CIVIL CODE BOOK II. PROPERTY IN GENERAL. PRELIMINARY PROVISIONS.

Article 1.— Property in general consists of those rights which constitute the patrimony either of individuals, or of several persons associated together, or of the State, of Ken or Fu, of Gun or Ku, or of public institutions. These rights are of two kinds: real rights, and personal rights or rights of claim.

Art. 2.— Real rights arc those which arc directly exercisable over things, and which can be set up against all the world. They arc either principal or accessory. Principal real rights are : 1. Ownership (entire or dismembered); 2. Usufruct, use, and habitation ; 3. The Rights of lease, emphyteusis, and superficies; 4. The Right of possession. These rights, together with the real servitudes by which a right of ownership becomes dismembered for the utility of third parties, form the subject of the First Part of the present Book. Accessory real rights, which constitute the guaranty or security of personal rights, are: 1. Lien; 2. Pledge; 3. Antichresis; 4. Privilege : 5. Mortgage. These rights form the subject of Book IV, Part II.

Art. 3.— Personal rights, or rights of claim, are those which arc exercisable against a particular person to obtain from him cither the doing, or abstaining from doing of any thing according as he may be obliged by causes recognized by law. These rights are also principal or accessory. Principal personal rights form the subject of the Second Part of the present Book. Personal rights, guaranteeing accessorily other rights of claim, such as suretyship and solidarity are provided for in Book IV, Part I.

Art. 4.— The rights of authors, artists, and inventors, with respect to the publication of their writings, reproduction of their works of art, and the utilization of their discoveries, are provided for by special laws.

Art. 5.— Rights, both real and personal, are subject to modifications according to the various, distinctions hereinafter made with respect to the things to which they relate, and which arise either from the nature of the things themselves, from the will of man, or from some provision of law.

Art. 6.— Things arc corporeal or incorporeal. Corporeal things arc those which are perceptible to the physical senses of man, such as: land, buildings, animals, household effects. Incorporeal things are those which are perceptible to the mind only, such as : 1. Real or personal rights in themselves ; 2. The rights to literary, artistic, or industrial property, as mentioned in Art. 4. 3. The entirety of the assets and liabilities of a succession that is opened, of a partnership or company in dissolution, or ef a community of property in liquidation.

Art. 7.— Things are movable or immovable according as to whether they are susceptible or not of being moved, either in consequence of their nature, the purposes for which they are employed by their owner, or of some provision of law.

Art. 8.— The following are immovable in consequence of their nature : 1. Plots of land, embankments, terraces, and other parts of the soil; 2. Enclosure walls, hedges and fences, and palings; 3. Reservoirs. ponds, lakes, ditches, canals, springs and any kind of water-course; 4. Dikes, jetties, piles, and other constructions intended to keep in or minimize the effect of water ; 5. Paths, water and wind mills attached to the soil, hydraulic or steam machinery, when fixed, without regard to the use for which it may be employed ; 6. Forests, woods, trees, and all kinds of shrubs and plants growing in the ground, with the exception of what is mentioned with respect to nursery gardens in Art. 7. Fruitsand crops, although arrived at maturity, so long as they have not been separated from the soil, and saving the exception mentioned in the said article ; 8. Mines, mineral surface soils, and quarries of every description, in so far as what they produce has not been separated from the soil ; the same with respect to marl or clay . pits, and turbaries ; 9. Edifices or buildings fixed to or erected upon the soil by any person whatever, irrespective of the purposes for which they are employed, or for which they are intended, and notwithstanding that they may have to be pulled down within a fixed time, but subject to the exception contained in Art. 13 ; 10. Pipes-attached to the soil or to such buildings for bringing, conducting, or carrying off water, or for the conduct of gas or heat ; 11. Electric apparatuses and their accessories attached to the soil, or to buildings ; 12. Exterior doors or shutters; of buildings ; And generally all objects, even although movable by their nature, which form essential accessories of buildings used as dwellings.)

Art. 9.— Movable objects, no matter of what nature, which have been placed by their owner upon land or in buildings belonging to him for improving, utilizing, or enjoying the same cither in perpetuity or for any indefinite time, are inmovable in consequence of the purposes for which they arc employed : the same applies to movable objects placed on land or in buildings for similar purposes by any one, who has the right to use or temporarily enjoy the same.

Art. 10.— The following objects, until there be proof to the contrary, arc to be presumed to be immovable according to the preceding Article by reason of the purposes for which they arc employed : 1. Beasts of burden or draught used in the cultivation or working of a landed property; 2. Animals placed on a landed property for the purpose of manuring it; 3. Agricultural implements and tools, 4. Seeds, straw, and manure, intended to be used in cultivating a landed property although not derived from such property; 5. Silkworms eggs intended for working a silkworm nursery; 6. Props, stakes, and bamboos, intended for the support of vines, fruit trees, and other trees ; 7. Apparatus and implements intended to be used for transforming, or making ready for use or sale, agricultural products of a landed property such as presses, boilers, stills, tubs and casks ; 8. Machinery, apparatus, and implements, used in the working of industrial establishments ; 9. Floating baths, and ferry or other boats intended to be permanently used by a landed property. even although the waters should be public, or should belong to another proprietor; 10. Stone lanterns, vases, and ornamental stones, put in gardens; 11. Pictures, mirrors, sculptures, and ornaments of any kind whatever attached to buildings so that they cannot be detached without injuring the same; 12. Tatami, tategu, and other accessories, when they have been put into a house by the owner, and the same is either unoccupied, or occupied by others than the owner; 13. Materials detached from a building whilst under repair and intended to be again put back in it; 14. Fish belonging to ponds, bees belonging to hives, and pigeons belonging to cots.

Art. 11.— The following are rendered immovable by law: 1. Real rights over the corporeal immovables above mentioned ; 3. Personal rights, or rights of claim, which have for object the acquisition or recovery of a real right over an immovable ; 3. Rights of claim which have for object the construction of a building with the materials of the constructor; 4. Government annuities, and other movable claims made immovable by law, or by any individual by virtue of some provision of law.

Art. 12.— Things susceptible of being moved either of themselves, like animals, or by means of some extraneous force, like inanimate things, and saving the exceptions above mentioned in Arts. 8 and 10, are movable by reason of their nature.

Art. 13.— Things, which have only been provisionally fixed to the soil for some temporary object, are movable by reason of the purposes for which they are employed by their owner, such are : 1. Scaffoldings, and posts used for building; 2. Sheds intended to shelter workmen and materials, whilst carrying on building operations ; 3. Trees, shrubs, and flowers, raised or kept in the ground for purposes of sale by nursery and other gardeners; 4. Buildings and other works, which have been alienated for the purpose of being pulled down, and trees, shrubs, and crops, which have been alienated for the purpose of being pulled up.

Art. 14.— The following arc rendered movable by law: 1. Real rights over the movables above mentioned ; 2. Personal rights, or rights of claim, which have for object the acquisition or recovery of a sum of money, of commodities, of merchandise, or of other corporeal movables, even although immovables given as security for the claim may be thereby affected ; 3. Claims the object of which is the exacting from another the doing of any particular thing, or the refraining from exercising any right, even although it be immovable ; 4. The rights belonging to civil or commercial partnerships or companies that are regarded as one moral or juristic person, up to the time of their dissolution, even although immovables belong to such partnerships or companies ; 5. The rights mentioned in Art. 4 as belonging to literary, artistic, or industrial property.

Art. 15.— The movable or immovable nature of the rights to a share of a succession that is opened, of a partnership or company in dissolution, or of a community of property in liquidation, depends upon the nature of the assets received by each person interested when a division takes place. The nature of an alternative claim, having for object cither movables or immovables at the option of one of the parties, depends in like manner upon the nature of the things selected to provide for payment.

Art. 16.— Things are principal or accessory according as to whether they can be made use of to their full extent or not without being used together with something else on which they are dependent. Thus immovables, which arc such by reason of the purposes for which they arc employed, are accessory to immovables which are such by reason of their nature ; real servitudes are accessory to the dominant property: guaranties of claims arc accessory to such claims. Any alienation of the principal thing carries with it that of its accessories unless the contrary be expressed.

Art. 17.— Things may be considered : As individual or specific objects; such as a specified or determined house, field, or animal; Or as quantities in weight, number, or measure; such as a sum of money, a koku of rice, a hogshead of wine ; Or as a collection of objects, more or less alike, and susceptible of increase or decrease: such as a flock of animals, books in a library, merchandise in a shop: Or, lastly, as the universality of property making up all or part of a patrimony: such as all the movables or all the immovables of a succession, or the whole of a succession, or some proportionate part of the same.

Art. 18.— Things are by their nature susceptible or not of becoming used up the first time they are used. This distinction finds its chief application in matters of usufruct, and loans for use and consumption.

Art. 19.— Things are fungible or not fungible according as to whether by intention of the parties, or by law, they can. or cannot, be replaced by other things, which are regarded as equivalents. Things of quantity and things which arc used up by first use are, in general, to be considered as fungible by intention of the parties.

Art. 20.— Things arc divisible or indivisible according as to whether they are susceptible or not of being divided up, cither materially, or mentally, or into aliquot parts. The greater part of real servitudes, and certain obligations to do or to abstain from doing are, by reason of their nature, indivisible Mortgages and other real securities for claims are indivisible by law. A thing is indivisible by intention of the parties when the benefit that these intend by agreement should be derived from it cannot possibly be attained by its partial prestation.

Art. 21.— Things arc appropriated or not appropriated. Appropriated things arc those which form a part either of a private patrimony or of the public patrimony. No) appropriated things arc things that arc either without a master or that are common to all.

Art. 22.— Things without a master arc those that do not belong to any person but are capable of becoming subject to a right of ownership: such are : property of any kind that has been abandoned, animals in a wild state, birds in a state of liberty, fish in rivers and in the sea.

Art. 23.— Things that are common to all are those of which the right of ownership cannot become vested in any person and of which the use belongs to all ; such are : air, light, the high seas, running water, and the water of unenclosed lakes or ponds.

Art. 24.— Appropriated things, which do not belong to private persons, form a part of the public or private property of the State, or of the private property of Ken or Fu, or of Gun or Ku. The alienation and administration of such things is governed by the administrative laws.

Art. 25.— Things form a part of such public property when they are devoted to any national use or employment; such are: 1. The sea within territorial limits and the coast line up to high water mark of the highest equinoctial tide ; 2. Roads, railways, rivers and canals that arc navigable for rafts, boats, or larger craft, as well as their bed ; 3. Forts, ramparts, and other works for the defence of places devoted to purposes of warfare, or for the defence of the coasts; 4. Military and naval arsenals, and all arms, material, artillery trains, and equipment of any kind whatsoever kept in the same; 5. Men of war, transports, and all other vessels belonging to the State navy, with their accessories ; 6. Imperial palaces, and buildings of the Central Government or local administrations.

Art. 26.— Things form a part of the private property of the State, Ken, Fu, Gun, or Ku, which are possessed by them as juristic persons on the same footing as if they were private individuals, and which arc owned with the object of their bringing in some appreciable revenue in money; such arc: deposits on the sea shore between high and low water mark, sea shore derelict lands, State, Ken, Fu, Gun, or Ku forests, woods, and pasture lands. Immovables which have no particular master belong as of right to the State; it is the same with the succession of persons who die without heirs. The right of ownership to land, river, and sea derelict objects is governed by special law.

Art. 27.— Things are trafficable or not trafficable according as to whether they arc able or not to become the subject of a private right of ownership or of claim, or whether those to whom they belong have the power or not to make them the subject of any special agreement. Things which form a part of the public property of the State, and things in which, in the interest of the public good, it is forbidden by law to traffic, such as: successions not yet opened, titles and rank borne as a mark of merit, public appointments, civil and military pensions, arc not trafficable.

Art. 28.— Things arc alienable or inalienable. Rights of use and habitation when separated from the right of ownership. real servitudes considered separately from the dominant property, mining concessions and other privileges or monopolies granted by the Government are as a general rule inalienable, notwithstanding that they may be trafficable. Other things, the alienation of which is not forbidden by law, or by the will of man in cases in which the law permits such prohibition, are alienable.

Art. 29.— Things are prescriptible or not prescriptible according as to whether they are susceptible or not of being acquired by mere possession under the conditions required by law.

Art. 30.— Things are liable to seisure or not liable to seisure according as to whether the creditors of the persons to whom they belong arc able, or not, to insist on a forced sale of them in order to get paid out of the proceeds. Things which are not trafficable, things which are inalienable, and also things the seizure of which is either forbidden by law, or by some disposition of man, are not liable to seizure; such are : State annuities, and life annuities or pensions for maintenance, which are declared to be not liable to seizure by the person voluntarily founding the same at the time of his so doing.

PART I. REAL RIGHTS. CHAPTER I. OWNERHSIP.

Art. 31.— Ownership is the natural right to use, enjoy, and dispose of a thing in the fullest manner possible, within the limits and under the conditions prescribed by law, or by ordinance, or by private agreement. The rules and conditions under which the owner of a thing acquires whatever becomes incorporated with it or joined to it accessorily, or whatever results from its undergoing a complete change, are laid down in Book III.

Art. 32.— The owner of an immovable may, subject to payment of an indemnity prior to giving up possession, be forced to cede his right of ownership to the State, or to a Ken, Fu, Gun, or Ku on grounds which the law recognizes and declares to be grounds of public utility ; the amount of such indemnity is to be fixed according to the special laws governing expropriation. With respect to movables, whether corporeal or incorporeal, expropriation on the ground of their being required for public utility can only take place by virtue of a special law made for each particular case. This provision is, however, not to be applied to rights of pre-emption which now, or which may hereafter, belong to the State or the public administrations, nor to the requisitioning of provisions or supplies in time of siege, of war, or of any public calamity.

Art. 33.— An owner my be compelled, subject to payment of an indemnity, to permit his property to be temporarily occupied in order to facilitate the carrying out of any work of public utility.

Art. 34.— Servitudes relating to the extraction of materials, straightening of frontages, felling of wood, drawing of water, and any others established in the public interest, whether general or local, are governed by the administrative laws.

Art. 35.— The owner of land can construct any thing on it, or plant or cultivate it, or make ponds on it, as he sees fit, and can in like manner do away with any thing constructed, planted or cultivated on it, or with any pond. Underneath the surface he may make any digging, or excavation, or extract any material. He must, however, in either case comply with the requirements, and act within the limits established in the interests of the public by the administrative laws. The other restrictions and conditions attached to the exercise of the right of ownership in the interest of neighbouring property are provided for in the Chapter on Servitudes.

Art. 36.— An owner may make excavations with a view of discovering any mines that may exist in his property ; but he can only commence to work the same after he has obtained a concession from the Government in accordance with the special laws governing mines.

Art. 37.— If an owner is disturbed in, or deprived of, the possession of any thing belonging to him, he may bring against any person so interfering with him either a possessory action, or an action of revendication, according to circumstances, without prejudice, however, to what is contained in Book V with respect to prescription of movables and immovables. He may also bring a negatory action against any one who claims to exercise any right of servitude over anything belonging to him, and which he contends does not exist. The competency of the Courts, and the mode of procedure in all such cases is provided for in the Code of Civil Procedure.

Art. 38.— If a thing belongs to two or more persons in common, and their shares therein, whether equal or unequal, are undivided, each coowner can make use of the thing in its entirety, but only for the purposes for which it is intended, and provided that he docs not prevent his co-owners from also making use of it. The shares of such co-owners are to be presumed to be equal, unless there be proof to the contrary, and all fruits and products are to be from time to time divided according to the respective shares of the co-owners. Each co-owner may do any thing relating to the control or management of such thing which is necessary for its preservation. All expenses are to be borne by the co-owners in proportion to their shares. This Article is, nevertheless, without prejudice to any private agreement which may arrange otherwise respecting use, enjoyment, or management : and, in particular, without prejudice to any provisional partition.

Art. 39.— With respect to the disposal of a thing, owned as in the preceding Article mentioned, no co-owner can, without the consent of the others, change its material condition, nor burden it with any real right further than to the extent of his own individual share. Alienation by one co-owner of his undivided share puts the person to whom it has been assigned on the same footing with respect to the other co-owners, as he himself was, but without prejudice to the ulterior results arising from partition, which arc mentioned in Art. 15.

Art. 40.— Each co-owner has always the right, notwithstanding any agreement to the contrary, to demand partition of the thing owned in common. Co-owners may however, enter into an agreement to continue without partition during a fixed time not exceeding 5 years. Such postponement of partition may be at any time renewed, provided that the parties arc not bound thereby for a longer time than 5 years. This Article does not apply to undivided co-ownership arising from partyproperty in court yards, passages, wells, hedges or fences, walls, or ditches, which belong in common to two or more properties.

Art. 41.— Special provisions governing co-ownership as between heirs, husband and wife, partners, and shareholders arc established in Book III, Part II, in the Chapters dealing with Successions, Marriage Contracts, and Partnerships and Companies.

Art. 42.— If a house belongs to different persons, of whom each is owner of a separate part, their respective rights and duties are governed as follows : Each co-owner can dispose of his share as if it was a separate property ; Each co-owner has to pay, in proportion to the value of his share of the house, all general and local taxes, the cost of maintaining and repairing all parts of the building and its appurtenances which are of general use, as well as doors, enclosures, foundations, main timbers, main walls, roofs, staircases, wells, cisterns, pipes &c.; Each co-owner must individually bear the expenses pertaining to the floors and partitions of the part which belongs to him : if there are more stories than one each co-owner must contribute to the maintenance of that portion of the stairs which leads to his part.

Art. 43.— Right of ownership is acquired, preserved, and transmitted, both as between the parties to a transaction themselves as well as with respect to strangers, by the causes and by the means, which arc explained in Part II of this Book, and in Book III.

Art. 44.— Ownership becomes lost: 1. By voluntary or compulsory alienation ; 2. By the thing owned accruing to or becoming incorporated with some other thing belonging to another owner ; without prejudice, however, to the compensation payable by the person who thus finds himself enriched ; 3. By forfeiture, pronounced by virtue of the penal laws ; 4. By the resolution, rescission, or revocation, of an acquisition which is liable to these contingencies ; 5. By the voluntary abandonment of the thing owned, where made by an owner who has the power to dispose of it; 6. By any proceeding on the part of a competent authority which constitutes the thing owned no longer trafficable; 7. By total destruction of the thing owned; but without prejudice to the compensation due to the owner if such destruction has been caused by others.

Art. 45.— The character and effects of “acquisitive” prescription in connection with the acquisition or loss of the right of ownership to movables and immovables are provided for in the last Chapter of Book V.

CHAPTER II. USUFRUCT, USE, AND HABITATION.

PRELIMINARY PROVISION.

Art. 46.— Usufruct is the right to make use of and enjoy temporarily, and subject to the exercise of proper care, some thing the ownership of which is vested in another, but such use and enjoyment only extends to the purpose for which such thing is intended, and confers no power to change either its nature or its substance. Special provisions relating to Use and Habitation constitute an Appendix to this Chapter.

SECTION I. CREATION OF USUFRUCT.

Art. 47.— Usufruct is created cither by law, by the will of man, or by prescription. The cases in which it arises by virtue of law are specified in the Chapter on Paternal Authority, and in the Chapter on Successions. The means by which it may be voluntarily created arc the same as those by which ownership can be acquired or transferred. Usufruct can also be created by a right of lien over property of any kind that has been alienated, either onerously or gratuitously. The usufruct of the husband with respect to any property owned by him in common with his wife, or with respect to any property which belongs to his wife alone, is governed by the Chapter on Marriage Contracts in Book III. Acquisitive prescription of usufruct takes effect by the same lapse of time and under the same conditions as prescription of ownership.

Art. 48.— Usufruct may be created over any thing whatever, whether movable or immovable, corporeal or incorporeal, pro vided that such thing is trafficable. It may even be created over another usufruct or over a life annuity. It may be also created in general terms over a patrimony : that is either over all the movables or immovables, or over all the property whatever of which it is composed, or over an undivided share of such movables, immovables, or property in general.

Art. 49.— Usufruct may be created absolutely and without conditions, or a time may be fixed for its commencement or termination. It may also be created subject to a condition on the fulfilment of which its commencement or termination is to depend. Usufruct, whether created unconditionally, or whether dependent on a time named or on some condition, cannot extend beyond the life of the usufructuary.

Art. 50.— Usufruct can be created in favour of one or more persons, and in the latter case so that it may be exercised by them all either at the same time or successively. In no case, however, can it be created otherwise than in favour of persons already bom, or at all events conceived at the time when the right vests.

SECTION II. RIGHTS OF THE USUFRUCTUARY.

Art. 51.— The usufructuary is entitled to have himself put in possession of the things subjected to usufruct so soon as his right has vested, the time, if any, fixed for its enjoyment has arrived, and the conditions relating to the taking of an inventory, preparing a statement with respect to the condition of immovables, and giving security, as established in the following Section have been complied with. He must take the things in the state in which they are, and has no right to demand that they should be cither repaired or made suitable for use, unless they have suffered deterioration through the fault of either the person creating the right, or his heir, after the same has vested, or even prior thereto if there has been bad faith.

Art. 52.— The usufructuary is entitled to all fruits that the owner has received from the time when he could have entered into the enjoyment of his right, and even though the delay which has occurred has been his own doing; the usufructuary must, however, repay all expenses incurred in getting in and preserving the same. With respect to crops, which are attached to the soil cither by branches or roots at the time of his entering into enjoyment of his right, he is entitled to apply the same, when ripe, to his own use, without paying any indemnity to the owner for expenses of tilling, sowing, or cultivation.

Art. 53.— The usufructuary is entitled, in the same manner as if he were owner, to all fruits, both natural and civil, produced by the subject matter of the usufruct during the continuance of his right.

Art. 54.— Natural fruits, both such as are produced by the earth of itself as well as such as are obtained by cultivation, become the property of the usufructuary so soon as they are separated from the soil, whether such separation has been effected by the usufructuary himself, or in his name, or has happened Accidentally, or in consequence of theft. Nevertheless, if the separation of any fruits has occurred prior to the same having arrived at maturity, and if the right of usufruct in respect of the same happens to expire before the ordinary time at which the usufructuary should apply such fruits to his own use, any benefit derived from them must be handed over to the owner.

Art. 55.— The young of all animals belong to the usufructuary so soon as they are bom, as does also all wool obtained at the time of shearing. Milk and manure similarly belong to him.

Art. 56.— Civil fruits accrue to the usufructuary from day to day from the time that the usufruct vests up to the time of its termination, irrespective of the time of their payment, or of their becoming due. This provision applies to periodical money payments due by third persons in respect of things subjected to the right of usufruct; particularly, to rent payable for the lease of land or buildings, to interest on redeemable loans of money or on money placed on deposit, to dividends arising from shares or joint interests in companies or partnerships, to interest on irredeemable loans, and to monies payable for the working by third parties of mines, mineral surfaces, and quarries.

Art. 57.— If the usufruct includes movables of value, which cannot be made use of or enjoyed without becoming consumed, such as ready money, grain, wine, and other articles of food, the usufructuary is entitled to consume the same or to dispose of them, on condition that at the expiration of the usufruct he returns things of like quantity and quality, or their value, if such value has been estimated at the time of his right coming into force. The same rule applies to merchandise constituting a stock in trade that is subjected to usufruct, and to all other fungible things as defined in Art. 19 of the Preliminary Provisions.

