unless their consent is obtained, except in the cases of Articles 229 and 275 of the Book on the Law of Person. 430. The niufu cannot alienate or offer for guaranty the incomes acquired during the marriage unless the consent of his wife who is the koshu is obtained ; the fruits, however, produced from the property owned by him, as well as the incomes obtained by his own services or labours are excepted. 431. With regard to the lease made by the husband or niufu in respect to the property owned by his wife or the property of his wife who is the koshu without obtaining their consent, the provisions of Article 119 and following Articles of the Book 011 the Law of Property are applicable. 432. Where the husband or niufu exposes the property owned by his wife or the property of his wife who is the koshu to dangers by their improper administration, she can demand to administer such property herself. 433. With regard to the debts borne by the wife or niufu at the time of the celebration of marriage, as well as those incurred during the marriage, the creditors can exercise their right over the property owned by such wife or niufu. 434. With regard to the debts incurred in the name of the wife, the creditors can only demand their payment to her husband if such debts are proved by them to have been incurred for the purpose of the administration of affairs of the house. In respect to the debts incurred in the name of the niufu, the creditors can only demand their payment to his wife who is the koshu if such debts are proved by them to have been incurred for the purpose of the administration of property. 435. Any property which is not proved to be the property owned by the wife or niufu is deemed as belongs to her husband, or his wife who is the koshu.