Art. 58.— With respect to house furniture and other objects liable to become deteriorated more or less quickly by use, such as house utensils, linen, and clothing, the usufructuary is entitled to make use of the same according to the use for which they are intended, and to return them in the condition in which they arc at the expiration of the usufruct; provided, however, that no serious deterioration has taken place through his fault or neglect. He may also hire them out, at his own risk, if their nature admits of his so doing.

Art. 59.— The usufructuary of an annuity for life is entitled to receive for his own use all periodical payments in the same manner as the annuitant himself, unless there be a condition to the contrary. Any person, who has a right of usufruct over another right of usufruct previously created, is likewise entitled to exercise all the rights that belong to the titular usufructuary.

Art. 60.— The usufructuary of a breeding stud, of a flock or herd of homed or woolbearing animals, of a silkworm nursery, of poultry, and of other animals which arc only described by kind and number, is entitled to dispose every year of so many of such animals as it is not necessary to keep, so long as he maintains such stud, flock, &c. up to its proper standard, so far as he is able by means of increase from breeding.

Art. 61.— The usufructuary is entitled to apply to his own use the wood cut by periodical cuttings from bamboo plantations, and timber trees, provided he conforms with the practice and system of management observed by the preceding owners. If no system of management has been regularly established, the usufructuary must follow the forestry customs in force in the nearest neighbouring woods, whether belonging to private owners, or to the State, Fu, Ken, Gun, or Ku, but must give the owner a month's notice of the intended cutting.

Art. 62.— With respect to both small and large trees, which have not had their wood regularly cut by the previous owners, the usufructuary is only entitled to what they from time to time produce. Nevertheless, if any buildings subjected to usufruct have need of substantial repairs, the usufructuary may make use for such purpose of timber trees that arc either dead or have fallen down, and may, indeed, so far as is necessary, fell trees of that description for such purpose, provided the necessity of such step has been first established to the satisfaction of the Court after hearing the parties.

Art. 63.— The usufructuary is at any time entitled to take from woods and bamboo plantations whatever wood may be necessary to make props, stakes, or supports, for holding up other trees.

Art. 64.— He may take young trees from nurseries on the property for the purpose of keeping up woods or plantations to their proper standard or extending them. He may also from time to time sell the trees and shrubs of nurseries, if such has been the object with which they have been hitherto cultivated, or if their number is in excess of the requirements of the usufruct property. He must in cither case, however, keep the nurseries up to their normal condition by supplying them with a sufficient quantity of new plants and seeds.

Art. 65.— If the usufruct property contains quarries, either of stone or marble, or of lime, plaster, cement, sand, or other minerals, which have been already worked, but have not as yet been made the subject of special legislation, the usufructuary may continue to work the same for his own benefit in the same manner as the preceding owners have done. If such quarries have not been worked, or if the working of the same has been definitively abandoned, the usufructuary is only at liberty to take from them such materials as may be necessary for keeping in good order and repairing the buildings, walls, and other parts of whatever is subject to his right of usufruct, after the necessity for so doing has been established in manner in Art. 63 mentioned, and provided that the property is not damaged thereby. He may also, under the conditions above mentioned, make use of turbaries, and marl and clay pits.

Art. 66.— If the usufruct extends to mines or surface minerals, the working of which has been already conceded or authorized by the Government, the usufructuary is entitled to the benefit thereof, provided he observes the special laws governing mines in so far as relates to the manner and conditions of working. The creation of a usufruct over land, in which is a mine conceded to the proprietor of such land, does not confer any usufruct over such mine, unless the title creating the usufruct contains an express disposition to that effect.

Art. 67.— The usufructuary is entitled to the benefit of alluvions, islands, and other accretions which increase the usufruct property. Nevertheless, if an accretion has only taken place subject to payment of an indemnity by the owner, the usufructuary is to pay him interest on such payment during the continuance of his usufruct. He has no right whatever to any treasure which may be discovered by a third party in or upon the usufruct property.

Art. 68.— The usufructuary has, to the same extent as the owner himself, the right to hunt, shoot, and fish over the usufruct property.

Art. 69.— The usufructuary is entitled to make use of all real servitudes belonging to the usufruct property; he is responsible to the owner if he allows such servitudes to become extinguished by non-user.

Art. 70.— The usufructuary can bring directly against the owner, and also against third parties, real, possessory, and petitory actions, in so far as his right of enjoyment is concerned. He can also, within the limits of his right, bring affirmatory and negatory actions, both petitory and possessory, concerning servitudes alleged to exist either to the profit or prejudice, as the case may be, of the usufruct property.

Art. 71.— The usufructuary, unless a father or mother, is entitled to cede his right either onerously or gratuitously, to assign it by way of lease or usufruct, and also to mortgage it, if the thing that is the subject of the right of usufruct is capable of being mortgaged. In every case the rights conferred by the usufructuary are subject to the duration, limits, and conditions, to which his right of usufruct itself is subject.

Art. 72.— On the termination of the usufruct, the usufructuary is not entitled to any compensation in respect of fruits or other produce which he has omitted to turn to his own use, even although the same may still remain attached to the soil. In like manner he is not entitled to claim from the owner any indemnity for improvements, which he may have made to the subject matter of the right of usufruct, although its value may have been increased in consequence. He is only at liberty to remove any thing that he has constructed or planted, as well as decorations or additions made by him, provided he restores every thing thereby affected to its original state.

Art. 73.— On the termination of the usufruct, the owner is entitled to demand that the usufructuary or his heirs should cede to him for their then actual value, that is to say their value as fixed by experts, any thing constructed or planted which might under the provisions of the preceding article be removed by them. In order to give effect to this provision, the pulling down or removal of such things is not to be commenced until 10 days after notice has been given to the owner to declare whether he purposes to make use of his right of pre-emption, and he either refuses to do so, or remains silent. Where the owner has declared his desire to avail himself of the said right, he is deprived from so doing, if he has not paid the valuation fixed by the decision of experts, or of the Court, within one month from the time when the same became final: the above is without prejudice to any claim for damages, if any have been sustained through his failure to pay. The owner can always give notice beforehand to the usufructuary of his intention to avail himself of his right of pre-emption, in case the latter should desire to remove or pull down such things. The usufructuary and his heirs are entitled to remain in possession of buildings until the decision of experts or of the Court has been obtained, and the price paid.

SECTION III. OBLIGATIONS OF THE USUFRUCTUARY.

Art. 74.— The usufructuary, before entering into possession of any thing that is subjected to his right of usufruct, must have a complete and accurate inventory made of all movables, and a statement drawn up verifying the then condition of all immovables. Such documents must be prepared either in the presence of the owner, or in his absence, if he has been given proper notice to attend.

Art. 75.— If both parties interested arc present in person and have legal capacity to act or are duly represented, such inventory and statement can be prepared and signed without public formalities; otherwise they must be drawn up by a public official.

Art. 76.— The estimated value at which all fungible things are entered in the inventory is to be considered as equivalent to a sale of the same at that price, unless the contrary is expressly stated ; with respect to things that are not fungible, such estimated value has no such effect, unless the inventory expressly so states. The expenses of the inventory and valuation are to be borne equally by the usufructuary and by the owner.

Art. 77.— Where, at the time of creating the usufruct, the usufructuary has been exempted from having an inventory or statement made, the owner is always at liberty to have such document prepared at his own expense, either in the presence of the usufructuary, or in his absence if he has been duly notified to attend ; for such purpose, however, the owner has no power to prevent the usufructuary from entering into the enjoyment of his right of usufruct for more than 10 days. Art. 75 and the first paragraph of Art. 76 are applicable to such a case.

Art. 78.— Where the usufructuary has entered into possession without having such inventory or statement prepared, and without having been exempted from so doing, he is tn be presumed, until it be proved to the contrary, to have received the immovables in good condition. With respect to the movables, the owner may prove their nature and value by any of the ordinary means of proof, and even by common repute.

Art. 79.— The usufructuary is also not at liberty to enter into enjoyment of his right without having furnished a surety, or given other satisfactory security, for returning the property at the termination of his right of usufruct, as well as for payment of any indemnity for which he may be liable.

Art. 80.— In case the parties cannot agree as to the security to be furnished, the Court may either accept the undertaking of a third person, who is generally reputed solvent, or may permit the deposit of money or securities, either in the Treasury for Public Deposits, or in the hands of some third person agreed on by the parties ; it may also sanction a pledge or mortgage.

Art. 81.— With respect to the amount for which security is to be given, the Court cannot fix it at less than the amount of money which is directly subject to the right of usufruct, or in case of movables at less than their full estimated value where such estimate is equivalent to sale, or at less than half the same where the estimate has not such effect. In this latter case, however, if the usufructuary, during the time his usufruct is running, assigns or leases his right over valued movables, security is to be always required up to the full amount of the estimate. In respect of immovables the Court has to decide, as it thinks proper, for what amount security ought to be given.

Art. 82.— The document which creates the security must also comprise the personal undertaking of the surety or of the usufructuary, as the case may be, to pay the amount mentioned in the preceding Article.

Art. 83.— If the usufructuary is unable to furnish sufficient security, cither for movables or for immovables, the following course is to be followed, unless it be otherwise agreed on by the parties: Articles of food and other fungible things are to be publicly sold, and the money of the price realized, together with any other monies subject to the usufruct, is to be lodged in the Treasury for Public Deposits, or invested in Government bonds, in the joint names of both parties entitled, and the usufructuary is to receive the interest ; Other movables are to remain in the possession of the owner ; Immovables arc to be either leased to a third party, or retained on lease by the owner, and the usufructuary is to receive the rent after deducting therefrom the costs of repairs and other annual charges.

Art. 84.— If the usufructuary is only able to provide a part of the security required, he is to be at liberty to choose, to a proportionate extent, the objects that he will have handed over to him.

Art. 85.— The usufructuary may be exempted from giving security by the title creating the usufruct; but such dispensation ceases to have effect, if he becomes insolvent. If he has already entered into enjoyment of his right the objects in his possession arc to be thereupon returned to the owner, and the course laid down in the two preceding Articles is to be followed.

Art. 86.— Rights of usufruct, to which parents, as such, are entitled by virtue of law, are always exempted from the obligation of giving security. So is also the right of usufruct reserved by a donor for his own benefit over things given by him to other persons during his life time. Nevertheless, in the case of insolvency of the parents or donor, security must be given for ready money, and for the amount of any estimate which by Art. 76 is equivalent to sale.

Art. 87.— As soon as the usufructuary has entered into enjoyment of his right, he is bound to see, with the vigilance of a good administrator, that the things subject to his right are properly taken care of. He is liable for any thing that may be lost, or for any deterioration in value, through his own fault or neglect; but, without prejudice to any steps that may be taken against him by virtue of Art. 107 in order to protect the owner's rights.

Art. 88.— If things subjected to usufruct have either wholly or partially perished by fire, the usufructuary is to be presumed to be in fault, unless he can furnish proof to the contrary.

Art. 89.— The usufructuary is bound, without any right to claim for compensation, to make ordinary repairs necessary to keep in good order both movables and immovables. He is not obliged to make important repairs, unless the same have been rendered necessary by his own fault, or by the absence of ordinary repairs. If he makes the same, although not obliged to do so, he is not entitled to claim any indemnity on their account.

Art. 90.— The owner, also, is not bound to make important repairs : if he has the same done, he is not entitled to claim from the usufructuary any contribution towards the expense.

Art. 91.— Repairs to buildings, which are to be considered as important, are: repairs, although only partial, to the main walls or vaulted roofs, or the changing of one or more of the main timbers. The following are also important repairs : repairs to roofing, support walls, dikes, and enclosure walls, either in their entirety or for more than one tenth of their whole surface.

Art. 92.— The usufructuary is bound to pay all ordinary annual contributions and other ordinary annual public charges, general as well as local, that are levied on the property of which he has the enjoyment.

Art. 93.— With respect to extraordinary charges or contributions, which may be imposed on the usufruct property during the continuance of the usufruct, the owner has to pay the principal sum, the usufructuary paying him interest on the same so long as his right of usufruct lasts. The following are to be Considered as extraordinary charges: 1. Forced loans ; 2. New taxes, or any increase in old taxes, if the legislative measure establishing them has described them as being either temporary or extraordinary.

Art. 94.— If buildings have been insured against fire by the owner before the right of usufruct has been created, the usufructuary may be required to pay interest on the annual premiums ; but on condition that the owner is to permit him to have the enjoyment, so long as his usufruct lasts, of any indemnity paid in case of accident. The usufructuary is also entitled to insure at his own expense in the joint interest of the owner and himself; in this event, he has the right to repay himself all premiums out of any indemnity received, and to enjoy the use of the surplus so long as his right lasts. The above provisions are applicable in cases of usufruct over ships or boats, that are insured against marine risks.

Art. 95.— The usufructuary is also at liberty to insure buildings, but only to the extent of the value nf his usufruct; in this case, he alone has to pay the annual premiums, and, in the event of accident, the amount of any indemnity paid belongs to him for his sole benefit. This provision is also applicable to a usufructuary, who insures crops or produce against frost, hail, or other accidents of nature.

Art. 96.— The usufructuary with a right of usufruct over the whole, or over the whole of part of a succession, in manner provided by Art. 48, is under the obligation to pay interest on the debts owing by such succession, in proportion to the extent of his right. He is also liable, in the same proportion, for any payment in respect of life annuities or maintenance pensions owing by the said succession.

Art. 97.— The usufructuary of one or more particular things has not to contribute towards paying the debts of the person creating his right of usufruct, although the things subject to his right may happen to be encumbered with a mortgage, or a privilege. If he, as holder of such, has proceedings taken against him, he has his right of recourse against the debtor ; but, without prejudice, if grounds exist, to his right of action for breach of guaranty against eviction against the person creating the usufruct or his heirs.

Art. 98.— In the different cases in which a charge has to be met by payment of the principal by the owner, and by payment of interest by the usufructuary. one of the three following courses is to be adopted : 1. The owner is to pay the principal, and the usufructuary to pay him yearly interest on such payment; 2. The usufructuary is to advance the principal, and the owner to pay it back to him on the termination of his right of usufruct; or 3. A part of the things subject to the right of usufruct, and sufficient to make the payment required, is to be sold.

Art. 99.— If during the continuance of the usufruct any encroachment is made, or other things are done on the property which might jeopardize the rights of the owner, the usufructuary should inform him thereof; if he fails to do so he is liable for any loss incurred, as well as for any rights of prescription or of possession, which may have been acquired by third parties.

Art. 100.— Where the owner, cither as plaintiff or defendant, is a party to an action, which concerns his title of ownership to the usufruct property, he must make the usufructuary a party to such action, and the latter must pay interest on the costs of the same. In actions, which only concern the enjoyment of the right of usufruct, the costs are to be borne by the usufructuary. In both the above cases the usufructuary is exempted from liability for costs, if his right of usufruct has been created by a title under which he acquires a guaranty against eviction. In no case has the usufructuary to contribute to the costs of any action which affects only the interests of the owner.

Art. 101.— If either the owner or the usufructuary has not been made party to an action, when he should have been so, the judgment cannot prejudicially affect him who has not been made a party ; he may, however, avail himself of it for his own benefit, in accordance with the provisions of law relating to the unauthorized management of the affairs of others.

SECTION IV. TERMINATION OF USUFRUCT.

Art. 102.— Usufruct becomes extinguished by the same causes as put an end to the right of ownership, and which are mentioned in Art. 44. It also becomes extinguished : 1. By the death of the usufructuary ; 2 By the expiration of the time for which it has been constituted ; 3. By express renunciation on the part of the usufructuary; 4. By non-user without interruption for a period of 30 years ; 5. By revocation on grounds of improper enjoyment by the usufructuary.

Art. 103.— If a right of usufruct has been created in favour of two or more persons, to be enjoyed by them at one and the same time and undividedly, the share of any usufructuary dying passes to the benefit of the survivors, and the usufruct only becomes extinguished by the death of the last survivor.

Art. 104.— A usufruct created in favour of an incorporeal or juristic person becomes extinguished by a duration of 30 years, unless it has been created for a shorter period.

Art. 105.— Renunciation by the usufructuary of his right docs not release him from obligations previously incurred, and which have not been discharged. It cannot prejudicially affect third parties, who have acquired through or under the usufructuary rights over the subject matter of the usufruct.

Art. 106.— Non-user cannot be set up against minors or other persons against whom prescription cannot run. Moreover, all other provisions governing liberatory prescription arc applicable to non-user.

Art. 107.— If the usufructuary causes serious waste to the subject matter of his right, or if he jeopardizes its state of preservation by failing to do repairs or by enjoying the use of it improperly, the Court may put such thing under sequestration at the cost of the usufructuary, or may declare that his right of usufruct has become revoked in favour of the owner, at the same time fixing the amount or share of the fruits or revenues that the latter is to pay over annually to the usufructuary until one of the other grounds for extinguishment of the usufruct happens. The Court is at the same time to decide how the fruits and products of the current year are to be divided. The amount payable in the future in money or in kind to the usufructuary will accrue to him from day to day; at the end of the usufruct he will receive a part proportionate to the length of time that his right has run during the last year.

Art. 108.— Such revocation of the right of usufruct is not to prejudicially affect any right to compensation for damage already caused by the usufructuary.

Art. 109.— With the exception of the case provided for by Art. 107. fruits and products, still attached to the soil at the time the right of usufruct ceases, belong to the owner, without any liability on his part to compensate the usufructuary for cost of cultivation or working; the above is, however, without prejudice to any rights which may have been acquired by lessees paying rent either in money or by a share of the crops or products.

Art. 110.— If a building, subjected to usufruct, becomes totally destroyed by accident or by decay, the usufructuary is not to have the enjoyment of either the soil on which it stood or the materials, unless such building happens to be accessory to a property which is subject to his right of usufruct.

Art. 111.— If buildings burnt were insured, either by the owner or by the usufructuary, the latter is entitled to enjoy the indemnity received according to the distinctions pointed out in Art. 94 and 95.

Art. 112.— Where a thing subjected to usufruct has been expropriated on grounds of public utility, the usufructuary is to have the enjoyment of the indemnity paid.

Art. 113.— In the cases provided for by the two preceding articles, the usufructuary must give security for the sums of which he is to have the enjoyment, unless, in anticipation of such cases arising, he has been specially exempted from so doing.

Art. 114.— A right of usufruct over a lake or pond becomes extinguished, if the same becomes permanently dried up. In like manner a right of usufruct over land ceases, if the same becomes permanently flooded with water. Nevertheless, the right of usufruct begins to run again if, by natural causes, water reappears where it had disappeared or the flooding ceases, provided that thirty years of non-user of the property in its original state have not expired, and notwithstanding the judgment may have been rendered declaring the usufruct extinct by virtue of this article.

Art. 115.— A right of usufruct over a herd or flock of animals only becomes extinguished by the total loss of the whole herd or flock. In such a case, if the loss is due to some sudden catastrophe, the usufructuary has to hand over the skins to the owner.

APPENDIX. SPECIAL PROVISIONS RELATING TO USE AND HABITATION.

Art. 116.— Use is a usufruct the extent of which depends on the requirements of the person enjoying the right, and of his family. Habitation is the right of use of a building. Rights of use and habitation are created in the same manner, and become extinguished by the same causes as usufruct.

Art. 117.— For the purpose of ascertaining the extent of a right of use or habitation the following arc to be considered as composing the family of the person enjoying the right: his lawful spouse, legitimate descendants or ascendants, whether adopted or natural, who arc living with him, and his and their personal servants.

Art. 118.— If neither the title creating the right nor any subsequent agreement determines the manner in which the right of use over landed property is to be enjoyed, or mentions the buildings in which the right of habitation is to be enjoyed, the Court is to decide such matters after having heard the views of the parties concerned.

Art. 119.— Neither a right of use nor a right of habitation can be assigned or leased.

Art. 120.— Persons entitled to a right of use or habitation are required, in the same manner as a usufructuary, to have inventories made of movables, and statements prepared as to the state of immovables, as well as to give security. They arc bound to exercise the same care and are responsible to a like extent for their faults. They have, in the same manner as a usufructuary, and according to the extent of their enjoyment, to contribute towards repairs, annual charges, and costs of legal proceedings.

CHAPTER III. LEASE, EMPHYTEUSIS. AND SUPERFICIES.

PRELIMINARY PROVISIONS.

Art. 121.— The lease or hiring out of a corporeal thing, whether movable or immovable, gives to the lessee or hirer the right of using and enjoying the thing leased for a certain time in return for money or some thing else of value, which he undertakes to furnish periodically to the lessor; such is, however, without prejudice to the respective obligations to which the parties arc bound by agreement, or by law, as determined by Sections II and III of this Chapter. Emphyteusis and Superficies form the subject of an Appendix to this chapter.

Art. 122.— Contracts with respect to the hiring of labour, skill, or services, are provided for by Book III. Special provisions relating to the lease of live stock are contained in the same Book.

Art. 123.— Leases of property of any kind which belongs to the State, or to Fu, Ken, Gun, or Ku, or to public institutions, are governed by the administrative laws.

SECTION I. CREATION OF THE RIGHT OF LEASE.

Art. 124.— The right of lease is created by a contract called a contract of lease or hiring. In cases in which a right of lease has been bequeathed by will the heir must make a contract of lease with the legatee, in accordance with the terms and conditions of the will. The same course is to be followed in the case of a promise of lease : the promisor must enter into a contract of lease with the promisee.

Art. 125.— Contracts of lease of things are subject to the general rules governing onerous and synallagmatic contracts, except in so far as their application is hereinafter modified.

Art. 126.— Legal or judicial administrators of things belonging to others may lease such things, but any lease made by them cannot, without special authorization, be for longer than : Two years in the case of an animal or any thing movable; Five years in the case of a building used for a dwelling, or shop, or of any other construction: Ten years in the case of arable or grass land, or of a wood, a pond, a quarry, or any other part of the soil.

Art. 127.— An administrator can renew a lease for a similar period, provided he does so not more than three months, six months, or one year before the expiration of the previous term, according to the classification of the thing leased as given by the preceding article. An intended renewal is, however, not void, if the new term has already commenced to run at the time the authority of the administrator ceases.

Art. 128.— An administrator of things belonging to another may lease the same in consideration of a share of the fruits. He is also at liberty to stipulate for a fixed quantity of the produce as consideration : but without prejudice to the right of the lessee to make such payment, in whole or in part, in money at its current local value, if he so prefers.

Art. 129.— The rules laid down in the three preceding articles are also applicable to agents and other persons administrating by agreement, whether with general powers or only special powers, unless the authority by virtue of which they act has, in writing, either extended or limited their powers.

Art. 130.— Emancipated minors and married women with power to administer their own property can only lease the same on the same conditions as persons acting as administrators of the property of others.

Art. 131.— A lessee is not entitled to demand that an original lease, or a renewed lease, which does not comply with the requirements of the preceding articles, should be either cancelled or shortened, if the owner, having obtained full control of his rights, declares that he ratifies the same. He has only the right to at any time require the owner to express his intentions in this respect within a period of 8, 15, or 30 days, according to the class into which the thing leased enters by Art. 126. If the owner fails to declare his intention, the lessee has the right to declare that he treats the lease as binding for the term agreed to in the original lease or in the renewed lease.

Art. 132.— Where a lease of an immovable has been made by the owner and is for more than 30 years, it becomes an emphyteutic lease, and is governed by the special provisions established in the Appendix to this Chapter for that description of lease.

SECTION II. RIGHTS OF THE LESSEE.

Art. 133.— The lessee is entitled to derive from the thing leased the same benefits and advantages as a usufructuary, but subject to such restrictions, or augmentations, as may be attached to his rights by the act creating the lease, or as may result from any provision of law.

Art. 134.— The lessee can demand to be put into possession by the lessor of the thing leased at the time agreed on for the enjoyment thereof to commence without being obliged to have an inventory prepared or a statement as to its then condition made, or to give security, unless his contract stipulates that he is to do so.

Art. 135.— The lessee is entitled to require that the lessor, before delivery up by him of possession, should put the thing leased in a thoroughly good state of repair according to the purposes for which it is intended. The lessor is, in addition, bound during the continuance of the lease to make all repairs, whether substantial or ordinary, except the following and such as are rendered necessary by the fault or neglect of the lessee or of his servants, which have to be made by the lessee. The lessor is not bound during the continuance of the lease to do any repairs to tatami, tategu, paint work or papering. It is also no part of the duties of the lessor to look after the cleansing of wells, cisterns, drains, pipes for the conduct of water, nor indeed to do any repairs which are known as tenant's repairs.

Art. 136.— The lessor has the right to make any substantial repairs that may have become necessary, even although the lessee has not requested that they should be done, and although he may be put to some inconvenience in consequence. Nevertheless, if the making of such repairs lasts for more than one month, the lessee is entitled to receive compensation, if he has suffered loss in consequence ; if the same will deprive him, no matter for what time, of the use of the whole of the habitable part of the premises leased, or of such part of the premises as is absolutely necessary to him for his trade or industry, he is entitled to demand the cancellation of his lease.

Art. 137.— If the lessee's right of enjoyment is in any way disturbed or disputed by a third party on grounds w hich are not imputable to him, the lessor, after being duly notified thereof by the lessee, must intervene, and either secure to him his rights or compensate him.

Art. 138.— If such disturbance is caused either by irresistible force, such as war, inundations, or fire, or by the action of any public authority, and the lessee incurs thereby a loss of a third, or more, of his enjoyment of the premises leased, or of the annual profits derivable therefrom, he is entitled to have the rent proportionately reduced. The lessee is also entitled to have his lease cancelled, if such disturbance has lasted for three consecutive years, or, in the case of fire or other destruction of buildings, if the owner has not had them restored to their former state within a year from the time of the same happening.

Art. 139.— Where, in the case of a lease relating chiefly to land or to a building, the extent of the same is actually less or greater than that mentioned in the contract, this constitutes a good reason for cither reducing or increasing the rent, or for cancelling the lease, in the same manner as happens under similar circumstances in the case of sale.

Art. 140.— Where the lease of a building has been made with a view to the carrying on of a retail trade, and the lessor still retains some buildings adjacent thereto or in the same enclosure, he is not at liberty to let these to another person for the carrying on of a similar business, nor to use them himself for such purpose.

Art. 141.— The lessee may make such constructions or such planting as he sees fit on the property leased, provided that he does not change any thing already constructed or planted thereon without the express consent of the lessor. At the end of the lease he may remove any thing he has constructed or planted, if the premises leased can be restored to their previous state, but subject to the privilege conferred on the lessor by Art. 156.

Art. 142.— The lessee has the right, unless it be stipulated to the contrary, to assign his lease either gratuitously or onerously, or to sublet the thing leased for the time that his lease has still to run. In the first case he has the rights of a donor or vendor, and in the second case those of a lessor. In both cases he is bound by the obligations he has incurred towards the lessor, unless the latter has entered into a new agreement with the new lessee. Where the rent is payable by a part of the fruits or produce, without option of conversion into money, the assignment of the lease, or the creation of a subtenancy, can only take place with the consent of the lessor.

Art. 143.— The lessee of an immovable may mortgage his right, unless he is prohibited from assigning the same or subletting.

Art. 144.— A lessee, in order to protect his right of lease, or to enjoy any servitude belonging to the property leased, may bring against third parties such actions as are mentioned in Art. 70 of the Chapter on Usufruct.

SECTION III. OBLIGATIONS OF THE LESSEE.

Art. 145.— The lessee is bound, at the time of his entering into enjoyment of the thing leased as well as at any other time, to permit the lessor to make, in conjunction with him, an inventory of the movables as well as a statement of the condition of the premises leased, if the lessor so desires for the sake of preserving his rights; but the lessee has not to contribute towards the expenses of so doing. The lessee can similarly have such an inventory or statement made at his own expense, provided he has requested the lessor to be present. If no statement has been made of either movables or immovables, the lessee is to be presumed, unless there be proof to the contrary, to have received them in a good state of repair. In the absence of any inventory of movables the proof of what the same con sisted, and of the condition they were in, falls on the lessor, and has to be made out in the usual way.

Art. 146.— The lessee is bound to pay all rent which is stipulated for in money, at the times agreed on, and, in the absence of any agreemeent as to time, at the end of each month. Where a share of the fruits has to be paid over by way of rent, such share cannot be claimed until after the same have been gathered in, but it can be then claimed in full.

Art. 147.— In case of failure by the lessee to make the said payments, or to perform any of the other special terms and conditions of the lease, the lessor can take legal proceedings to force him to specificly perform such obligations, or can have the lease cancelled and recover damages, if any have been sustained.

Art. 148.— The lessee is bound, for the protection of the lessor, to store upon the leased premises the produce thereof, if the same are suitable for such purpose. He is not at liberty to remove such produce without permission, unless he prefers to pay in advance the rent for the current year.

Art. 149.— Subject to any agreement to the contrary, the lessee is not bound to pay any tax, whether ordinary or extraordinary, directly imposed on the thing leased ; taxes, however, for which he is directly liable under financial law may be either deducted by him from his rent, or else repaid him by the lessor. Taxes and charges levied on buildings erected by the lessee, or on any trade or industry carried on by him on the premises leased, are to be met by him.

Art. 150.— The lessee or his assignee is only entitled to use the thing leased for the purposes for which it was by agreement expressly or impliedly intended that it should be used, and, in the absence of any agreement in this behalf, according to the purpose for which it was employed at the time of the contract being entered into, or for such purposes as its nature admits without prejudicially affecting it.

Art. 151.— A lessee is under the same obligations as a usufructuary with respect to the preservation of the thing leased. If a third party is guilty of any trespass or other wrong in respect of the thing leased, the lessee must inform the lessor thereof, in manner mentioned in Art. 99 with respect to usufructuaries, and in default of so doing will be subject to the same penalty.

Art. 152.— Where there are several tenants of one and the same building, or of several buildings situated in the same enclosure and belonging to the same owner, they are jointly and severally responsible to the latter in case of fire, unless it be proved that all or some of them have not been to blame.

Art. 153.— The right of recourse of the person paying the damages is to be apportioned by the court amongst all the lessees, after taking into consideration the size of the different tenancies, as well as the danger, more or less considerable, which each tenant presented by reason of his vocation or habits.

Art. 154.— If the owner himself was occupying a part of the buildings burnt, he can only claim compensation from the tenants by proving that the fire did not originate in his part; in such case the joint and several liability of the tenants is limited to the total value of the premises leased by them.

Art. 155.— Where, at the end of the lease, the lessee does not return the thing leased, the lessor, in order to procure the doing of the same, can proceed against him cither by personal action or by real action as he may sec fit.

Art. 156.— The lessor, at the end of the lease, has the right to claim the handing over to him by the lessee at their then value, as fixed by experts, any construction, or any thing growing, which the lessee has the right to remove according to Art. 141. Art. 73 is applicable to this right of pre-emption.

SECTION IV. TERMINATION OF LEASES.

Art. 157.— A lease comes to an end as of course : 1. By the total loss of the thing leased, but without prejudice to the compensation due by the person to whose fault the loss is attributable ; 2. By total expropriation of the thing leased for reasons of public utility ; 3. By eviction of the lessor, or by annulment of his right to the thing leased, provided the same have been ordered by a court of law on grounds existing prior to the contract being made ; 4. By expiration of the term expressly or impliedly agreed on, or by the happening of a condition on which it has been stipulated that the lease should be cancelled; 5. By the time allowed by law, after the giving of notice to determine the lease, having expired, in the absence of any term living originally agreed on. A lease also comes to an end when it has been declared cancelled or rescinded by a court of law, upon the application of either of the parties, on the ground of non-performance of the conditions agreed on, or on other grounds provided for by law.

Art. 158.— In the case of partial loss of the thing leased by inevitable accident or irresistible force, the lessee may demand cither the cancellation of the lease, or its continuance at a reduced rent in accordance with the conditions of Art. 138. In the case of partial expropriation for reasons of public utility, the lessee has always the right to a reduction of rent.

Art. 159.— If, on the expiration of a lease for a fixed term, the lessee continues in enjoyment of the thing leased with the knowledge and without the disapproval of the lessor, a new lease is thereby impliedly agreed to upon the same terms and conditions as the one that has expired. Any surety that guaranteed the first lease is however released, and any mortgage given for a like purpose is extinguished. Such new lease is terminated by notice in the manner mentioned in the following articles.

Art. 160.— A lease, without any term being expressly agreed on, of a furnished house, of a furnished part of a house, or of furnished rooms, is presumed to have been made for a year, a month, or a day, according to whether the rent has been fixed at so much the year, month, or day ; but this is without prejudice to any implied continuation of tenancy, such as is provided for by the preceding article. The provisions of this article apply also to the case of a lease dealing with only one or more movables.

Art. 161.— If no length has been fixed for a lease of unfurnished buildings, or if, at the expiration of the term agreed on, there has been an implied continuance of the lease, the lease becomes terminated by a notice to determine given by one party to the other at any time of the year. The interval allowed between notice and quitting is: Three months in the case of the whole of a house: Two months in the case of the main portion of a building or of a dwelling house, or of even a smaller tenancy if the lessee carries on a trade or industry ; One month in the case of any other tenancy of unfurnished premises.

Art. 162.— In the case of furnished premises the interval to be allowed between notice and quitting, when a lease has been impliedly continued, is one month if the original length of the lease was three months or more; but if the lease was for less than three months then such interval is to be for a time equal to one third of its original length ; it is 24 hours for tenancies leased from day to day. Similar periods of time arc to be allowed in the case of a lease of movables, when the lease has been impliedly continued ; if the thing has been originally leased without any length of time being fixed, a fifteen days notice must be given in order to terminate the lease. If, however, the movables in question are such as furnish leased buildings, or arc such as arc to be regarded as immovables on account of the purposes for which they are intended, the lease of the same only expires at the same time as the occupancy of the buildings. In the case of a lease of rural property, without any term being fixed for its duration, notice must be given one year before the time of harvest of the principal annual crop. The length of leases of live stock is determined in Book III.

Art. 163.— The provisions of the three preceding articles relating to times of notice and quitting arc only applicable in the absence of any clearly defined local custom in respect of such times.

Art. 164.— In all cases in which a lease has happened to expire before the lessee has been able to gather or remove all the crops to which he is entitled, the lessor, or the new lessee, must give him the opportunity of doing so. Similarly, the lessee must permit the lessor, or the new lessee, to do, before the lease expires, any work that may be urgently needed on any part of the land on which the crops have been gathered, if he will not be put to any serious inconvenience in consequence.

Art. 165.— If the lessor has reserved to himself the privilege of cancelling the lease before the expiration of the term fixed, in case of his disposing of the thing leased, or of his retaking the enjoyment of it for himself, or for any other special reason, and also if the lessee has reserved to himself a like privilege in view of certain eventualities, or of the thing leased becoming useless to him, notice to determine must be given such time in advance as is fixed by the preceding articles, unless the time still to run under the contract of lease happens to be less.

APPENDIX. EMPHYTEUSIS AND SUPERFICIES. SECTION I. EMPHYTEUSIS.

Art. 166.— An emphyteusis is a lease of an immovable for a long term, for a term, that is to say, of more than thirty years. It cannot exceed fifty years ; if it has been made for a longer term, such term must be reduced to that limit. It can always be renewed, provided that it never exceeds fifty years from the time of such renewal. Leases of immovables made previously to the promulgation of this Code for a fixed term of even more than fifty years will remain valid for the full term assigned to them. Leases of waste or uncultivated land, also made previously without any term being fixed, can be terminated by a ten years notice given by one party to the other. In the case of leases that have been formally agreed to as leases in perpetuity, a special law issued subsequent to the promulgation of this Code will provide for the power of the emphyteuticary to purchase the right to receive rent, and the conditions on which such purchase is to be made.

Art. 167.— An emphyteutic lease can only be created by a contract of emphyteusis; in the case of a legacy, or promise of emphyteusis Art. 124 is applicable.

Art. 168.— The respective rights and obligations of the parties arc governed by the title creating the emphyteusis. In default of any special agreement, and subject to the modifications hereinafter mentioned, the rules already laid down in this Code for ordinary leases arc applicable to an emphyteusis.

Art. 169.— An emphyteuticary of land is entitled to alter its nature, provided that he does not thereby permanently prejudicially affect it. He may always drain off water from marshes. He may also lessen the flow of any water which runs through the property, if the same can be more beneficially worked in consequence.

Art. 170.— An emphyteuticary may reclaim waste lands and clear away bushes and bamboos, but he cannot, without the consent of the owner, root up trees that are periodically cut, nor even trees that arc not intended to be periodically cut, if the same are more than twenty years old, and may outlive the term for which the lease is to last.

Art. 171.— An emphyteuticary cannot in any case, without the consent of the owner, do away with main buildings, nor can he do away with any accessory buildings that are likely to outlast the length of the lease.

Art. 172.— In every case in which, under the preceding article, or under Art. 170, the emphyteuticary is authorized to do away with constructions or trees, the material and wood derived from them belongs to the owner.

Art. 173.— An emphytcuticary, as such, cannot continue the working of any underground mine under the land leased. He has no right to the rent, or other payments, made by persons having a concession of any such mine. He is entitled, however, to any indemnity payable for damage done to the surface by such concessionaries.

Art. 174.— Where, on emphyteutic land, there are mineral surfaces, or quarries of stone, lime, sand, or other materials, the lessee may continue for his own benefit the working of the same, if it has been already begun. If such quarries have not yet been opened, or if their working has been definitely abandoned, he may only take such stone and other material as are used for the improvement of the property.

Art. 175.— The lessor is to deliver the thing in the state in which it is at the time the contract of emphyteusis is made. He is not obliged to make any repairs, whether substantial or ordinary, during the continuance of the right of emphyteusis.

Art. 176.— Deterioration, arising from inevitable accident or irresistible force during the continuance of the emphyteusis, does not constitute a ground for reduction of rent; this provision is, however, without prejudice to the right of cancellation reserved to the lessee by Art. 181.

Art. 177.— The lessee has to pay, without any right to claim reimbursement, al) taxes on land or houses, whether ordinary or extraordinary, unless the law-establishing those of the latter description has declared otherwise.

Art. 178.— If a property has by one and the same contract been granted in emphyteusis to two or more persons, the obligation to pay the annual rent is joint and several for each lessee and his heirs.

Art. 179.— In the case of an assignment of or subletting under an emphyteutic lease, the obligations above mentioned pass to the assignee or sublessee, but the assignor continues, as surety, to guarantee their performance, unless the lessor has expressly released him from so doing, or unless the lessor has been a party to the writing of assignment and accepted the same without reserving his right.

Art. 180.— The lessor is entitled to demand the cancellation of an emphyteutic lease in case of default of payment of rent for three consecutive years. He is also entitled to demand cancellation upon any default of payment, if the lessee has been declared bankrupt or insolvent upon the demand of other creditors, unless such creditors can secure that the rent will be regularly paid.

Art. 181.— The lessee is entitled to demand the cancellation of the lease, when, by inevitable accident or irresistible force, enjoyment of the whole of the property for three consecutive years has become impossible, or where, through partial deterioration, there will not be obtained from it in the future more than sufficient to pay the annual rent.

Art. 182.— Upon the expiration or cancellation of the lease, the lessee has to leave without being entitled to compensation for any thing he has planted on the land, or for any thing he may have done to improve it. With respect to constructions, the provisions contained in Art. 156 for ordinary leases are applicable.

SECTION II. SUPERFICIES.

Art. 183.— Superficies is the right of possessing with full right of ownership constructions, timber trees, or bamboo plantations, upon land belonging to another owner.

Art. 184.— The right of superficies is created and transferred by the ordinary modes of acquiring and transferring immovable property.

Art. 185.— If there are already constructions on the land at the time the right of superficies is created, the title creating the same is subject, in respect to its substance and form, as well as to the publicity to be given to it, to the general rules governing the alienation, onerously or gratuitously as the case may be, of immovables.

Art. 186.— If the title creating the right requires that the superficiary should pay to the owner of the land an annual rent on account of the space occupied by the constructions, trees, or bamboos assigned, his rights and obligations with respect thereto are governed by the dispositions already established in this Code for ordinary leases, but without prejudice to what is said hereafter in Art. 188 with respect to their length. The same equally applies, so far as the said rent is concerned, if the land has been let for the purpose of building or for planting trees or bamboos.

Art. 187.— If, at the time of creating the right of superficies over existing constructions, trees, or bamboos, no mention has been made with reference to what part of the surrounding land should pass with them as being accessory, the superficiary has the right to a piece of land around each construction equal to the total superficies covered by the building ; the allotment of this space is to be made by experts, who are to take into consideration the respective formation of the ground and building, as well as the use to which both the ground and building arc devoted. In the case of plantations of trees or bamboos, the superficiary has the right to such space as the exterior branches of the trees or bamboos when full grown would spread over.

Art. 188.— If the title creating the right does not fix a term for the right of supercifies with respect to constructions then existing or to be erected by the superficiary, the right is to be presumed as created for a time commensurate with the time that such constructions last, but no substantial repairs are to be made to the same without the consent of the owner of the land. If trees or bamboo plantations are already growing on the land, or are, as above mentioned, to be planted by the superficiary, the right of superficies is to be considered as created to last until the time when the trees are felled, or have attained their full growth for purposes of use. The right of superficies is extinguished by the same causes as the right of ordinary lease, with the exception of notice given by the owner of the land. The superficiary can always give notice by giving the same one year in advance, or by payment of a year's rent in addition to what may be owing in lieu thereof.

Art. 189.— Constructions, trees, and bamboo plantations, both those existing or growing at the time of the contract of superficies well as those afterwards erected or planted by the superficiary, can only be taken away by him, if the owner does not claim to take them over at their value as fixed by experts. The superficiary is not at liberty to remove the said constructions, trees, or bamboos, unless he has one month previously given the owner of the property notice to state whether he intends to avail himself or not of his right of preemption. The provisions of Art. 73 with reference to all other points are applicable in such a case.

Art. 190.— Rights of superficies created prior to the promulgation of this Code are to be dealt with as follows: Those which have been created for a fixed period will expire as of course with the expiration of the time allotted to them; Those to which the parties have allotted no fixed time, and in respect of which no formal notice to determine is given at the time of such promulgation by one side or the other, will last as long as the buildings, in manner mentioned in Art. 188. In every case they will be subject to the right of pre-emption provided for by Art. 189.

CHAPTER IV.

SECTION I. DIFFERENT KINDS OF POSSESSION AND THINGS SUSCEPTIBLE OF BEING POSSESSED.

Art. 191.— Possession is cither natural or civil.

Art. 192.— Natural possession is the holding of a corporeal thing without the holder having any pretention to right over the same. Public property of the State is susceptible of natural possession alone by private persons.

Art. 193.— Civil possession is the holding of a corporeal thing, or the exercise of a right, with the intention of holding or exercising the same for one's own use. All rights, real as well as personal, are susceptible of civil possession ; but with such different results, according to circumstances, as arc hereinafter determined. Possession as applied to the civil status of persons is governed by Book I.

Art. 194.— Civil possession is said to be under a just title or on just grounds when it is founded upon a lawful act which from its nature was intended to confer the right possessed, although, owing to want of title or capacity in the grantor, it could not produce such result. If possession has been usurped, it is said to be without title or without grounds.

Art. 195.— Possession under a just title is said to be in good faith where the holder was not aware of the defects in his title when it was created. In the contrary case it is said to be in bad faith. Error of law cannot be set up to obtain the advantages of good faith, without prejudice, however, to what is said in Art. 206. Good faith ceases to exist so soon as the defects of the title are discovered.

Art. 196.— Possession is said to be vicious when it is violent or clandestine. It is violent when it has been obtained or maintained by force or by threats. It is clandestine when its existence is not made sufficiently apparent by external and public nets to persons interested. Possession ceases to be vicious so soon as it has become peaceable, or so soon as it has become public.

Art. 197.— Natural possession is said to be precarious when the possessor holds a thing, or exercises a right, in the name and on behalf of another. Possession ceases to be precarious and becomes civil so soon as the possessor has commenced to hold such thing or exercise such right for his own use. Nevertheless, when such precarious character arises from the nature of the title upon which possession is founded, it only ceases for one of the two following causes: 1. By service on the person on whose behalf possession existed of a judicial or extra-judicial writing containing a formal denial of his rights ; 2. By change of title, either by the party himself on whose behalf it has been held or by a third party, which gives a new ground for possession.

Art. 198.— A possessor is always to be presumed to possess on his own account, unless a precarious tenure be proved, cither by his title, or by circumstances connected with the fact of possession.

Art. 199.— Any one proving that he possesses by virtue of a just title is to be presumed to possess in good faith.

Art. 200.— Possession is to be presumed to be peaceable, unless violence be proved. Publicity is not to be presumed, it must be proved. Possession, proved to have existed at two different times, is to be presumed to have been continued during the interval, unless it be proved that it has been interrupted or suspended.

SECTION II. HOW POSSESSION IS ACQUIRED.

Art. 201.— Civil possession is acquired by the fact of taking a thing, or by the effective exercise of a right, with the intention of having as one's own the property in the thing taken, or the right exercised.

Art. 202.— The holding of the thing, or the exercise of the right, can be effected by means of a third party: but the intention of possessing must exist in the person who intends to benefit from the possession. Persons, however, without legal capacity, as well as moral or juristic persons, can obtain the benefits of possession by the acts and intention of their representatives.

Art. 203.— The taking of actual possession can be replaced by constructive delivery or by possessory declaration. Constructive delivery takes place when a thing hitherto possessed precariously is left in the hands of the possessor under a new title, whether the same be also precarious or be one which permits him henceforth to consider such thing as his own. Possessory declaration takes place when any one, who has previously possessed a thing as his own, declares that he henceforth keeps possession of it in the name and on account of another.

Art. 204.— Possession is transferred to heirs and to successors to whom it passes under a general title with the same qualities and defects as it had in the person of him from whom they derive title. Those, who have acquired a thing or a right by special title, may, as it suits them best, cither rely on their own possession, or on that of the grantor in conjunction with their own title.

SECTION III. CONSEQUENCES OF POSSESSION.

Art. 205.— Any one, who possesses civilly, is, until the contrary be proved, to be presumed to legally have the right he is exercising; he must always be defendant in petitory actions or in actions in revendication in reference to such right.

Art. 206.— A possessor, under a just title and in good faith, acquires for his own use both natural and industrial fruits and products, so soon as the same have been separated from the soil, either by the possessor himself, or in his name. Civil fruits are acquired by him for his own use from day to day, in the same manner as in the case of a usufructuary. In the case of a possessor in good faith by mistake of fact or law, but without just title, restitution of fruits that have become used up is to be dispensed with, if he can prove that he has not been enriched thereby. The advantages here mentioned cease to exist for the future, so soon as the possessor has discovered that the thing or right possessed does not belong to him; they also, in every case, cease to exist from the time of institution of legal proceedings, provided the same are eventually successful.

Art. 207.— A possessor in bad faith is bound to return, along with the thing or right revendicated, the fruits and products which he still has in kind, as well as the value of those which he has turned to his own use, or has allowed to deteriorate by his own fault, or neglected to collect. The revendicator must on his side reimburse such costs and expenses incurred as are usually chargeable on fruits. Any person possessing violently or clandestinely is always to be treated as a possessor in bad faith so far as fruits arc concerned, and even although he may have believed his title to be legitimate.

Art. 208.— Every possessor, whether in good or in bad faith, must be reimbursed by the claimant such disbursements as have been necessary, that is, made to preserve the thing, and such disbursements as have been useful, that is, which have increased it in value. No possessor has any claim to be reimbursed disbursements of luxury, that is, made for mere pleasure.

Art. 209.— When either of the two preceding articles are applicable, a possessor in good faith enjoys a right of retention over the thing until payment in full of the disbursements for which the revendicator is liable, a possessor in bail faith is only entitled to such right until payment of necessary disbursements.

Art. 210.— If the thing has suffered deterioration or depreciation which is imputable to the possessor, a possessor in bad faith is bound in every case to compensate the owner in full, but a possessor in good faith only in case he has benefit-ted thereby, and then only to the extent he has so benefited.

Art. 211.— The conditions under which a possessor is able to obtain acquisitive prescription of the right of ownership of movables as well as of immovables are laid down in Book III.

Art. 212.— A possessor in order to retain, or recover possession, has the right to institute the following possessory actions, according to the distinctions hereinafter mentioned, namely: actions of complaint, actions in restraint of new work or imminent injury, and actions for redintegration.

Art. 213.— An action of complaint can be brought by a possessor, who suffers from any disturbance, whether actual or legal, from third parties, and which implies some claim contrary to his possession. Its object is to put a stop to the interference, or to obtain reparation for it. It may be brought by the possessor of an immovable, of a universality of movables, or of any particular movable.

Art. 214.— An action in restraint of new work can be brought by the possessor of an immovable in order to put a stop to, or modify, work commenced upon a neighbouring property, the completion of which would disturb his possession. An action in restraint of imminent injurycan be brought by the possessor of an immovable, who has reasonable grounds for fear of injury, cither by the falling of a building, of a tree, or of any other object, or by the bursting of a dyke, of a reservoir, or of an aqueduct, or from the employment, without taking proper precautions, of fire, or of inflammable or explosive materials ; its object is to procure an order that measures which will prevent the injury are to be taken, or to obtain security for the making good of any damage that may be caused.

Art. 215.— An action of complaint, or an action in restraint of new work or imminent injury, can only be brought by a person having civil possession, which is both peaceable and public : if brought in respect of an immovable, the possession must in addition have lasted a full year.

Art. 216.— An action for redintegration can be brought by a possessor who has been dispossessed by force, by threats, or by deceit, of the whole or of part of an immovable, or of a universality of movables, or of any particular movable, provided that, so far as the defendant is concerned, the plaintiffs possession is not itself vitiated with a defect of similar nature. It cannot be brought against persons, who have succeeded under a special title to a possession which has been usurped, unless such persons have been parties to the unlawful acts which constituted the usurpation. It may be brought by a precarious possessor, as well as by a civil possessor, and it is not necessary that he should have been in possession for a year.

Art. 217.— Actions of complaint or for redintegration can only be brought within a year of the disturbance or dispossession on which they are grounded. An action in restraint of new work may be brought so long as the work objected to is not completed, unless a year has elapsed since such work, although still incomplete, has interfered with the possessor. An action in restraint of imminent injury may be brought so long as the peril exists.

Art. 218.— A possessory action cannot be joined to a petitory action. A judge in deciding a possessory action is not to base his decision on reasons derived from the legal rights of the parties, and likely to prejudge them. He cannot, moreover, postpone the decision of a possessory action until the parties have obtained a decision in a petitory action, although such action may be already pending.

Art. 219.— If a petitory action is instituted by either of the parties after a possessory action has been commenced, either before the same Court or before a different one, the decision of the petitory action is to be postponed until after the possessory action has been finally decided. A similar course is to be followed, if the defendant in a petitory action becomes, during the course of proceedings, the plaintiff in a posssessory action in manner provided by Art. 221.

Art. 220.— A person, who has commenced proceedings in a petitory action, cannot take possessory proceedings in respect of any thing that happened prior to the institution of the former action, even although he should discontinue the same; he may, however, prosecute, either as plaintiff or defendant, any possessory claim previously brought. In every case a person, who has had a petitory claim finally decided against him, is deprived of the right of taking possessory proceedings.

Art. 221.— The defendant, in cither a petitory action or a possesssory action, may, by way of cross action, become plaintiff before the same court in a possessory action of a similar or different description.

Art. 222.— If a possessory action is successful, the Court has, according to the nature of the case, to order either that disturbance be stopped, or the thing usurped be restored, or work denounced be discontinued or modified, or measures be taken to prevent imminent injury; it must at the same time condemn the defendant to pay such damages, if any, as have been sustained. In the case of an action in restraint of new work or imminent injury, it may also order the defendant to provide security to meet such eventual damages as may be awarded.

Art. 223.— A person, who has been defeated as defendant in a possessory action, can take petitory proceedings, but he must first satisfy the terms of any judgment against him. If the amount of any such judgment has not been ascertained, he must deposit in the court clerk's office a sum sufficient to satisfy it.

Art. 224.— Petitory proceedings may still be taken by a plaintiff who has been unsuccessful in a possessory action, if such failure was due to his being unable to prove the facts alleged, or if his claim has been dismissed on the ground of either being brought too late, or because his possession did not comply with the necessary conditions.

Art. 225.— The competency of the Courts, and the other formal rules that govern possessory actions are determined by the Law of Constitution of the Courts and by the Code of Civil Procedure.

SECTION IV. HOW POSSESION IS LOST.

Art. 226.— Possession is lost: 1. By cessation of the intention to possess either for oneself, or on behalf of another; 2. By the voluntary or legally enforced relinquishment of the hold of the thing, or of the exercise of the right; 3. By the taking of possession by a third party, although illegal, if it has lasted for more than a year without an action of complaint, or for redintegration being brought; 4. By total destruction or loss of the thing, or right, which constituted the subject matter of possession.

CHAPTER V. REAL SERVITUDES.

PRELIMINARY PROVISION.

Art. 227.— Real servitudes are burdens imposed upon a tenement for the utility of another tenement belonging to another owner. They are created by law or by the act of man.

SECTION I. SERVITUDES CREATED BY LAW. SUBSECTION 1. RIGHTS OF ACCESS TO AND WAY OVER NEIGHBORING TENEMENT.

Art. 228.— Every owner is entitled to obtain access to neighbouring tenements for the purpose of constructing or repairing walls or buildings erected just on the boundary, or too close to it to permit him to carry on such works on his own land.

Art. 229.— Except in case of urgency or of absolute necessity, works of construction or of repair are not to be done at a time when they might do injury to crops, or during the temporary absence of the owner or occupier of the neighbouring tenement. In no case, however, can they, without the neighbour's consent, justify an entry into any dwelling house of his, although the same may be contiguous to the buildings requiring repair.

Art. 230.— In every case the neighbouring owner or occupier, to whose tenement access is had, may recover compensation proportionate to the disturbance he has been caused, having regard to the nature of the work done and the time it lasted.

Art. 231.— If a tenement is shut in by one or more other tenements, so that it cannot communicate with any public way, a right of way must, upon payment of a twofold compensation, be furnished it over such tenement or tenements as far as a public way. A tenement is to be considered shut in or landlocked, if its only communication is with a canal, even although public, with a river, or with the sea, or if it is considerably above or below the level of a public way.

Art. 232.— The passage furnished must be broad enough for wheeled vehicles to pass, if, either temporarily or permanently, the requirements of the persons who live on the landlocked tenement, need it, or it is necessary for its working. In case the parties interested do not agree as to the necessity of the right of way, or upon the manner and conditions of its being exercised, the Court must decide, reconciling so far as it can the requirements of the landlocked tenement, and the usefulness of the way, with the least damage possible being done to the tenement or tenements it crosses.

Art. 233.— The work of making and maintaining the passage has to be done by the landlocked tenement. An original compensation payable in a lump sum is to be allowed to the owner of the tenement crossed, if it is necessary to do away with or alter houses, trees, or bamboo plantations. Further compensation has to be made by annual payments for loss of use and benefits of cultivation, and for permanent depreciation caused to the servient tenement.

Art. 234.— The right of way, and the obligation to pay annual compensation respectively cease to exist from the time the tenement no longer remains shut in. The owner of the dominant tenement can always relinquish his right of way and free himself from the corresponding liability by paying compensation for six months above what is due.

Art. 235.— After five years the owner of the dominant tenement can, whilst keeping the right of way, free himself from the payment of annual compensation by payment of a lump sum equal to twenty times its amount. The owner of the servient tenement is also entitled to demand capitalisation by payment to him of an amount similarly calculated, if the person who has to make the annual payments has allowed two years to pass without payment, after having been duly applied to therefor.

Art. 236.— If a tenement is shut in in consequence of its being an assignment of part of a larger property, or of its being a part of a larger property which has been divided off through division between co-owners, a right of way has to be allowed, without any claim for compensation, by the assignor or co-owner, but the same ceases so soon as a public way is made which no longer leaves such tenement shut in.

SUBSECTION 2. FLOW, UNDER, AND CONDUCT OF WATER.

Art. 237.— Owners of lower lands arc obliged to receive rain water or spring waler which naturally flows down from higher lands without any help from the hand of man. Although such flow may have been created or altered by the work of man, yet if more than thirty years have elapsed, or the date at which the same was done is unknown, the servitude cannot be disputed.

Art. 238.— If, by the bursting of dikes, embankments, or other works intended to keep back water, or by obstructions in an aqueduct or canal, water escapes over higher lands which increases such flow or alters its direction, the owners of lower lands can bring an action in restraint of imminent injury, and may be authorized to do repairs at the cost of the owner of the higher tenement in accordance with Arts. 214 and 222. If the flow of water to a lower tenement becomes obstructed by accident, the owner of the higher tenement may at his own cost undertake the necessary work to restore the flow to its normal state, but he is under no obligation to do so.

Art. 239.— Owners, subject to what is said in Art. 252 with respect to aqueduct servitudes, are not at liberty to let flow off over a neighbouring tenement either water that has been used for domestic purposes, or water which has been polluted by being used for industrial purposes or for irrigation. Owners have also no right to place their roofs or terraces so that rain water will fall directly from them on to a neighbouring tenement.

Art. 240.— The owner of a spring may make such use of the same as he sees fit, and may even deprive his neighbours of any surplus water which would naturally flow on to their land. This provision is, however, subject to what is said in the following article and in Art. 296, and to what is laid down in the administrative laws with reference to the making use of and enjoyment of mineral waters.

Art. 241.— If the water of a spring is necessary for the domestic uses of the inhabitants of a town, village, or hamlet, the owner is bound to allow so much of the same to flow off as is not of utility to him. The inhabitants can, moreover, but at their own cost, have any necessary works done on his land for the purpose of collecting and conducting such water, provided that they do not thereby cause any permanent injury to his tenement, and provided that they pay compensation. They will also have to pay compensation for the user of such water, unless they have already made use of it gratuitously for thirty years.

Art. 242.— In all other cases, if the surplus water from a private spring flows off from a tenement without benefiting anybody, the neighbouring owner, whose land is nearest to the place of exit of such water, can claim the privilege, but only precariously, of conducting it on to his land; for such purpose he can do such necessary work as is mentioned in the preceding article.

Art. 243.— Any owner, whose land abuts on running water which is not public property in the terms of Art. 25, and which docs not belong to any private individual, can make use of the same as it flows past for domestic requirements, for irrigating his land, or for industrial purposes, but he is not at liberty to alter its course. If, on the other hand, a tenement has water of a like nature flowing through it, the owner can alter its course within his own land for the same purposes, provided that he restores it to its natural course at its exit from his tenement. In both cases the riparian owners have the right to fish, upon complying with local regulations.

Art. 244.— If, in either of the two cases provided for by the preceding article, objections are raised by owners of lower lands to whom such water might be of use, the civil Courts are to decide the same, taking into consideration local customs, and having due regard to the requirements of domestic hygiene as well as the interests of agriculture and industries.

Art. 245.— The supervision, in general, however, of such waters as arc mentioned in the preceding articles rests with the Ken authorities, who may prescribe the proper steps to be taken for their free flow, as well as for their preservation and for that of the fish in them.

Art. 246.— The cleansing of the water courses above mentioned must be done by the riparian owners, who can cither settle among themselves how it is to be done, or can associate together for the purpose. In case they fail to have the cleansing done at the times fixed by the local authorities, the same is to be done by such authorities at the cost of the owners. The share which each owner has to contribute is to be recovered in the same manner as other local contributions.

Art. 247.— A riparian owner cannot make a raised bank on his side if any injury will result therefrom to the opposite riparian owner. If an embankment, recognized as necessary for a locality, affects the interests of several riparian owners, and they cannot settle among themselves how it is to be made, it can be made by the local authorities at the expense, in manner above mentioned, of all the owners interested.

Art. 248.— The provisions of the five preceding articles are applicable to lakes and ponds that are similarly situated.

Art. 249.— The user and supervision of water which is public property, whether of the public in general, or only locally, is regulated by the Central or Ken authorities in accordance with the administrative laws.

Art. 250.— Every owner, who has the right to make use of natural or artificial water which is outside his own tenement, is entitled to obtain for it, subject to payment of compensation, a passage across the intervening higher land, whether he requires such water for industrial or agricultural purposes, or for domestic use.

Art. 251.— The preceding provision applies also to any right to take water which has been conceded by the administrative authorities, irrespective of the duration of such concession, and also to like concessions made by private individuals, whether made for the life of the concessionary or for a fixed term, if such term has still at least 5 years to run at the time the right of passage is claimed.

Art. 252.— Similarly, the owners of lower lands arc obliged to provide a passage as far as a public way, or public drain or water course, for the flow of water arising from drainage, or from the drain ing off of water from land which is under water, as well as for the carrying off of the surplus of water used for domestic, agricultural, or industrial purposes. If the water for which passage is claimed has been polluted by its being used for domestic, agricultural, or industrial purposes, only an underground passage can be insisted on for it.

Art. 253.— The passage is, so far as possible, to be taken through those parts of the servient tenements where it will cause the least injury. In no case can it be claimed through buildings, nor through court yards or gardens appurtenant to dwelling houses.

Art. 254.— In every case the making and maintenance of such works as are necessary for the passage of such water are to be carried out at the expense of the owner in whose interest the same are done.

Art. 255.— The proprietor of a servient tenement can demand that the passage of water, both with respect to where it is to come on to his land as well as to where it is to leave it, should take place cither in whole or in part by means of conducts that already exist on his land, if the size of the same admit of its so doing, and if the water which already passes through them is not of a nature to do harm to that which has to pass to the dominant tenement. Under like conditions, he can also claim for the passage of his own water the right to make use of any works that have been made on his land by the owner of the dominant tenement. In cither case the one making use of works made by the other must contribute to the cost of their construction and maintenance in proportion to the advantages derived from them.

Art. 256.— Where a proprietor, who has the right to make use of running water in accordance with the first paragraph of Art. 243, finds it necessary to raise the level of the water by a dam, he can rest the same against the opposite bank upon payment of compensation. Where an owner, who has not made the dam, has the right to make use of the same water, he can avail himself of the dam for his own benefit by sharing the cost in manner mentioned in the preceding article.

SUBSECTION 3. FlXING BOUNDARIES.

Art. 257.— All neighbouring owners can respectively oblige each other to define the boundaries of their contiguous tenements by means of signs indicative of ownership, such as stones, trees, or posts, according to the custom of the place.

Art. 258.— An action to have boundaries defined cannot be brought in respect of buildings, or in respect of lands which are enclosed by masonry or woodwork. It also cannot be brought in respect of lands that arc separated from each other by a public road or public water course.

Art. 259.— An action to have boundaries defined cannot become prescribed, so long as the limits of the contiguous tenements have not been fixed either by private arrangement or judicially. Nevertheless, if one of the neighbouring owners relies upon acquisitive prescription, or even upon possession for a year of all or part of the tenement for the benefit of which the marking out of the boundaries is claimed, the claimant must first take proceedings either by way of revendication or for redintegration.

Art. 260.— Where, in cases other than the preceding, the limits are uncertain or are disputed, the fixing of boundaries is to be made in accordance with the contents and limits specified in the documents of title, or, in default of such documents, then according to such other proofs or documents as can fill their place If there is any dispute as to the right of ownership, this must be first decided by the competent Court.

Art. 261.— In case that in which the tenement of one of two neighbouring owners is deficient is found to be not possessed by the other, the owners of all neighbouring tenements, up to boundaries which are not in dispute, may be made parties to the action ; after hearing what each owner has to say boundaries binding on all are to be marked out. If upon taking the sum total of the contents of all such tenements there is an excess or a deficiency, the gain or loss is to be divided amongst all the tenements in proportion to their size.

Art. 262.— Any reductions, which have to be made in consequence of the preceding article, may be made by payment of compensation in lieu thereof, if, in order to give up the land required, it is necessary to cut through buildings or such enclosures as those mentioned in Art. 258.

Art. 263.— If the fixing of boundaries takes place among all the -parties interested ed without recourse to the Courts, an instrument in writing setting forth the facts, but in any form such parties sec fit, must be prepared, and such document is conclusively binding as a document of title either for or against them, in so far as the respective contents and limits of their tenements are concerned. In default of mutual agreement, a judgment, with plan annexed, must be rendered defining the said contents and limits; the boundary marks are to be pointed out, not only by mentioning how far distant they are one from the other, but also their distance in relation to some other fixed points in the locality.

Art. 264.— The cost of the boundary stones, trees, or posts, as well as the cost of placing them, is to be borne in equal parts by the neighbouring owners for whom they act as boundary limits. The expenses of survey, as well as of documents and other proceedings, arc to be defrayed by all the parties interested in proportion to the size of their respective tenements. Nevertheless, the expenses of proceedings, which specially relate to a claim that has been decided to be groundless, are to be borne by the losing party.

Art. 265.— The competency of the Courts and the other steps to be taken in an action for fixing boundaries arc provided for by the Law of Constitution of the Courts and by the Code of Civil Procedure.

SUBSECTION 4. ENCLOSURE.

Art. 266.— Every owner has the right to put an enclosure round his tenement of such height over the minimum prescribed by Art. 267 and of such materials as he sees fit. If his tenement is subject to a servitude, whether created by law or by. the act of man, which gives a right of entry or a right of way to a neighbouring owner, the means to make use of the servitude must be duly cared for.

Art. 267.— Where contiguous plots of land, forming courtyards or gardens between houses or buildings used as dwelling houses or for agricultural or industrial purposes, belong to different owners, each owner is entitled, irrespective of locality, to require his neighbour to contribute to the cost of the enclosure separating them. Apart from express agreement the enclosure can only be demanded in thin boards, or in bamboos placed touching each other. The height is to be six feet at least measured from the surface at the line of separation. If one tenement forms a terrace above the other, the enclosure is to be placed on such tenement, but need only be of a height necessary to made up six feet in all; it can. however, be in no case less than three feet.

Art. 268.— If an enclosure has been made and completed by one owner without his having called upon his neighbour to help towards it, he is not entitled to require the latter to share the expense.

Art. 269.— The expenses of making, maintenance, and repair are to be: borne jointly, each party paying a half. Nevertheless, if one owner thinks that it is to his advantage to have an enclosure made in different material or of greater height than that above laid down, he may always have the same done upon mere payment of the difference in cost of construction, but in this case the whole cost of maintenance and repair will have to be borne by him alone.

SUBSECTION 5. PARTY-PROPERTY.

Art. 270.— Where an enclosure of any kind whatever has been made at joint expense, upon the line separating one tenement from another, whether in consequence of the obligations determined in the preceding subsection, or voluntarily and by mutual consent, it belongs, together with the soil on which it rests, to the neighbouring owners jointly and undividedly and is called party-property. The same applies to walls in stone, brick, or masonry, separating the buildings of neighbouring owners, and to ditches, hedges, and fences, that have been dug out, or planted, or made at joint expense on the line that divides contiguous lands.

Art. 271.— Every enclosure or other separations between lands or buildings of whatever nature and whereever situated is to be presumed to be party-property, and to have been made at joint expense on the line dividing one property from the other, unless the contrary can be proved in favour of one of the adjoining proprietors by means of some written document of title, or by a prescription of 30 years, or by one of the tangible signs hereafter mentioned to which the law attaches a presumption against partyproperty.

Art. 272.— In the absence of any written proof or of prescription establishing exclusive ownership in one of the neighbouring owners the following, in respect of lands, are signs against party-property: 1. In the case of walls in stone, brick, or masonry, the existence on one side only of an inclined plane for letting rain water run off, or of projections, apertures, recesses, or any other work or ornament whatever; 2. In the case of enclosures made of wood or of bamboo, the fact that the posts of support are only on one side; 3. In the case of ditches, the earth being emptied out on one side only ; 4. In the case of hedges or fences the fact that only one of the tenements is enclosed all round. In these four cases the exclusive right of ownership is to be presumed to belong to that owner on whose side such special work has been done, or whose tenement is completely enclosed.

Art. 273.— If a wall in stone, brick, or masonry, or in wood-work, separating two buildings of un-equal height is in question, the presumption in favour of party-property docs not apply to that part of the wall which is above the lower of the two buildings. Such presumption docs not apply to any part of such wall, if it supports only one of the buildings.

Art. 274.— If there exists at the same time in the same enclosure, or other separation between two properties, signs both for and against party-property, the Courts arc to decide, according to the circumstances of each case, whether the right of ownership is vested jointly in the two neighbouring owners or belongs exclusively to one.

Art. 275.— Repairs to and maintenance of party-property separations are to be borne by the joint owners in equal shares, unless their dilapitated condition is attributable to the act of one owner only. Nevertheless, and provided an enclosure, such as is by Art. 267 rendered obligatory, is not in question, either owner may, upon paying for any repairs that he has rendered necessary, relieve himself of his liability for maintenance by renouncing his right to have the separation considered party-property, but he cannot do so if it happens to be a wall that supports a building belonging to him.

Art. 276.— Whenever party-property exists each neighbouring owner may make use of the party separation according to its nature and purpose, but so as at no time to endanger its solidity Each owner may rest a building against a party-wall, and when so doing can, if the nature and thickness of the wall permit, let into it beams up to three quarters of its depth, or fix chimneys up against it. or pass through it pipes for the passage of smoke, water, or gas, or for other domestic or industrial purposes; but he is not at liberty to make any opening in it, nor even to make in it any ordinary recesses for the convenience of the rooms. Each co-owner may also raise the height of a party wall if its strength will admit of his so doing, or if he has done at his own expense such work as may be required to give it the strength needed; in this case the part added on is not party-property. In the case of a party-ditch, each neighbouring owner can conduct into it rain water, or water used for industrial or domestic purposes, or artificially collected, provided the ditch has a sufficient slope to prevent an injurious state of stagnation arising in consequence. In the case of a hedge, the owners are to share equally the wood cut, and can respectively require that any trees in it of tall growth should be cut down.

Art. 277.— If a separation wall, whether in stone, brick, or masonry, has been constructed by one only of the neighbouring owners, the other can always claim to have it made party-property, either in whole or in part, upon payment of half of the value of the land, material, and labour, at their then worth. The same applies to so much of a wall, as is the result of heightening in manner mentioned in the third paragraph of the preceding article. Any one, who has thus made a wall party-property, can make use of it in the manner mentioned in the preceding article; but he is not at liberty to close up any openings in it if they have been created servitudes of view by the act of man. This provision does not apply to warehouses (kura or dozo).

SUBSECTION 6. VIEWS OVER THE PROPERTY OF ANOTHER AND SUFFERANCE LIGHTS.

Art. 278.— Buildings cannot have full or direct views over the tenement of another, cither from windows, balconies, or verandahs, unless they arc at least three feet distant from the line separating the two tenements. A view, which is obtained from a building or construction parallel to the line of separation, or which is at an angle of not more than 45 degrees (an eighth of a circle) off the parallel, is to be considered as a full view. Other views, called oblique or side views, which are obtained at an angle of from 46 to 90 degrees, can be made at a distance of one foot from the line of separation. The distance in both cases is to be calculated from the line of separation to the part, which is furthest forward, of the particular work of construction that gives the view.

Art. 279.— If the distance prescribed by the preceding article cannot be adhered to without inconvenience, the openings arc to be masked by screens, but such screens are in no case to project beyond the line of separation. In the event of it being impossible to put up a screen, only openings called sufferance lights can be made, the bottom part of which must be six feet at least above the floor, and which must have a fixed grating or framing in iron or wood, between the bars or meshes of which there must not be an interval of more than one inch at the most. Even in this latter case the neighbouring owner can insist on a screen, if he is willing that the same should project over the line of separation by a foot or more.

Art. 280.— The restrictions attached by the two preceding articles to freedom of view or light no longer apply, if the part of the neighbouring tenement fronting the construction in question is a construction without openings.

SUBSECTION 7. DISTANCES REQUIRED FOR CERTAIN WORKS.

Art. 281.— An owner, who wishes to dig in his property cither a well or cistern, or a ditch to receive refuse water or fecal or stercoraceous matter, must leave a space of at least six feet between it and the line of separation; without prejudice, however, to any works that may be necessary to stop the falling down of land, or the percolation of water. Three feet of space will suffice in the case of a cellar that is dry and covered over. In the case of a trench, small canal, or mere ditch, intended for the passage of water, the space must be equal to at least a half of its depth, but it need not exceed three feet ; such ditch must, however, be cut with a slope inclining away from the dividing line, or must be supported with a facing of stone or of wood.

Art. 282.— Trees, more than three ken high, are not to be planted or allowed to grow at a less distance than six feet from the line of separation. Trees, less than three ken but more than one ken high, must not be nearer to it than two feet. Other trees or shrubs may grow right up to the line of separation In all cases the neighbouring owner can require the owner of such trees to lop off branches which reach beyond the line of separation; he may himself cut away any roots which stretch into his tenement.

Art. 283.— The provisions of the two preceding articles arc not obligatory, if there arc local usages of long standing, and that arc undisputed, that arc different ; these are to be then observed. They are, however, applicable, notwithstanding that the separation between the two tenements is party-property.

Art. 284.— The necessary conditions, under which, in the interest of neighbours, dangerous, unhealthy, or nuisance causing industries are to be carried on, arc determined by the administrative laws.

GENERAL PROVISION APPLICABLE TO THE PRECEDING SUBSECTIONS.

Art. 285.— The burdens and conditions imposed on owners by this Section are applicable, both as to benefits to be derived as well as to what has to be submitted to, to the State and to Ken, Eu, Gun or Ku, in respect of property held by them under private title or as their patrimony. They are not applicable to public property, with respect to any thing that has to be submitted to, but can be availed of for its benefit,

SECTION II. SERVITUDES CREATED BY THE ACT OF MAN. SUBSECTION 1. THE NATURE OR SUCH SERVITUDED AND THEIR DIFFERENT KINDS.

Art. 286.— Neighbouring owners can create any kind of real servitude for the respective benefit and burden of their tenements, provided that the same is not contrary to public order. A servitude, of which the principal obligation is the personal doing of something by an owner or any person placed upon his tenement, as well as a servitude the chief benefit from which is personal to the owner or those who are his substitutes, is not to be considered as a real servitude : the first is to be treated as a personal right to services, the second as a real right of user or of lease, but without prejudice to what is mentioned in the second paragraph of Art. 305.

Art. 287.— Real servitudes continue to be attached accessorily to tenements, both as to benefits derivable as well as burdens to be borne, no matter into whose hands they pass. Beneficial servitudes cannot lie assigned, leased, or mortgaged, separately from the dominant estate; neither can they be burdened with another servitude.

Art. 288.— Servitudes arc indivisible, in the sense that, if a tenement belongs to several persons jointly, one of them cannot, to the extent of his share, deprive the tenement, if it be dominant, or release it, if it be servient of any servitude. Similarly in the case of partition of a tenement, or of the assignment of part of a tenement, they affect undividedly each part of it, if it be servient, or benefit each part of it, if it be dominant, unless it so happens that they could only be usefully exercised against a portion of it, if the tenement be servient, or could only confer some benefit on a portion of it, if it be dominant.

Art. 289.— The owner of a dominant tenement can bring an affirmatory action, either possessory or petitory, in respect of servitudes that he alleges belong to him. On the other hand, the owner of a tenement, which is alleged to be servient, can bring a negatory action, either possessory or |petitory, to prevent or put a stop to the exercise of the servitude he disputes. In both cases the rules and distinctions established in the Chapter on Possession are to be observed. The rights, benefits, and obligations of a usufructuary, and of a lessee, in relation to servitudes, arc established in Arts. 69, 70, 99. 144, and 151.

Art. 290.— The dispositions of the three preceding articles arc applicable to servitudes created by law.

Art. 291.— Servitudes are : 1. Continuous or discontinuous ; 2. Apparent or non-apparent; 3. Positive or negative. They arc created, exercised, and extinguished in the manner in the three following subsections mentioned.

Art. 292.— Servitudes arc continuous, when, by the mere position of the premises, and without any need of the aid of man, they procure for the dominant tenement some permanent advantage, or attach a burden without interruption on the servient tenement. They are discontinuous, when, in order to be of use to the dominant tenement, they have need of some present act of man.

Art. 293.— Servitudes are apparent, when they make themselves evident by external works, or by visible signs. In the contrary case they arc non-apparent.

Art. 294.— Servitudes arc positive: 1. When they authorize the owner of a tenement to derive some advantage from the tenement of another; 2. When they authorize him to do on his own tenement works, which the law in general prohibits in the interest of neighbouring owners. They are negative : 1. When the owner of a tenement is entitled to prohibit the doing of an act by his neighbour on his own land, which can in general be done by an owner; 2. When an owner is entitled to refrain from doing, or to refuse to permit to be done, on his own tenement any of those things, which the common law in the interest of neighbours requires to be done, or to be permitted to be done.

SUBSECTION 2. THE CREATION OF SERVITUDES.

Art. 295.— Any kind of servitude can be created by agreement between owners, or by will. In either case the ordinary rules governing the alienation of real immovable rights, either gratuitously or onerously, arc to be observed in order to give them validity, both as between the parties themselves, as well as with regard to third persons.

Art. 296.— Continuous and apparent servitudes can be acquired by prescription by a possession of such kind and for such time as is required for the acquistion of immovable property. If the right to take water from a neighbouring tenement is in question, the time for prescription only begins to run from the time when the owners, who bases his title upon it, has made, cither u|upon his own tenement, or on the servient tenement, some apparent work for the purpose of collecting and conducting such water for his own benefit.

Art. 297.— Continuous and apparent servitudes arc to be considered as tacitly created by the intention of the owner, when two tenements, actually separate, formerly belonged to one owner, who created or permitted to exist between them such disposition of the premises as would constitute such kind of servitude, and when at the time of their separation nothing has either been done, or agreed upon, to alter such state of things.

Art. 298.— Discontinuous and non-apparent servitudes can only be created by means of one of the two titles mentioned in Art. 295.

Art. 299.— The owner of an alleged dominant tenement is to be relieved from making out a title originally creative of the servitude, or from proving that he has directly acquired it by prescription or by intention of the owner, if he can produce a document issuing from the proprietor of the servient tenement, or from one of his predecessors in title, and which in itself recognizes the servitude as having been previously created in one of the three manners mentioned.

SUBSECTION 3. THE CONSEQUENCES OF SERVITUDES.

Art. 300.— A right of servitude legally acquired carries with it such accessory rights and powers as are, according to its nature, necessary for its exercise. Moreover, if the servitude has been created by a title, the general rules governing the interpretation of contracts and wills are to be observed ; if it has been acquired by prescription, its extent is to be measured by the extent of effective possession ; if it results from the mere intention of the owner, its extent is to be determined according to the presumed intention of the person creating it.

Art. 301.— In the case of a servitude of right of way, of a right to take water, continuous or discontinuous, of a right of depasture, or of any other which permits the taking of any substance from the tenement of another, if neither the title creating the same, nor any subsequent agreement, determines either the quantities which may be taken or the time, place, or manner, in which the servitude is to be exercised, either party may apply to the Court to settle the same after hearing what both parties have to say. In making such arrangement, the Court should take into consideration the respective requirements of the two tenements and should ascertain what have been the consequences of the previous exercise of the servitude.

Art. 302.— The owner of a tenement that is subject to a right to take water is not responsible for a failure of the supply, unless the same is due to his own act. In case there is not sufficient water for the requirements of both tenements, what is needed for personal and domestic use is to be first taken, and then what is needed for agricultural in preference to industrial wants; but in every case in proportion to the importance of the tenements. If there arc several dominant tenements they are to stand on the same footing with respect to the use of water for domestic requirements ; in respect of agricultural and industrial requirements, however, preference is to be given to that tenement whose right is of longest standing.

Art. 303.— The possessor of a servitude cannot change either the manner, time, or place, which have been duly fixed for its exercise, without the consent of the owner of the servient tenement, unless the latter cannot suffer any injury thereby. On the other hand, if the owner of the servient tenement has a legitimate interest in a change of like nature, and the owner of the dominant tenement will not sustain any injury thereby, he is entitled to ask for and obtain the same.

Art. 304.— If the creation of a servitude necessitates certain constructions or works on one of the two tenements, these are to be done by the owner of the dominant tenement, unless it has been agreed by the title creating the servitude that they are to be done by the owner.

Art. 305.— The maintenance and repair of such constructions or works as have to do with the exercise of a servitude arc likewise to be done by the owner of the dominant tenement, unless the repairs have been rendered necessary by the fault of the owner of the servient tenement. It can, however, be agreed that the owner of the servient tenement is to be responsible for maintenance and repairs, even although there may have been no fault on his part ; but in such case such owner can always free himself from his responsibility by abandoning in favour of the owner of the dominant tenement that part of the servient tenement, which is burdened with the servitude.

Art. 306.— The owner of the servient tenement does not lose the right to exercise all legal powers inherent to ownership, so long as no obstacle to the servitude nor any diminution in its utility is caused thereby. He has even the right to make use of works constructed on his tenement for the purpose of exercising the servitude, provided be contributes to the expense of their making or maintenance in proportion respectively to the use they are to him, and the increase of expenditure which is entailed in consequence.

SUBSECTION 4 EXTINCTION OF SERVITUDES.

Art. 307.— Servitudes are extinguished: 1. By expiration of the period of time for which they have been created ; 2. By revocation, cancellation, or rescission of the title of constitution or of the rights of the constituent; 3. By expropriation of the servient tenement for purposes of public utility; 4. By renunciation; 5. By confusion ; 6. By non-user for thirty years; 7. By acquisitive prescription of the liberty of the servient tenement in favour of a third party purchasing.

Art. 308.— The renunciation of a servitude must be express ; nevertheless, if the works executed upon the servient tenement for the purpose of exercising a continuous servitude have, with the express consent of the owner of the dominant tenement, and without reserve as to the future, been destroyed or put in such a state as to be no longer fit for use, the servitude is to be held to be extinguished by renunciation. Renunciation can only be effective if the person renouncing has capacity to alienate his rights to immovables.

Art. 309.— A servitude is extinguished by confusion, when the dominant tenement and the servient tenement become united in one seisin, nevertheless, if the act which has operated the union of the tenements is judicially revoked, cancelled or annulled the servitude is to be con sidered as never having been extinguished. If there is question of a continued and apparent servitude, and, the disposition of the premises having remained unchanged, the tenements, no matter at what time or for what cause, become again separated, the servitude comes again into existence in accordance with Art. 297.

Art. 310.— A servitude is extinguished by non-user when the owner of the dominant tenement has, whether voluntarily or not. allowed thirty years to pass without exercising the servitude. Such thirty years commence to run from the last occasion of user, in the case of a discontinuous servitude, and from the time when any material hindrance to its spontaneous working has occurred, if it be a continuous servitude. In cither case, if the hindrance to the user of the servitude is the result of an accident that has happened on the servient tenement, the owner of the dominant tenement is entitled to receive permission to re-establish, at his own cost, the previously existing state of things; if the hindrance has been caused by the act of the owner of the servient tenement, such re-establishment is to be made at his cost.

Art. 311.— If the dominant tenement belongs to several jointly, the exercise of the servitude by one only of the coowners preserves the rights of the others. In addition, the causes which suspend or interrupt the running of liberatory prescription are applicable to non-user of servitudes.

Art. 312.— A servitude is extinguished by prescription, if the servient tenement has been acquired and possessed by a third party as free from such servitude, and if it has not been exercised during the time required for acquisitive prescription of immovable rights.

Art. 313.— The extent of the advantages conferred by a servitude can be diminished, in respect to the manner, time, or place of its exercise, in consequence of non-user, or of prescription.

PART II. PERSONAL RIGHTS OR RIGHTS OF CLAIM, AND OBLIGATIONS IN GENERAL. PRELIMINARY PROVISIONS.

Art. 314.— A personal right or right of claim such as is defined in Art. 3 is always correlative to an obligation. An obligation is a tie of cither positive law or natural law, which binds one or more persons towards one or more other particular persons to give, to do, or to refrain from doing something. The person who is bound by the obligation is called the debtor; the person in whose favor the obligation exists is called the creditor.

Art. 315.— Obligations of positive law or civil obligations are those which the debtor can be forced to perform by means of law and authority: in special, by means of legal proceedings. Natural obligations do not engender legal proceedings; their effect is determined in the Appendix to this 2nd Part. The law does not interfere to enforce the performance of obligations which arc purely moral, or the observance of religious duties.

CHAPTER I. THE ORIGIN OF OBLIGATIONS OR THE CAUSES WHICH GIVE RISE TO THEM.

Art. 316.— Obligations derive their origin: 1. From agreements and contracts ; 2. From undue or unlawful acquisition ; 3. From unlawful injuries caused either voluntarily or by want of care; 4. From provisions of law.

SECTION I. AGREEMENTS AND CONTRACTS.

Art. 317.— An agreement is the concurrence of two or more wills with the object of creating, modifying, or extinguishing a right, whether real or personal. An agreement takes the special name of contract when the chief object it has in view is the creation of a personal right or an obligation.

SUBSECTION 1. DIFFERENT KINDS OF AGREEMENTWS OR CONTRACTS.

Art. 318.— Contracts arc either bilateral or unilateral. A contract is bilateral or synallagmatic when the parties mutually obligate themselves ; It is unilateral when one or more of the parties to it are obligated towards one or more of the others without reciprocity.

Art. 319.— Contracts are cither onerous or gratuitous. A contract is onerous or for consideration when each party to it sacrifices something in favor of the other or in favor of a third party. It is gratuitous or of beneficence when one of the parties to it receives some benefit from the other without himself supplying any benefit in return.

Art. 320.— Contracts are either consensual or real. A contract is consensual when it only requires for its formation the consent of the parties to it; It is real when it requires in addition to such consent delivery of the thing which is the subject matter of the contract.

Art. 321.— Contracts arc either solemn or not solemn. A contract is solemn when consent to it must be given in a public or authenticated instrument in writing. It is not solemn in all other cases.

Art. 322.— Contracts are either sure or aleatory. A contract is sure when, from the time of entering into it, its existence and results arc certain; It is aleatory, when its existence, or all or part of its results, are contingent on the happening of an event which depends on chance.

Art. 323.— Contracts arc cither principal or accessory. A contract is principal when its existence is independent of that of another contract. It is accessory in the contrary case. Nullity of a principal contract carries with it that of its accessory contract, unless the accessory contract has been entered into with the object of taking effect on the nullity of the principal contract. Nullity of an accessory contract does not carry with it that of its principal contract, unless the parties have treated the two contracts as indivisible.

Art. 324.— Contracts are either named or nameless. Named contracts are those which have a special designation and form the subject of special provisions in this Code or in the Commercial Code; they arc, however, also governed by the rules of this Second Part, in so far as there is nothing said to the contrary in the provisions which have reference to them. Nameless contracts are subject to the general rules here laid down; the special rules governing named contracts can also be applied to nameless contracts by applying those that govern the contracts with which they have most analogy.

SUBSECTION 2. CONDITIONS ESSENTIAL TO THE EXISTENCE AND VALIDITY OF AGREEMENTS.

Art. 325.— Four conditions arc essential to the existence of agreements in general: 1. The consent of the parties or their representative; 2. A fixed or certain subject matter; 3. A subject matter over which the parties have power of disposal; 4. A real and lawful cause or consideration. In addition to the above essentials solemn agreements or contracts can have no existence, unless the required solemnities have been observed, and real contracts no existence unless the thing to be restored has been delivered.

Art. 326.— Independently of the conditions essential to the existence of an agreement two other conditions are requisite for its validity: 1. Absence of mistake or du ress vitiating consent ; 2. Capacity of the parties or their lawful representative. Insufficiency of consideration does not of itself vitiate agreements, except in the cases determined by law.

Art. 327.— Consent is the concurrence of the wills of all those who appear in the agreement as the persons interested. Absence of consent on the part of any one of them prevents any agreement as between the others being formed, unless there is proof of a contrary intent.

Art. 328.— Consent may be given by writing, verbally, or even by signs ; provided, however, that in this latter case some obstacle existed to prevent another form of approval, and that clear proof exists of the full concurrence of the party so giving it. Consent may also under certain circumstances be given tacitly.

Art. 329.— An offer or proposal can be accepted so long as it has not been withdrawn to the knowledge of the person to whom it was made. When the party making an offer or proposal dies or becomes deprived of capacity to contract, an acceptance of the same by the other party is valid so long as such fact has not come to his knowledge. Where a time has been named for acceptance, an offer is withdrawn as of course by the mere expiration of such time. Mistakes occurring by post or telegram are at the risk of the sendor, but without prejudice to his right of recourse against the authorities, if grounds exist.

Art. 330.— There is no consent when in consequence of mistake the parties have not intended to make the same agreement or have not had in view the same subject matter or the same object. Mistake in the reasons which have prompted an agreement is never in itself a ground of nullity, except in so far as is herein subsequently provided when there has been fraud of one of the parties. Mistake with respect to the person of the other party to the contract renders the agreement absolutely null and void in cases in which the personality of the party is the determining cause of the agreement, as in contracts of beneficence. An agreement is voidable, but not void, on the ground of mistake with respect to the person, when the personality of the individual has been but a secondary cause for the agreement, as in an onerous contract which involves risk of the debtor's insolvency, or in an obligation to keep and take care of the thing forming the subject matter of the agreement.

Art. 331.— Mistake with respect to the thing forming the subject matter of an agreement only vitiates consent, when it has reference to one or more of the principal qualities that the party has believed to exist in it, and which have helped to determine him to stipulate or promise, or to acquire or dispose of such thing. Substantial qualities of things are to be presumed, unless there be proof to the contrary, to have been considered in the intention of the parties as principal qualities. Non-substantial qualities, on the contrary, are not to be considered as principal, unless the intention of the parties has been expressed to such effect, or unless such intention can be clearly inferred from the circumstances. The same applies to abstract or metaphysical qualities of things, such as their antiquity, their origin, or the purpose for which they arc intended. Mistake in calculation, or in name, date, or place, is governed by Art. 582.

Art. 332.— Mistake in law excludes or vitiates consent like mistake in fact, if it has had reference to either the nature, legal effect, or the object of the agreement, or to the legal qualities of the thing which is the subject matter or of any person, provided that the same have either wholly or partially determined the consent. Nevertheless, the Courts are not to admit the nullity of an agreement for mistake in law except under great reserve, and unless such mistake was under the circumstances excusable. Mistake in law is never to be admitted in order to exonerate the parties to an agreement from any penalty, from any legal forfeiture which is the result of time, or from any nullity arising from violation of the prescribed forms for documents, nor is it, as a general rule, to be admitted, if it relates to ignorance of legal provisions which concern public order.

Art. 333.— Fraud does not exclude or vitiate consent unless it has given rise to mistake which, according to the provisions of the three preceding articles, would in itself have produced such effect. In other cases it only constitutes ground for an action for damages against the person who has perpetrated it. Nevertheless, if the author of the fraud is the other party to the agreement, and if his fraudulent proceedings have been such, that without them the party who has been deceived would not have entered into the same, the latter can, on the ground of right to reparation, obtain the nullification of the agreement, as well as damages, if any have been sustained. In this case the nullification of the agreement is not to prejudice the rights of third parties who have acted in good faith.

Art. 334.— Duress excludes consent, where the approval of one of the parties to an agreement has been extorted from him by actual force which he was not able to resist. The same is the case where an unfair or rash promise has been given, or an unreasonable alienation has been made by any one in order to escape from imminent danger, even though arising from causes independent of the will of man, and which deprived him of the power of deliberation. Duress only vitiates consent if the actual force, threats, or danger, were capable of being resisted, but have induced the party to make the agreement in order to avoid a more serious, more immediate, or more proximate injury, cither to his own person or property, or to the person or property of another.

Art. 335.— Where the third person, whose person or property is placed in jeopardy by such force or threats, is the husband or wife or a relative, or relation by marriage in direct line of the party contracting, the violence is always to be considered as directed against the party himself. In the case of other persons whether relatives, relations by marriage, or strangers, the Courts are to take into consideration, according to the circumstances, the influence that the threats directed against such persons have had on the consent of the contracting party.

Art. 336.— Duress, under the distinctions above mentioned, either excludes or vitiates consent, without it being necessary to distinguish whether it arose from the act of the other party, or from the act, although without complicity, of a stranger.

Art. 337.— In all cases in which a party has the right to obtain nullification of a contract on grounds of duress he may, if he sees fit, elect to treat the same as valid, and only claim damages against the perpetrator of the duress. If the duress has not actually caused the making of the agreement, but has only produced the acceptance of disadvantageous terms, the agreement is to be upheld subject to payment of an indemnity.

Art. 338.— In every case of duress the Court is to take into consideration the age, the sex, the physical as well as mental condition, and the respective position of the parties Nevertheless, fear, induced by respect, on the part of descendants towards ascendants, and on the part of a wife towards her husband, is not alone a sufficient reason for annulling an agreement.

Art. 339.— Mistake, duress, fraud, insufficiency of consideration, and incapacity to contract are never to be presumed ; proof must be adduced by the party relying on the same. Means belonging to both parties to an agreement by which they can obtain its nullification do not reciprocally destroy each other, even although they may be founded on reciprocal wrongful acts, except upon payment of such damages, if any, as have been sustained.

Art. 340.— An action for nullification in the cases provided for in the preceding articles can only be brought by the persons incapable of contracting, or by those whose consent has been vitiated. Nevertheless, incapacity resulting from a penal sentence can be relied on by persons who have contracted with the person convicted.

Art. 341.— Where an agreement that might be annulled has not been attacked within the time specified in Chapter III. Section VII, it is to be considered as tacitly confirmed. Other cases of tacit confirmation and the forms which express confirmation is to take are determined in the same Section.

Art. 342.— An agreement can have as subject matter some thing that is not yet in existence and whose future existence is doubtful; in this case the person promising is bound to do nothing to prevent or restrict the realization of his promise, whilst on the other hAnd he must not omit or neglect to do anything which might help towards it. No agreement can, however, be entered into which gives or takes away rights to a succession not yet opened, even although the consent of the person whose succession is concerned has been obtained, unless it be in one of the cases expressly excepted by law.

Art. 343.— An agreement is null if it has for its subject matter the doing or refraining from doing something, and such doing or abstention is unlawful or impossible. A promise that a third person, over whom the person promising has no authority, will do or refrain from doing something, although such doing or abstention is lawful or possible, is to be considered as a promise to do something impossible. Nevertheless, a person is at liberty by expressly so stating to guarantee the doing or refraining from doing something by a third party, in which case the person promising becomes subject to the obligations which attach to sureties. A person may also agree to make himself liable for the fulfilment of a penal clause providing for the case of a third party failing to perform a promise that he has made for him. If the promisor has only undertaken to obtain the ratification of an engagement entered into by him in the name of a third party, he is released from his obligation so soon as such third party has ratified it.

Art. 344.— An agreement is null for want of consideration when the promisee has no lawful and appreciable interest therein. A promise is to be considered as without appreciable interest for the promisee, when it is made for the benefit of a third party, and is not accompanied by a penal clause. Nevertheless, a promise in the interest of another is valid if it is a condition accessory to a promise that has been made to the promisee in his own interest or to any gift made by him. In either case the non-performance of the condition only gives to the promisee the right to bring an action either for cancellation of the agreement, or for fulfilment of the stipulated penal clause.

Art. 345.— A principal or accessory promise can always be made for the benefit of one or more of the heirs of the promisee to such extent, and subject to such conditions, as the law governing Successions permits an heir to be benefited to the prejudice of others. Similarly, a principal or accessory promise can be made so as to bind one or more of the heirs of the promisor.

Art. 346.— A promise made in the interest of another, in the cases mentioned in the two preceding articles, can be revoked by the promisee for his own benefit or transferred by him to another person so long as it has not been accepted by the beneficiary.

Art. 347.— Whether the consideration has or has not been expressed in the instrument intended to embody the agreement, it is for the defendant to prove cither that no consideration exists or that it is fictitious or unlawful; it is only where* the consideration has not been expressed, that he is at liberty to cite the creditor to appear and declare upon what consideration he contends the agreement to have been based.

SUBSECTION 3. THE EFFECT OF AGREEMENTS. (a) THE EFFECT OF AGREEMENTS WITH RESPECT TO THE PARTIES THEMSELVES AND THOSE CLAIMING UNDER THEM.

Art. 348.— Agreements legally formed have the force of law for those who have made them. They can only be rescinded by mutual consent of the parties, except in those cases in which the law authorizes rescission at the will of one party alone.

Art. 349.— Persons may by private agreement modify the common law, add to it, or lessen its effects, provided that in so doing there is nothing done that is derogatory to public order or good morals.

Art. 350.— Agreements do not only produce those consequences which the parties have expressed and those which were tacitly intended to be included; they also produce the consequences which, according to their nature, equity, usage, or law, attach to them. Agreements must be performed in good faith.

Art. 351.— An agreement, whether onerous or gratuitous, to give any individually particularized or certain object, whether movable or immovable, transfers the right of ownership to the promisee immediately and irrespective of the delivery to be made : this is, however, without prejudice to what is hereinafter provided with regard to any suspensive condition by which such agreement may be affected.

Art. 352.— An agreement to give things which arc fungible or estimated by weight, number, or measure, obliges the promisor to transfer to the promisee the right of ownership in the things promised according to the description, quality, and quantity agreed on ; in this case the right of ownership becomes-transferred by delivery, or by selection and appropriation made by the parties in each other's presence.

Art. 353.— In the cases mentioned in the two preceding articles the thing given or promised must be delivered at the time and place agreed on at the risk and at the cost of the promisor. The expenses of removal to be borne by the promisee. The expenses of the instrument of title arc, if the agreement be onerous, to be borne by both parties, if it be gratuitous, by the beneficiary. Delivery of immovables is effected by handing over the title-deeds and evacuating the premises; without prejudice, however, to what is said in Art. 203 with regard to constructive delivery and possessory declaration. Delivery of rights of claim is effected by handing over the documents of title. If no time has been fixed for delivery, it can be demanded forthwith. If no place has been designated for delivery, it is be made at the place where the subject matter was at the time the agreement was entered into, if the same is some specified object, and at the place where the selection and appropriation have been arrived at, if it is something fungible ; in other cases it is to be made at the domicile of the debtor.

Art. 354.— If the subject matter be some specified object, the grantor must until delivery preserve the same with the care that should be exercised by a careful administrator and under liability for damages in case of negligence or bad faith. In the case, however, of a gratuitous alienation, the promisor is only bound to devote to the custody of the subject matter the same care as he exercises towards his own property. Other exceptional cases, in which a debtor is only bound to exercise a similar amount of care, are provided for when treating of the contracts that give rise to them.

Art. 355.— In every case in which the subject matter of an agreement to give is individually particularized, losses and deterioration arising through inevitable accident or from irresistible force are, subject to what is hereinafter said with reference to suspensive conditions, to be borne by the promisee, unless the promisor has undertaken to hold himself responsible for such risks ; likewise, all accretions to the subject matter are to be (or his benefit. Such loss is, nevertheless, to be borne by the promisor, if he is in arrear in delivery, and if the thing in question would not necessarily have perished or become deteriorated if it had been delivered.

Art. 356.— A promisor or any other debtor is to be deemed to-be put or constituted in arrear cither by a demand made through the Courts, or by any citation or requisition made in due and proper form, provided that the time fixed for performance has expired, or by the mere expiration of the said time, if there is an express provision of law or in the agreement to that effect, or, lastly, by the fact that the promisor has allowed that period of time to pass with the lapse of which he was aware that performance would be no longer of use to the promisee.

Art. 357.— The consequences of agreements containing an obligation to do or to abstain from doing certain acts are set out in the following. Chapter which treats of such obligations.

Art. 358.— Agreements affect, beneficially as well as prejudicially, heirs and others claiming generally under the parties to them ; those cases alone excepted in which there is some provision of law or some stipulation in the agreement to the contrary.

Art. 359.— Creditors can enforce the rights of their debtor and can bring such actions, whether real or personal, as belong to him. For this purpose they are to proceed either by way of execution, by intervening in actions already begun either by or against their debtor, or by indirect action against third parties by virtue of a judicial order of subrogation obtained in accordance with the provisions of the Code of Civil Procedure. Creditors cannot, however, make use of purely legal powers which belong to their debtor, or rights exclusively reserved to him personally, nor take in execution property declared by law or by agreement to be not liable to seizure.

Art. 360.— On the other hand creditors are subject to the consequences of obligations, renunciations, and alienations, consented to by their debtor, with the exception, however, of any thing done in fraud of their rights. Fraud exists when the debtor cither diminishes his assets or increases his liabilities with the knowledge that by so doing he will prejudice his creditors.

Art. 361.— The nullification of any thing that has been done in fraud of creditors is to be applied foi judicially by a revocatory action brought by them against the persons who have had to do with the debtor in such transaction, as well as against such persons (if any) as have acquired through them, subject to the distinctions made in the following article. , If the debtor has fraudulently allowed cither judgment to be given against him in an action to which he was defendant, or a claim brought by him to be dismissed, the creditors are to proceed by means of third party opposition according to the Code of Civil Procedure. In every case the debtor must be made a party to the proceedings. If revocation of what has been done cannot be specifically obtained from the defendants, they are to be ordered to pay damages to the creditors.

Art. 362.— Whatever transaction the creditors attack they are to furnish proof of their debtor's fraud ; moreover, if it be question of some thing done under an onerous title they must prove that there was collusion or participation in the fraud on the part of those who dealt with the debtor or were parties to the action. A revocatory action in respect of an alienation can be brought against persons who, with a knowledge of the fraud committed on creditors, have acquired their title either onerously or gratuitously from the person who originally acquired title from the debtor.

Art. 363.— Revocation can only be applied for by creditors whose rights existed prior to the fraudulent transaction, but, when obtained, it benefits all the creditors without distinction, unless there exists between them legal grounds for preference.

Art. 364.— A revocatory action becomes prescribed by the lapse of thirty years from the time the fraudulent transaction was committed; this period is, however, reduced to ten years from the time the fraud becomes known to the creditors. This provision applies also to third party opposition. (b) THE EFFECT OF AGREEMENT WITH RESPECT TO THIRD PARTIES.

Art. 365.— Agreements in general have only effect as between the contracting parties and those claiming under them . they cannot benefit or work to the prejudice of third parties, except in the cases and under the conditions prescribed by law.

Art. 366.— Where, however, a corporeal movable has been made by the owner the subject matter of two agreements of grant entered into with two different persons, he who has actual possession of such thing is to be preferred, and is to remain as owner, although his title may be of later date than that of the other person, provided that he was not aware of the first alienation at the time of making his agreement, and also provided he was not intrusted with the management of the property of such other person. This disposition is applicable in the case of credits to bearer.

Art. 367.— The assignee of a nominative credit cannot set up his rights against persons claiming under the assignor, or against the debtor whose debt has been assigned, until after the assignment has been duly notified to the latter, or has been accepted by him in a writing which is either authenticated, or bears a specified date. Acceptance by the debtor estops him from setting up against the assignee all exceptions or pleas in bar which he might have set up against the assignor: a simple notification only deprives him of such exceptions in so far as they have arisen since the date on which it was made. Until one of the above mentioned acts has been performed, all payments made by the debtor, agreements of release entered into with him, executions issued at the instance of creditors of the assignor or oppositions lodged by them, and new accretions to the credit, provided that the same have been duly notified or accepted, are to be presumed as having been made in good faith and can be set up against the assignee, who has neglected to take the proper steps to protect his rights. Bad faith on the part of persons interested can only lie proved by their admission of the same, or by their refusal to swear to its non-existence in judicial proceedings ; if, however, there has been fraud in concert with the assignor, such collusion can be established by any of the ordinary means of proof. Special rules with respect to the assignment of commercial securities by means of indorsement are contained in the Commercial Code.

Art. 368.— The following documents are to be transcribed in full in a special register kept in the Gun or Ku office (local government office) of the place where the property in question is situated: 1. All instruments in writing which are to take effect during the lifetime of the parties whether au thenticated or privately executed, and whether gratuitous or onerous, by which any alienation of the right of ownership to immovable property or of any other real immovable right is made; 2. All instruments in writing modifying or renouncing such rights; 3. All judgments deciding the existence of a verbal agreement having one of the above objects in view ; 4. All judgments declaratory of ownership after the sale of immovables taken in execution ; 5. All judicial or administrative instruments in writing ordering any expropriation on grounds of public utility. Special rules with reference to the publicity to be given to mortgages and privileged preferences over immovables are contained in Book IV. Art. 368(bis).— Transcription can, by virtue of a regulation, be replaced by depositing at the transcription office duplicate originals of the document to be made public. These, after having been duly compared and found identical, are to be marked with the transcription stamp by placing half the same in the margin of each sheet of each of them. One of such originals is to be kept at the said office and a note made of its contents in a special register; the other is to be returned to the party interested with a note in the margin of the place and day on which the deposit was made. Other formalities relating to transcription are determined by special regulations and by the Code of Civil Procedure.

Art. 369.— Transcription is to be made on the application and at the cost of the parties interested upon their showing their application to be well founded. A certificate of the transcription, containing an extract of the principal dispositions of the instrument transcribed, is to be given to the applicant. Any person is at liberty, upon payment of the fees, to apply for an extract of the transcription register concerning such immovables as he specifies.

Art. 370.— Until transcription, real rights acquired, modified, or recovered, in consequence of the instruments in writing above mentioned, cannot be set up against persons claiming through the party whose name remained as apparently entitled, and who have dealt with him in reference to such rights, or who have acquired from or through him rights incompatible with the existence of such rights, provided that in both cases such persons have acted in good faith and that they themselves, wherever the same is necessary, have had their title transcribed or noted. Bad faith and collusion can be proved in the manner in Art. 367 mentioned.

Art. 371.— Absence of transcription cannot be set up against the first acquirer by subsequent acquirers or assignees, even though they become so in good faith, who were bound by law, by justice, or by agreement, to have the first transcription made, nor by their heirs, or persons claiming generally under them.

Art. 372.— In cases in which actions, with a view of obtaining cancellation, rescission, or revocation of any alienation that has been transcribed, cannot be brought so as to prejudice subacquirers in good faith, the petition in the same is to be noted by entering it in extract in the margin of the transcription of the instrument attacked in order to prevent any transcription or entry being made which could be set up against the plaintiff. If such actions may be brought so as to include all subacquirers without distinction, the petition is not to be entertained by the Court until it has been noted in the margin of the transcription of the instrument attacked. A judgment annulling an instrument must also be noted underneath the note of the petition before it is put in force, even provisionally ; this must be done in every case, under penalty of payment of a fine of not less than to yen nor more than too yen by the party who has obtained the judgment, within one month from the time at which it became no longer liable to be attacked. If the petition is dismissed, or found to be barred by prescription, the Court is to order, of its own motion, the note of the petition to be struck out, and such order is to be carried into effect, so soon as the judgment dismissing the petition, or declaring it barred by prescription, has become no longer subject to attack. If the plaintiff discontinues his action, the note of the petition is to be struck out on the application of any party interested.

Art. 373.— Where the cancellation, rescission, or revocation of an instrument that has been transcribed is mutually agreed to without recourse to the Courts, such agreement is in every case to be considered as a voluntary reassignment, and is subject to transcription in manner ordered and provided for by Arts. 368 to 371 inclusive. Such transcription is to be noted by the keeper of the register as a matter of course in the margin of the transcription of the instrument annulled.

Art. 374.— Transcriptions and marginal notes made in registers can be disputed before the Courts by any of those interested, in order to have the same erased or rectified. The petition and judgment arc to be noted in the margin of the transcription of the instrument contested, in the manner, and under the conditions, in Arts. 372 mentioned. Persons with legal capacity, or those without capacity if duly represented or aided, can, without recourse to the Courts being necessary, consent to such erasure or rectification. Erasures or rectifications duly ordered by the Courts, or consented to without recourse to the Courts, cannot be set up against those persons who have had their rights properly transcribed or entered, unless these latter have been called upon to contest the same, or unless they have acquiesced in them.

Art. 375.— Keepers of registers are responsible towards the parties who apply to them anti also to those interested for their omissions or errors, whether in making the transcriptions, notes, erasures, or rectifications, mentioned in the preceding articles, or in making out certificates intended to make known the state of the registers. Subsection 4. The Interpretation or Agreements.

Art. 376.— In interpreting agreements the Courts must endeavour to ascertain the common intent of the parties rather than confine themselves to the literal meaning of the terms they have employed.

Art. 377.— Where an expression has not in every place the same sense or the same import, the sense in which it is used in the place where the two contracting parties have their domicile is to be given to it by preference ; if they have not both their domicile in the same place, the sense in which it is used in the place where the contract was entered into is to be preferred. Where an expression is, in itself, susceptible of two meanings, it is to be understood according to that which is most adapted to the nature and object of the agreement.

Art. 378.— All clauses of an agreement are to be used to interpret each other by giving to each the sense which agrees best with the instrument considered as a whole. If a clause is susceptible of two meanings, but only one of them would render such clause effective, it is to be interpreted according to such meaning, and not according to the meaning which would render it ineffective.

Art. 379.— The terms of an agreement, no matter how general they may be, are only to be presumed to comprise those objects with reference to which the parlies have proposed to contract ; on the other hand, if the parties have expressed one of the natural or legal consequences of the agreement, or its application to a particular case, they are not to be presumed by such fact alone to have intended to exclude the other consequences which usage or law attaches to it, or the other cases to which it can reasonably be applied.

Art. 380.— If the intention of the parties still remains in doubt the agreement is, in every case, to be interpreted against the promisee and in favor of the promisor. If the agreement is synallagmatic, the rule here laid down is to be separately applied to each clause that is ambiguous or obscure.

SECTION II. UNDUE ENRICHMENT, OR QUASICONTRACTS.

Art. 381.— Any person who finds himself enriched by the property of another without lawful grounds, whether voluntarily or not, and whether by mistake or knowingly, is liable to repetition for whatever has accrued to his benefit without being due to him. This disposition, subject to the distinctions hereinafter made, finds its chief application in the following cases : 1. Unauthorized management of the affairs of another person ; 2. Receipt of any thing paid over without being due, or supplied for a false or unlawful object, or for an object which has not been realized, or which has ceased to exist; 3. Accepting a succession incumbered with payment of a legacy or with other testamentary charges; 4. Increase to property resulting from accretion or from the work of another as mentioned in Book III, Part I. Chapter II: 5. Illegal application of fruits, products, and other profits to his own use by a person in possession of a thing belonging to another, and, on the other hand, to improvements made by a person to a thing so possessed, under the distinctions mentioned in Arts. 206 to 210 inclusive ;

Art. 382.— Any person who, without proper authority, either legal or judicial, voluntarily manages all or part of the affairs of an absent person, or of any other person whose property appears unprotected, is bound to account for all profits and advantages derived by him from any thing belonging to such other, and to transfer to him all rights and all rights of action that he may have acquired in his own name by reason of such management. He is bound to continue the management until the owner or his heirs can undertake it themselves. He is responsible for any damage caused to his principal through his fault or neglect, regard being had to the circumstances which induced him to undertake such management.

Art. 383.— On the other hand the principal must compensate such manager for all necessary or useful disbursements made by him during his management, and must release him from all engagements he has entered into on the same head or guarantee him from their consequences.

Art. 384.— Any person, not being a creditor, who has received any thing by way of payment, is liable to repetition, without regard to whether he acted in good faith or not, or whether the person who nude payment did so by mistake or knowingly.

Art. 385.— Where a person, who has received a payment, was in fact a creditor, but received the same from another person than the debtor, repetition only lies, if the person who made such payment did so by mistake. Such right to repetition expires, however, if the creditor has in good faith extinguished his right of claim in consequence of such payment. Both the above cases are without prejudice to the right of recourse of the person so paying against the true debtor, cither by an action on the ground of voluntary management of his affairs, or by privilege of subrogation as is hereafter explained when treating of payment.

Art. 386.— Where payment has been made to the true creditor by the true debtor, repetition only lies if the debtor has by mistake given in payment something of a different kind than that which he owed, or something which did not belong to him. Repetition docs not lie if payment has only been made before due date, or in a place other than where it should have been made, or in something of a quality, value, or goodness, different to that promised ; this is, however, without prejudice, in the case of mistake of one of the parties to his obtaining compensation, not exceeding the benefit derived by the other party, for any loss sustained in consequence.

Art. 387.— Art. 384 is applicable to such other prestations as arc mentioned in the second paragraph of Art. 381, even when they have not the character of payment. Repetition, however, of things or securities given for an unlawful object never lies, if the object was unlawful on the part of the person giving.

Art. 388.— Any person, who, in bad faith, has accepted the prestations mentioned in Art. 381, 2, must, in addition to the extent of his undue enrichment at the time of action, make restitution of legal interest on capital since he received it, fruits and products derivable from, specified or determined objects, although he may have neglected to collect them, as well as compensation for any loss or deterioration attributable to his fault or negligence, or arising from inevitable accident or irresistible force, if in the latter case it would not have happened had the thing remained in the possession of the person who delivered it.

Art. 389.— If the thing unduly received is an immovable and the same has been alienated, the person who delivered it can at his option cither proceed by an action of revendication against the third possessor, or by repetition against the person who has disposed of it. In the case of bad faith repetition lies for the estimated value of the immovable; in the case of good faith it only lies for the price that has been obtained for it or for the rights of action that exist in respect to the same.

SECTION III. UNLAWFUL. INJURIES, OR DELICTS AND QUASI-DELICTS.

Art. 390.— Any person who by his fault or negligence causes injury to another is bound to repair it. If the injurious act was voluntary it constitutes a civil delict; if it was involuntary it constitutes only a quasidelict. The extent of liability for delicts and quasi-delicts is the same as that for fraud and for faults committed in the carrying out of agreements, and is regulated in manner provided in Section II of the following Chapter.

Art. 391.— Every one is responsible not only for his own acts and omissions but also for the acts and omissions, under the distinctions hereinafter mentioned, of persons over whom he has authority, as well as of things which belong to him.

Art. 392.— An ascendant exercising paternal power is responsible for injuries caused by his descendants who are still minors, and who live with him. The same responsibility, provided they live together, attaches to a guardian for injuries caused by his ward, and to a husband for injuries caused by his wife. Persons who have the custody of lunatics or idiots are responsible for injuries caused by them. Teachers, masters of apprentices, and heads of workshops arc responsible for injuries caused by their pupils, apprentices, and workmen, if minors, during the time that these arc under their supervision. The persons mentioned in this article are to be no longer considered responsible Upon their proving that they were not able to prevent the commission of such injuries.

Art. 393.— Masters and employers, contractors for works, transport, or other services, and public and private managing bodies arc responsible for the injuries caused by their servants, workmen, employes, or officers, in the exercise or by reason of the duties which are entrusted to them.

Art. 394.— Responsibility for injuries caused by animals falls on the owner or on the person who has the use of them at the time of the injury ; unless, however, the same be due to inevitable accident or irresistible force.

Art. 395.— The owner of a building, terrace, or any other work of construction, is responsible for injuries caused by its fall, when the same is the result of want of repair or of defective construction, but without prejudice in this latter case to his right of recourse against the contractor, if grounds for it exist. The same responsibility is incurred in respect of injuries caused by the bursting of dikes, by the fall of trees, poles, penthouses, signboards, tiles, and any other part of a building which has been badly fastened on, as well as in respect of injuries caused by ships, junks, or boats, badly anchored or moored.

Art. 396.— Minors, whether emancipated or not, may be found civilly responsible, in whole or in part, for such unlawful injuries as they have caused either intentionally or by imprudence, and even although they should be exempt from criminal responsibility. They may likewise be civilly responsible for injuries caused by their servants or employes, *or by things which belong to them, but without prejudice to their right of recourse against their guardian, if grounds for it exist.

Art. 397.— Where, in the cases mentioned in the preceding articles, the person causing the injury can be held personally responsible for his acts, the Court is to pronounce judgment against him as primarily responsible, and is to decide the extent of the subsidiary obligations of the persons civilly responsible; the latter have, as of course, a right of recourse against the wrongdoer. Persons civilly responsible for the acts of another are not liable for fines which the wrongdoer may be condemned to pay, except in cases in which the same is specially provided by law.

Art. 398.— In every case provided for by this Section, if there are several persons responsible for the same act without its being possible to ascertain the share of fault or negligence attributable to each, their obligation is a joint and several one.

Art. 399.— Where civil delicts or quasi-delicts constitute at the same time an offence punishable by penal law, the rules relating to competence and prescription of civil actions as laid down in the Code of Criminal Procedure are to be observed, both with respect to the wrongdoers themselves, as well as the persons civilly responsible.

SECTION IV. LAW AS THE ORIGIN OF OBLIGATIONS.

Art. 400.— Certain obligations arc imposed by law independently of any express act of man ; such arc : The obligation of aliment between certain relations and persons related by marriage. The obligation to discharge the duties of guardian, in cases in which excuses or dispensations are not admissible. Obligations between co-owners and between neighbours, when the same do not constitute real servitudes. These obligations, in so far as they have any special character, arc provided for under the respective subject matters to which they relate.

CHAPTER II. EFFECT OF OBLIGATIONS.

Art. 401.— The principal effect of an obligation is to give to the creditor, according to the distinctions mentioned in Sections I, II, and III, the right in case of non-performance to bring an action for damages before the Courts for its specific performance and, subsidiarily, for damages. The consequences of obligations arc, however, more or less extensive according to the different kinds of obligations, as described in Section IV.

SECTION I. ACTION FOR SPECIFIC PERFORMANCE.

Art. 402.— In every case in which the specific performance of an obligation, according to its form and tenor, is demanded by the creditor, and is able to be obtained without resorting to constraint of the person of the debtor, the Courts must make the order asked for. If the delivery of corporeal things forming a part of the property of the debtor is in question, they are to be seized by order of the Court and delivered to the creditor. If certain things have to be done or made, the Court must authorize the creditor to have them done or made by third parties at the cost of the debtor. If an obligation to refrain from doing or making certain things is in question, the creditor is to be authorized to have destroyed, also at the cost of the debtor, whatever has been done or made in breach of the obligation, and to take in future such steps as appear proper. The above remedies are, in every case, without prejudice to a claim for damages, if any have been sustained. The means by which performance is to be enforced against the debtor are provided for in the Code of Civil Procedure.

SECTION II. ACTION FOR DAMAGES.

Art. 403.— In case of refusal by a debtor to perform his obligation, or in case of its performance being impossible from causes for which he is responsible, or even in case of mere delay in performance, the creditor, in default of enforced performance, is entitled to a judgment against the debtor for damages. In cases other than those where the amount of damages is fixed by law or by the parties, they are to be fixed by the Court according to the distinctions and conditions hereinafter laid down.

Art. 404.— Damages are not incurred until the debtor has been constituted in arrear in accordance with Art. 356. Nevertheless, if the obligation is not to do a certain thing the debtor is always in arrear as of course.

Art. 405.— Damages, as a rule, include an indemnity for the loss sustained by the creditor and compensation for the gain of which he has been deprived. If, however, non-performance, or delay in performance, is due to mere negligence on the part of the debtor without fraud or bad faith, the damages arc only to comprise such losses or such deprivations of gain, as were, or may have been, in the contemplation of the parties at the time of making the agreement. In the case of bad faith the debtor is liable for damages, although not contemplated, provided the same are the inevitable result of non-performance.

Art. 406.— Where damages constitute the main object of an action, the judgment has to fix their amount in money. Where damages are asked for accessorily in an action for specific performance, or in an action for cancellation, the Court can, when deciding the principal claim, allow damages generally, leaving the exact amount to be subsequently determined upon proof in support being furnished. The Court can also, when ordering specific performance by the debtor, award the creditor a conditional indemnity of so much for each day or month of delay, and fix an extreme limit of time for performance, in default of which final judgment to be given. In this latter case the debtor can, however, always ask for an immediate assessment of damages.

Art. 407.— Where the parties have been reciprocally to blame on grounds of delay or non-performance, the Court is to take the same into consideration when assessing damages.

Art. 408.— The parties can settle the amount of damages in advance by means of a penal clause inserted in anticipation of non-performance, or of mere delay in performance.

Art. 409.— The Courts can never add to a penal clause ; they can only lessen its effect in cases in which there has been part performance, or in which the delay in performance has not been solely due to the fault of the debtor.

Art. 410.— In the case of a synallagmatic or bilateral contract, the creditor, who has stipulated a penalty in case of non-fulfilment of the obligation, docs not thereby lose his right to have the contract cancelled, unless he has formally renounced it. lie cannot claim both cancellation and penalty, except where the latter has only been stipulated for mere delay in performance.

Art. 411.— Where an obligation has for subject matter the payment of a sum of money, damages on the ground of delay cannot be assessed by the Court at an amount other than that represented by legal interest, unless it be otherwise specially provided for by law. If the parties agree together on the amount of damages, they can fix any sum which would not represent more than interest at the highest rate allowed by law for private contracts, but they cannot fix a higher sum.

Art. 412.— In order to obtain such damages, the creditor is not bound to prove that he has sustained any loss, nor is the debtor at liberty to prove inevitable accident or irresistible force.

Art. 413.— The state of being constituted in arrear, which is required in order that moratory interest should commence to run, can only result from the commencing of an action in respect of such interest, or from an express acknowledgement on the part of the debtor; without prejudice, however, to those cases in which the law provides that it shall commence to run as of course, as well as to those in which the law permits it to commence to run upon mere notice or other act equivalent thereto.

Art. 414.— Interest on capital sums due, whether the same be compensatory interest or moratory interest, cannot be capitalised so as to itself carry interest, except by virtue of and starting from a special agreement or judicial proceedings entered into or commenced respectively after a years interest has fallen due. Subsequent interest can be likewise capitalised annually. Nevertheless, revenue that is due, such as rents of houses or land, payments on account of perpetual or life annuities, restitutions to be made of fruits or products, can carry interest to run from the commencement of proceedings, or from the making of an agreement, although less than a year has elapsed since it fell due. The same applies to interest on any sum of money paid by a third party on behalf of the debtor.

SECTION III. GUARANTY.

Art. 415.— Every person who has conferred or who has promised to confer a right, whether real or personal, is bound to secure or guarantee the full exercise and free enjoyment of it against every eviction or other legal disturbance, which is founded on causes existing prior to its grant, or which is imputable to the grantor. Guaranty has two objects : the defence or protection of the grantee against claims of third parties, and his indemnification for disturbance and evictions which have not been able to be prevented.

Art. 416.— A guaranty results as of course from all onerous transactions, unless there is a stipulation to the contrary; it does not form a part of a gratuitous transaction, unless it has been expressly promised. In no case, however, and by virtue of no stipulation can the grantor himself disturb the grantee ; he is also always guarantor against every disturbance or eviction caused by third parties by virtue of rights conferred by him, even although conferred prior to a grant made without a guaranty. The heirs of the grantor arc bound by the same obligations.

Art. 417.— Special rules relating to the guaranty of a vendor or lessor in favor of the purchaser or lessee, and to the guaranty which results from partition, arc laid down when treating of the contracts and acts that give rise thereto.

Art. 418.— Persons who arc bound by an obligation, cither together with others, or for others, have a right of recourse on the ground ot guaranty tor whatever they have paid on behalf of such others, in the manner provided when treating of suretyship, solidarity, and indivisibility. Similarly, it one creditor has received the full amount of a joint and several or an indivisible obligation, the others, in default of any other special right of action, have a right of action against him on the ground of guaranty, in order to participate in the benefit he has derived.

Art. 419.— Every person who has right to a guaranty can, when sued, apply that the guarantor should be made a party to the action, in the manner prescribed in the Code of Civil Procedure.

Art. 420.— Where the guarantor has not been made a party to the action, a person, who has been evicted, or who has satisfied the debt of another person, can himself bring an action on the ground of guaranty, unless the guarantor proves that he was in a position to have obtained the dismissal of the original demand.

SECTION IV. DIFFERENT KINDS OF ABLIGATIONS.

Art. 421.— The consequences of obligations arc varied in manner mentioned in the following subsections, according as to whether such obligations are: 1. Pure and simple, subject to a term, or conditional, with respect to their existence; 2. Simple, alternative, or optional, with respect to what is due ; 3. Simple, or multiple, with respect to the number of creditors or debtors ; 4. Divisible, or indivisible, with respect to their nature or mode of performance. The consequences of solidarity, both active and passive, and of conventional indivisibility are laid down in Book IV, when treating of securities for claims.

SUBSECTION 1. OBLIGATION THAT ARE PURE AND SIMPLE, SUBJECT TO A TERM, OR SUBJECT TO CONDITIONS, WITH RESPECT TO THEIR EXISTENCE.

Art. 422.— An obligation is pure and simple, when its existence is assured and when it can be immediately enforced so soon as contracted.

Art. 423.— An obligation is subject to a term, when the creditor cannot act on it before a certain time, or before a specified event which cannot fail to happen, although the date of its so doing may be uncertain. Such term is called legal, when it is cither fixed by the parties or is allowed by law. If it has been said that the debtor will pay “when able” or “when he sees fit”, the Court, on the application of the creditor, and upon a consideration of the circumstances and the presumed intention of the parties, is to fix a period of time for his so doing; without prejudice, however, to the case of the parties having intended to establish a periodical payment in perpetuity.

Art. 424.— The debtor can renounce the benefit of the term and can perform his obligation before it expires, unless it be proved by the stipulation itself or by the circumstances of the case, that the term was fixed in the interests of both parties or of the creditor only; in this latter case, the creditor is in like manner entitled to renounce the benefit of the term. The case of a party paying by mistake before expiry of the term is governed by Art. 386.

Art. 425.— The debtor is deprived of the benefit of the legal term in the cases following: 1. If he has been declared bankrupt or has become notoriously insolvent; 2. If the greater part of his property has been alienated by him or seized by other creditors; 3. If he has destroyed or diminished in value the particular securities that he has furnished, or has failed to furnish those that he has promised ; 4. If he fails to pay compensatory interest.

Art. 426.— Whether there may have been a legal term or not, and notwithstanding that there may be right to immediate execution, the Courts can grant to the debtor a moderate time of grace, if he is in unfortunate circumstances and has acted in good faith, and if the creditor will not be seriously prejudiced in consequence. The Courts can also, under like circumstances, authorize execution for payment of the debt by instalments. Any stipulation to the contrary is null and void.

Art. 427.— A debtor who has been granted a time of grace is deprived of the benefit thereof for the causes mentioned in Art. 425, and in addition : 1. If he has run away, or if, having left his domicile, he conceals his place of residence from his creditor ; 2. If he has been condemned to correctional imprisonment for a year or more; 3. If he has failed to fulfil any of the conditions imposed on him by the judgment; 4. If he has himself become creditor of his creditor under circumstances which admit of legal set off. The time of grace cannot be enlarged by the Court.

Art. 428.— An obligation is subject to a condition, when the parties, or the law, make its commencement or its cancellation depend on the happening of some future uncertain event; in the first case the condition is called “suspensive,” in the second “resolutory.” Real rights, both principal and accessory, can also be subject to a suspensive or resolutory condition.

Art. 429.— A suspensive condition, when the contemplated event has happened, retroacts from the date of the agreement. The fulfilment of a resolutory condition places the parties in the state in which they respectively were prior to the agreement.

Art. 430.— So long as a suspensive or a resolutory condition has not been fulfilled, either of the parties can confer rights over the subject matter of the agreement, but subject to the same condition as his own right is subject to. Such condition, however, cannot be set up by one party or those claiming under him against persons claiming under the other, unless such condition has been brought to the notice of these latter by such public means as are prescribed by Art. 367 and following articles.

Art. 431.— Acts of management, done in good faith and in conformity to law by a person whose rights are subject to cancellation, are to be upheld in favor of third persons. With respect to judgments rendered between third persons and the party whose right is liable to be cancelled, the same can be relied on by the other party or those claiming under him, but they cannot be set up against them, unless they have been called upon to resist the action. The above does not apply, however, to judgments which only refer to acts of management.

Art. 432.— When a condition has been fulfilled, the party who has to deliver or return any thing or any sum of money must hand over at the same time the fruits or interest that have been received or that have fallen due in the interval, unless proof of a contrary intention on the part of the parties is to be gathered from the circumstances.

Art. 433.— An agreement is void, if its principal subject matter is subordinate to an impossible or illicit condition. A condition is illicit, when it is either to benefit a party for doing something that is prohibited or for abstaining from performing some duty, or is to work to his prejudice for not doing something that he is prohibited from doing or for doing something that he is in duty bound to do. If an impossible or illicit condition only affects some accessory consequence of an agreement, the clause which is dependent on it is to be considered as not existing.

Art. 434.— A casual condition, and a condition which depends in whole or in part on the will of the promisee are to be deemed as fulfilled, where the promisor has prevented their fufilment.

Art. 435.— If the condition is potestative or dependent on the will of only one of the parties, the other party is entitled to apply to the Court to fix a time after the expiration of which the condition is to be deemed as not fulfilled, if what is necessary has not meanwhile been done.

Art. 436.— If a positive condition has been limited by a fixed time either by the parties or by the Court, it is to be deemed as not fulfilled if such time has expired without the event having happened ; it is also to be deemed as not fulfilled, whether any time has been fixed or not for fulfilment of the condition, so soon as it has become certain that the event cannot happen. A negative condition limited by a fixed time is to be deemed as fulfilled when the contemplated event has not happened within the time fixed; it is also to be deemed as fulfilled, whether a time has been fixed or not, so soon as it has become certain that the event cannot happen. In neither case can the time fixed by the parties be enlarged by the Court.

Art. 437.— If either or both of the parties have died before the condition has been fulfilled, or can he taken as not fulfilled, the agreement remains in force actively as well as passively for their heirs, unless the condition from its nature, or from the intention of the parties, is one which was personally attached to or imposed on the promisee or promisor.

Art. 438.— All other questions bearing on the point of how conditions arc to be fulfilled, and when they are to be deemed as fulfilled or not fulfilled, are to be decided according to the express or implied intention of the parties. This applies also with respect to the consequences that partial fulfilment may produce.

Art. 439.— Where, before the fulfilment of a suspensive condition, the thing that has been promised or assigned has either totally perished or lost more than half its value, without any fault on the part of the promisor or assignor, the agreement is to be considered as not having been entered into, and neither party can make any claim in respect thereof against the other. On the other hand, if the promise or assignment has been made subject to a resolutory condition, such loss or deterioration is to be borne by the promisee or assignee, and his right thereby becomes irrevocable without his being entitled to demand any return. Where, in such cases, the loss or deterioration does hot exceed half the value, fulfilment of the condition will produce the agreed on consequences.

Art. 440.— In case of loss or deterioration imputable to one of the parties, the other Can at his option require performance of the agreement with an indemnity for the loss, or its cancellation with slamages.

Art. 441.— In every synallagmatic contract a resolutory condition is always to be understood to be for the benefit of the party who has performed his obligations, or who offers to do so, in the case of the other party not performing his in their entirety. In this case cancellation does not take place as of course : it must be applied for judicially by the aggrieved party; the Court can, however, grant to the other a time of grace in manner mentioned in Art. 426.

Art. 442.— The parties can, by formal agreement, exclude such cancellation. They can also expressly agree that it shall take place as of course against the party who lias been constituted in arrear in performance ; such party cannot, however, avail himself of the cancellation thus effected, until the other party has had resort to it as against him.

Art. 443.— The party aggrieved by nonperformance can renounce his right to cancellation so long as he has not, where such right is implied, commenced legal proceedings, or, where it is express, declared that he avails himself of it.

Art. 444.— The party applying judicially for cancellation, or relying on cancellation effected as of course, is in addition entitled to obtain reparation for any loss or damage sustained.

Art. 445.— Potestative, suspensive, or resolutory conditions specially employed in contracts of sale arc treated in Book III, Part I. Chapter XII.

Art. 446.— A party whose right is subordinate to a suspensive condition, or whose power to act is delayed by a legal term or a time of grace, may, however, take in the interval any measures whatever to protect his right, in so far as the same are provided for either in this Code or in the Code of Civil Procedure.

SUBSECTION 2. OBLIGATIONS, THAT ARE SIMPLE, ALTERNATIVE, OR OPTIONAL, WITH RESPECT TO WHAT IS DUE.

Art. 447.— An obligation is simple when it has for subject matter either one or more things individually determined, or things of a certain description but only determined by quantity or quality, or a collection or universality of objects. An obligation is to be still deemed simple although it may have for subject matter several different prestations, whether simultaneous or successive, provided that the same are due by virtue of only one agreement, or of agreements connected with each other. In these different cases the debtor is only discharged by prestation of every thing that is due.

Art. 448.— An obligation is alternative, when it has two or more distinct subject matters, but of such a nature that the debtor is to be deemed discharged by the prestation of one or more of them. The choice of the thing to be given rests with the debtor, unless it has been specially allowed to the creditor. The debtor cannot, however, force the creditor to receive, nor can the creditor force the debtor to give, parts of the different things due in the alternative.

Art. 449.— Where the choice rests with the debtor and one of the two things has perished by his fault, the obligation attaches to that which remains, without option to the debtor to discharge himself by giving the value of the thing which has perished. Where both the things have perished one after the other by fault of the debtor, he owes the value of that which has perished the last. If they have perished simultaneously and the debtor is in fault with respect to both or only one of them, the right of choice is transferred to the creditor to obtain the value of either the one or the other.

Art. 450.— In the same case where the choice rests with the debtor and one of the two things due has perished through the fault of the creditor, the debtor is discharged, unless he prefers to give that which remains and be reimbursed the value of that which has perished. If both the things have perished through the fault of the creditor, the debtor can at his choice obtain reimbursement of the value of either the one or the other. If both the things have perished simultaneously, the one through the fault of the creditor, the other through some fortuitous event, the debtor is discharged without right of repetition against the creditor.

Art. 451.— When the right of choice has by agreement been given to the creditor, and one of the two things has perished through the fault of the debtor, the creditor can claim that which remains or the value of that which has perished. If both have perished through the fault of the debtor, the creditor has the choice of the value of either the one or the other. He has a like choice if both things have perished simultaneously, the one through the fault of the debtor, the other through some fortuitous event.

Art. 452.— In the same case where the choice rests with the creditor and one of the two things has perished through his fault, the debtor is discharged. If both have perished simultaneously through the fault of the creditor, the choice is transferred to the debtor to obtain the value of either the one or the other. In the same case of simultaneous loss, if one of the things has perished through the fault of the creditor and the other by some fortuitous event, the debtor is discharged without right of repetition against the creditor.

Art. 453.— Whichever party has the choice, if one of the two things perishes by some fortuitous event, the obligation thereupon becomes simple and bears on the thing that remains. If both the things have totally perished the obligation is extinguished. Where, through inevitable accident or irresistible force, one of the two things has become deteriorated or lost to more than a half of its value, it can no longer form an object of choice for the debtor.

Art. 454.— If the party having the right of choice dies leaving several heirs, these must arrange amongst themselves so as to exercise a unanimous choice in the manner mentioned when treating of indivisible obligations. The right of choice once validly exercised, whether by the debtor by means of an actual offer or by the creditor by means of a demand in due form, cannot be withdrawn, except with the consent of the other party.

Art. 455.— Where, within the contemplation of the preceding articles, it happens that an alternative obligation bears only on one and the same thing, or where the right of choice has been exercised in favour of one of the things by the party who has such right, the consequences of the obligation arc retroactive, in manner mentioned in Art. 429, when treating of obligations subject to suspensive conditions.

Art. 456.— An obligation is called “optional” when the debtor is directly liable in respect of one or more specified things, but with power to discharge himself by giving one or more other things. The thing directly due is to be deemed due subject to the resolutory condition of payment of the thing that is optionally due. If the thing directly due has perished through the fault of the debtor, he is liable for payment of its value with damages, but he preserves the power of discharging himself by giving the thing that is optionally due. If one of the two things has perished through the fault of the crediter, the debtor is entitled to claim his discharge, or else to give the thing that remains and obtain compensation for that which has perished. If both the things have perished through the fault of the creditor, the debtor is discharged, and can obtain reimbursement of the value of either the one or the other at his choice. If both the things have perished simultaneously, the one through some fortuitous event, the other through the fault of the creditor, without it being known which has perished through the latter, the debtor is discharged with a right of repetition against the creditor for the value of the one or the other at his choice.

SUBSECTION 3. OBLIGATIONS THAT ARE SIMPLE OR MULTIPLE, WITH RESPECT TO THE NUMBER OF CREDITORS OR DELTORS.

Art. 457.— An obligation is simple, when there is only one creditor and only one debtor; it is multiple, when there are two or more creditors or two or more debtors, cither originally, or in consequence of one of the parties having died leaving two or more heirs. A multiple obligation is in common, or joint and several; it may also be indivisible, as mentioned in the following subsection.

Art. 458.— In an obligation in common each creditor can only claim, and each debtor can only be sued, for his share in the claim or debt, as fixed by the following subsection. In a joint and several obligation each creditor can claim and each debtor can be sued for the whole, cither in his own name and on his own behalf, or in the name and an behalf of the others; without prejudice, however, to the resjiectivc rights of recourse, by means of an action on the ground of guaranty, for whatever may have been received or paid by any one in excess of his actual share, in the manner explained in Book IV.

SUBSECTION 4. OBLIGATIONS THAT ARE DIVISIBLE OR INDIVISIBLE, WITH RESPECT TO THEIR NATURE OR MODE OF PERFORMANCE.

Art. 459.— A simple obligation, as defined in Art. 457, must be performed between the creditor and the debtor as if it was indivisible, but without prejudice to the power granted to the Courts by Art. 426 to authorize payment by instalments.

Art. 460.— In an obligation in common the actual part for which each creditor can claim, or for which each debtor can be sued, is to be ascertained from the facts of the case. If such parts cannot be thus determined, they are to be deemed equal, and are to be calculated by the number of creditors or debtors, hut without prejudice to any subsequent right of recourse for the purpose of finally settling each person's share in the benefit of the credit or in the burden of the debt.

Art. 461.— In case of the death of the creditor or of the debtor, a simple obligation or an obligation in common becomes divided, actively or passively as the case may be, between his heirs proportionately to the extent to which each of them represents the deceased. A joint and several obligation is similarly divisible amongst the heirs of the parties.

Art. 462.— A multiple obligation is indivisible amongst creditors and debtors: 1. When, from the nature of the thing due, performance in parts is materially and legally impossible; 2. When from the intention of the parties, either express or to be implied from the object that they hail in view or from the facts of the case, it has been understood that the obligation, although divisible by its nature, is not to be performed in parts.

Art. 463.— An obligation although divisible by its nature is still indivisible by intention of the parties, but only passively: 1. Where it concerns the delivery of a specified object which is at the disposal of one only of the debtors, in which case such debtor can be sued for the whole; he may, however, if there happen at the same time to be two or more creditors, require that they be all made parties to the action, in order to simultaneously discharge himself with respect to all of them; 2. Where, by the title creating the debt, one of the debtors only has been charged with performance, the same can be demanded from him alone.

Art. 464.— Indivisibility can also, in manner prescribed in Book IV, Part I, Chapter IV, be stipulated for as against debtors, in addition to or independent of solidarity, as security for the performance of a debt divisible by its nature.

Art. 465.— Any creditor, who has obtained alone performance of an indivisible debt, must share the benefit received therefrom with the other creditors in proportion to their respective rights. In like manner, any debtor, who has alone performed such an obligation, has a right of recourse on the ground of guaranty against the other debtors for the respective shares that, by reason of the obligation or their respective prior relations to each other, they ought to contribute.

Art. 466.— No creditor can diminish or extinguish the rights of the others, otherwise than by receiving the stipulated payment. If any creditor has made a novation, or released a debt, or made any other agree ment which in any way discharges the debtors or any of them or if there exist against any creditor grounds for legal set off the other creditors can still demand integral performance of the obligation, but they will have to make allowance to the defendant debtor forsuch value as they would have had to account for to the creditor himself if he had not lost his right, as mentioned in the 4th paragraph of Art. 523, the 2nd paragraph of Art. 537, and the 4th and 5th paragraphs of Art. 543, and subject to the distinctions therein made.

Art. 467.— On the other hand, constituting in arrear and other preservatory steps taken by one of the creditors work for the benefit of the others. In like manner, legal grounds for the suspension of prescription in respect of one of them suspend it also with respect to the others.

Art. 468.— No individual debtor can prejudicially affect the position of the others ; in like manner, the constituting in arrear of one of them cannot be set up against the others. Nevertheless, an acknowledgment of the debt and other grounds for interruption or suspension of prescription, which can be set up against one of the debtors, can equally be set up against the others.

Art. 469.— Where, through the fault of one of the debtors, an indivisible obligation cannot be performed, damages or the agreed on penalty are only incurred by the debtor who is in fault, and notwithstanding that the penal clause may have been introduced for the purpose of securing the integral performance of a divisible obligation.

Art. 470.— A debtor sued for the performance of an indivisible obligation, in the cases in Art. 462 mentioned, can apply for time to have the other debtors made parties to the action in order that judgment may go against them together with him, if grounds for the same exist, and also in order to get a decision as to his subsidiary rights of recourse against them.

CHAPTER III. EXTINCTION OF OBLIGATIONS.

Art. 471.— Obligations become extinguished : 1. By payment; 2. By novation ; 3. By conventional release ; 4. By set off; 5. By confusion : 6. By impossibility of performance : 7. By rescission ; 8. By revocation and cancellation ; 9. By liberatory prescription.

SECTION I. PAYMENT.

Art. 472.— Payment, or performance of an obligation according to its form and tenor, may be either simple or with subrogation, according to the distinctions hereinafter made hi subsections 1 and 4. Where there are two or more debts and only one payment, such payment may be appropriated to one or more of the debts in conformity with subsection 2. If the creditor is not able or is not willing to receive payment, the debtor can discharge hintself by tender and deposit as mentioned in subsection 3. The cases in which a debtor is authorized to surrender or assign his property to his creditors are provided for in the Code of Civil Procedure.

SUBSECTION 1. SIMPLE PAYMENT.

Art. 473.— Payment can be validly made not only by the debtor, or by one of the co-obligors, where the debt is joint and several or indivisible, but also by any one who is subsidiarily liable or interested, such as a surety, or a third person holding property that has been mortgaged as security for the debt. Payment can also be made, either in the name of the debtor or in his own name, by a third person who is not interested.

Art. 474.— The consent of the creditor is not necessary for the validity of a payment made by a third person, whether interested or not, except in the case of an obligation to do something in which the personality of the debtor has been taken into special consideration by the creditor. Neither is it necessary that the debtor should consent to payment being made by a third party, although not interested ; nevertheless, if in this latter case neither the debtor nor the creditor consent to the payment, it cannot be made.

Art. 475.— Independently of those cases in which a third party who has paid is subrogated by law or by agreement to the rights of the creditor, he has, if he has acted without mandate, a right of recourse against the debtor to the extent of the benefit that the payment has procured for him.

Art. 476.— Where an obligation has for its object the transfer of the right of ownership of things measured by quantity, payment, by delivery or otherwise, can only be effected by the person who owns them and has capacity to alienate them. If a thing belonging to a stranger has been delivered, the payment can be treated as void by cither of the parties. If a thing has been delivered by an owner without legal capacity to alienate the same, he alone can claim to have the payment treated as void. The debtor cannot in cither case claim the return of the thing delivered, unless he tenders a valid payment. Repetition is no longer open to him if the creditor has in good faith consumed or alienated movables received in payment. The creditor can, however, ratify a payment made with a thing belonging to another, without prejudice, in case of revendication by the rightful owner, to his right of action on ground of guaranty against the debtor.

Art. 477.— Payment must be made to the creditor or to his representative; nevertheless, payment to a person without capacity to receive it is valid, if the creditor has either ratified the same or has benefited thereby.

Art. 478.— Payment made to any person who, without being the true creditor, was in possession of the claim is valid, if the debtor has acted in good faith. The following are considered as in possession of a claim : the heir or other apparent general successor, the apparent assignee of a nominative claim, the holder of an instrument in writing payable to bearer.

Art. 479.— Payment made to a creditor or person in possession of a claim without legal capacity to receive the same, can be annulled upon his application, except in so far as he has benefited thereby.

Art. 480.— Where payment has been made after a claim has been attached in proper form and manner in conformity with the Code of Civil Procedure, the creditors, who have attached the same, can force the debtor to pay again to the extent to which they have been damnified, but without prejudice to the debtor's right of recourse against the creditor who has received payment.

Art. 481.— A creditor cannot be required to receive in payment any thing other than that which is due, notwithstanding that the thing offered may be of greater value. On the other hand a debtor cannot be required to give any thing other than that which he owes, notwithstanding that the thing demanded may be of less value. If a thing by nature fungible and determined only by its kind is in question, the debtor is not bound to give the best quality nor the creditor to receive the worst.

Art. 482.— Where, by mutual consent, a thing is given or promised in payment in lieu of a sum of money, or a sum of money is given or promised in payment in lieu of a thing, or one thing in lieu of another, the original obligation is to be considered as novated, and the transaction is governed by the rules of sale or exchange as the case may be.

Art. 483.— The debtor of a specified object is discharged by delivering the same in the state in which it is at the time that delivery ought to take place; without prejudice, however, to what is said in Art. 439 with respect to risks in the case of conditional obligations. If the object has been preserved or improved at the cost of the debtor, or has become deteriorated by his fault or neglect, an indemnity is respectively payable by the parties in conformity with Chapter 1, Sections II and III.

Art. 484.— Where a debt is of a sum of money, the debtor can discharge himself by giving, at his option, national money in gold or silver, or paper money (kin-satsu) provided the same has forced currency. The debtor is never liable for either more or less than the numerical sum promised, whatever may be the legal changes that have occurred in the nominal value of money or in its intrinsic composition. Any agreement to an effect contrary to either of the two preceding provisions is null and void: without prejudice, however, to what is said in the second paragraph of Art. 486.

Art. 485.— It may, nevertheless, be agreed that the increase or decrease respectively in the value of money or paper money at the time when payment can be demanded, and resulting from the commercial rate of exchange, shall be compensated between the parties by payment of the mean value in any legal money the debtor sees fit.

Art. 486.— If the sum due has been described by value in gold or silver, the debtor can always discharge his obligation in other legal money; he alone, however, has to bear any loss or to benefit from any gain arising from exchange. The same applies if the sum due has been stipulated as payable in gold or in silver money If it has been agreed that payment is to be made in foreign money, the debtor can always, in manner mentioned in the two preceding paragraphs, discharge himself by paying its value in any legal money he may select.

Art. 487.— Unless there be an agreement to the contrary, copper money cannot be given in payment to an amount of more than 5 yen, nor small silver coins of 50 sen and under to more than 50 yen.

Art. 488.— Special provisions with reference to loans of money arc established in Art. 868.

Art. 489.— If the place where payment has to be made has not been specified by the parties, it is to be made at the domicile of the debtor ; this provision is, however, without prejudice to what is hereinafter said with respect to certain kinds of contracts, and to the provisions relating to the delivery of specified objects, in conformity with Art. 353. If the party at whose domicile payment has to be made has changed the same without fraudulent intent, payment must be made at the new domicile, but the difference in exchange and supplementary expenses consequent on the travelling of persons, or on the carriage of the things due, can be deducted by the other party. All other expenses of payment are to be borne by the debtor.

Art. 490.— Whatever concerns the time at which payment is to be made is here-above provided for in Arts. 423 to 427. If the day fixed for payment is a legal holiday, payment cannot be demanded until the day next following.

SUBSECTION 2. APPROPRIATION OF PAYMENTS.

Art. 491.— Where a debtor owes two or more debts of the same kind and to the same creditor, and he makes a payment which is insufficient to extinguish all of them, he is entitled, at the time of payment, to declare which debt he intends to pay, and to have inserted in the receipt the appropriation thus made. a debtor cannot, however, without the consent of the creditor, make an appropriation in favor of a debt not yet due, when the time allowed for payment has been introduced for the benefit ol the latter, nor in favor of capital in preference to expenses and interest, nor in favor of parts of several debts.

Art. 492.— In the absence of any valid appropriation by the debtor, the creditor himself, when giving his receipt, can make therein such appropriation of the payment as he sees fit; without prejudice, however, to what is said in Art. 777. If the debtor has accepted the receipt without objection or reservation, he is not at liberty to take exception to the appropriation, unless there has been mistake on his part, or fraud or deceit on the part of the creditor.

Art. 493.— If no valid appropriation has been made by either the debtor or creditor, it takes place as of course in manner following: 1. In favor of debts that have fallen due before those not yet due; 2 In favor of expenses and interest before capital; 3. If all the debts are either due or not yet due, in favor of those which it is most to the advantage of the debtor to pay; 4. If it is not more to the advantage of the debtor to pay one than another, in favor of debts that have been longest due or that will first fall due ; 5. All things being equal appropriation is made proportionately.

Art. 494.— The preceding rules do not apply to remittances made in current account, which are simply carried to the credit of the person who makes them.

SUBSECTION 3. TENDER AND DEPOSIT.

Art. 495.— Where a creditor is not willing or is not able to receive payment, the debtor can discharge himself by means of tender and deposit under the distinctions here mentioned.

Art. 496.— 1. If the debt is a sum of money, the tender must be actual, that is, accompanied by a presentation in specie; 2. If the thing due is a specified object and is deliverable at the place where it is, the debtor is to notify the creditor to take it away; 3. If the specified object is deliverable at the domicile of the creditor or in some other place, and its transport is expensive, difficult, or perilous, the debtor is to declare in his tender that he is prepared to deliver it forthwith according to the terms of his agreement; 4. The same applies in the case of things of quantity; 5. In the case of an obligation to do something requiring the presence or the co-operation of the creditor, it is sufficient for the debtor to declare that he is ready to perform his obligation.

Art. 497.— A tender is not valid, unless it embodies, in addition, the conditions in this Code already prescribed for validity of payments, and unless it is made according to the forms and conditions contained in the Code of Civil Procedure.

Art. 498.— A tender validly made, while it is still open to the debtor to make it, is a bar to forfeitures, cancellations, or penalties, whether established by law or stipulated by agreement. It prevents the person making it from being constituted in arrear ; if the same has already taken place, it stops for the future the consequences arising therefrom; it also stops compensatory interest from running.

Art. 499.— Where a creditor refuses to accept a tender, the debtor can deposit the amount in the proper public treasury together with the compensatory interest that has accrued due thereon up to the day of the deposit being made. In the case of a specified object or of a thing of quantity, the debtor must apply to the Court to name a place for its deposit and to appoint a person as its sequestrator or custodian. The forms to be followed and the other conditions respecting deposit are provided for in the Code of Civil Procedure.

Art. 500.— A deposit validly made discharges the debtor, and places the thing at the risk of the creditor, notwithstanding that the debtor may have taken on himself the risk of fortuitous events. Nevertheless, so long as the creditor has not accepted the deposit, or so long as it has not, upon application of the debtor, being declared valid by a judgment which is no longer subject to attack, the latter can withdraw it, and his discharge is to be regarded as not having been effected. Notwithstanding acceptance by the creditor, or the judgment declaring it valid having become final, the debtor may still withdraw the deposit with the consent of the creditor; without prejudice, however, to the discharge of co-debtors and sureties, to the extinction of rights of pledge or mortgage, or to attachments levied by third parties in right of the creditor upon the things deposited.

SUBSECTION 4. PAYMENT WITH SUBROGATION.

Art. 501.— A payment made by a third person with subrogation discharges the debtor with respect to the creditor and conveys to the third party the right of claim itself, with the guaranties and consequences attached thereto, without prejudice, however, to his right of action on the ground of management of the affairs of another, with or without authority as the case may be. Subrogation is conferred by the creditor, by the debtor, or by law, according to the following distinctions.

Art. 502.— Subrogation conferred by the creditor is not valid, unless it is clearly mentioned in the receipt; it is not, however, necessary that the same should state whether the third party is interested or not in paying, or whether he pays in his own name or in the name of the debtor.

Art. 503.— The debtor himself can subrogate to the rights of the creditor, and without his consent, a third person who lends him the necessary money or valuables to pay his debt. For this purpose, the document of loan must mention the object for which the same is made, and the receipt must state the source from which the money or things given in payment are obtained. Only documents duly authenticated or bearing a specified date are to be admitted as proof of such a transaction in so far as third parties arc concerned. Nevertheless, if a longer interval of time than is necessary has elapsed between the loan and payment, the Courts may declare that no subrogation has taken place.

Art. 504.— Subrogation takes place as of course: 1. In favour of any person who, being bound by an obligation together with others or on behalf of others, either personally, or as third holder of property charged with a right of privilege or mortgage, had an interest in paying such obligation ; 2. In favor of a creditor who pays another creditor, either to prevent a mortgage action being brought, or to put a stop to an attachment on immovables or to an application for cancellation of a contract; 3. In favour of a beneficiary heir or of an apparent heir in good faith, who pays out of his own property all or part of the debts of the succession.

Art. 505.— The subrogation established by the three preceding articles entitles the person subrogated to exercise all rights and rights of action, real as well as personal, which belonged to the former creditor, as the consequences or as guaranties of his claim, but subject to the following exceptions: 1. If the parties have restricted the rights or rights of action transmitted to the person subrogated; such restriction is to be observed ; 2. If a third holder has, as such, paid the debt, he is only subrogated as against a surety for the amount which he has not or could not have been able, by purge of mortgages, to unburden an immovable without himself making any advances; 3. In the same case of payment by a third holder, if there arc other immovables mortgaged for the same debt in the hands of other third holders, the right of subrogation of the one who has paid can only be enforced against the latter proportionately to the respective values of the immovables ; 4. If a debt has been paid by one of several co-debtors who were mutually guarantors for each other, the one who has paid is only subrogated with respect to the others to the extent to which these are finally bound to contribute.

Art. 506.— The person subrogated cannot avail himself of the rights of action of the creditor to an extent beyond that of the amount he has paid.

Art. 507.— Subrogation must not prejudice the original creditor; consequently he is entitled to refuse payment of a claim with subrogation, if his securities for other rights of claim would thereby become diminished.

Art. 508.— Where payment with subrogation has been made for |part only of a claim, the person subrogated ranks equally with the original creditor in proportion to the amount he has paid. Nevertheless, the creditor alone can exercise the right of cancellation of the contract for default of payment in full.

Art. 509.— A creditor, who through payment with subrogation has no longer any interest in a claim, must hand over to the person subrogated all documents of title to the same, and any thing pledged for its payment. If he has only received part payment, he must permit the person subrogated such liberty of access to the documents of title as he may require, and must permit him to look after the safe keeping of any pledge.

Art. 510.— The dispositions of the three preceding subsections, with respect to the conditions requisite for the validity of payments, appropriation of payments, and tenders and deposits, are to be applied to payments with subrogation.

SECTION II. NOVATION.

Art. 511.— Novation, or the changing of an existing obligation into a new one, takes place in four ways: 1. When the parties agree that a new subject-matter shall be substituted for the existing subject-matter of the obligation; 2. Where the subject-matter remaining the same, the parties agree that it shall be due under another title or for another consideration ; 3. When a new debtor is substituted for the existing one ; 4. When a new creditor is substituted for the existing one.

Art. 512.— There is no novation, where the parties have merely altered an obligation by adding to it or taking off from it cither a term of time or a condition, or a real or personal security, or by changing its place of performance, or the quantity or quality of the thing due. There is also no novation in the settlement of a debt by means of promissory notes, or commercial documentary securities, if the cause of the debt is shown therein, nor in a document acknowledging a prior debt even although the same be in a form that admits in itself of execution.

Art. 513.— A creditor cannot agree to novation, unless he has at least legal capacity to dispose onerously of his prior right of claim and the securities guaranteeing it. The same rule applies to conventional, legal, and judicial administrators and mandatories, when their authority is not general.

Art. 514.— An intention to novate is never to be presumed on the part of a creditor; it must clearly appear from the document itself or from the circumstances. Nevertheless, when it is doubtful whether there is novation, or formation of two obligations between the same parties, such doubt is, in conformity with Art. 308, to be construed in favor of the debtor, and as meaning novation.

Art. 515.— Where the former obligation was subject to a suspensive or resolutory condition, the novation is to be presumed to be affected by the same condition. On the other hand, if the new obligation is conditional, novation does not take place, unless the suspensive condition is fulfilled, or the resolutory condition does not take effect. The above is, however, without prejudice to proof in cither case that the parties intended to make an absolute novation.

Art. 516.— The novation is void and no new obligation is formed, where the former obligation had not in its origin a legal existence, or had become extinguished or annulled on one of the grounds authorized by law. Similarly, the former obligation still remains in force, where the new one does not contain the conditions requisite by law for existence and validity. The above is, however, without prejudice to proof in either case that the parties intended to substitute a civil obligation for a natural obligation, or a natural obligation for a civil.

Art. 517.— A debtor, who has without objection or reservation validly contracted a new debt, so as to thereby substitute it for a former, cannot set up against his creditor any grounds of nullity which existed with respect to the prior obligation and of which he was aware. The same applies where he has bound himself to a new creditor under delegation from the former, in conformity with the following article.

Art. 518.— Novation by change of debtor takes places cither by delegation or mandate from the original debtor to the new debtor, or by the voluntary intervention of the latter without any authority from the original debtor. Delegation is either perfect or imperfect. The voluntary intervention of a third party constitutes expromission or merely adpromission as is hereinafter explained.

Art. 519.— Delegation is only perfect and only effects novation, if the creditor has clearly shown his intention to discharge the original debtor; in the absence of such intention, delegation is imperfect, and both debtors can be sued jointly and severally. Where, in the case of the voluntary intervention of a third person, the creditor has released the original debtor, novation takes place by expromission ; in the contrary case there is only adpromission, and the creditor acquires a second debtor for the whole debt, but without joint and several liability.

Art. 520.— Where in the case of perfect delegation or expromission, the new debtor is not able to satisfy the debt, the creditor only has recourse against the original debtor on the ground of guaranty, if the new debtor was already insolvent at the time of delegation or expromission, and the creditor was unaware thereof; the above is, however, without prejudice to any special agreement enlarging or restricting such guaranty.

Art. 521.— Novation by change of creditor only takes place subject to the consent of the debtor, as well as to that of the original and of the new creditor.

Art. 522.— Where a debtor is delegated by his creditor, either gratuitously, or in payment of a debt of the person so delegating, but with reserve of all or part of the securities which guaranteed the prior claim in manner mentioned in Art. 525, the delegate, with respect to third parties, only becomes vested with such claim subject to the conditions prescribed in Art. 367 for the assignment of claims.

Art. 523.— Novation made between a creditor and one of two or more joint and several debtors or between a creditor and one of two or more co-debtors of an indivisible debt discharges the other debtors and all sureties. If, however, the creditor has made it a condition of novation that the co-debtors and sureties should be parties to the same, and either of them refuse, novation is not effected. Novation made with one of two or more joint and several creditors only discharges the debtor to the extent of the share of such creditor. If the original debt was indivisible, novation made with one creditor still leaves to the others the right to sue for the whole debt, subject to the indemnity provided for by Art. 466.

Art. 524.— Novation made with a surety is presumed to relate to his suretyship and not to the principal debt, unless a contrary intention of the parties be proved ; it does not release either the principal debtors or the other sureties.

Art. 525.— Real securities guaranteeing the original right of claim do not pass to the new right of claim, unless specially reserved by the creditor. Such reservation can apply as well to mortgaged property which has remained in the hands of the co-debtors and sureties, as to that which happens to be in the hands of third holders No consent io such reservation is necessary, except on the part of the person with whom novation is made. In every ease the property only remains mortgaged to the extent of the original obligation.

SECTION III. CONVENTIONAL RELEASE.

Art. 526.— Conventional release or discharge of a debt, in whole or in part, can take place either onerously or gratuitously. In the former case, it constitutes according to circumstances a giving of something in payment, a novation, an arrangement, or a cancellation; in the second ease, it constitutes a gift, without, however, having to comply with any special legal formalities. Partial release called composition, granted to a bankrupt debtor after consultation among his creditors, is provided for in the Commercial Code.

Art. 527.— Release of a debt can be either express or implied ; where doubt exists, however, it is never to be presumed, except in cases where it is specially so provided by law.

Art. 528.— Release of a debt granted to the principal debtor discharges allsureties Release of one of two or more debtors jointly and severally liable discharges the others, unless the creditor has reserved his rights against them ; but even in this case, his reservation is only effective for what is due after deducting the share of the debtor who has been released. The same applies to release of one of the debtors of an indivisible debt; nevertheless, if the debt is indivisible by nature and the creditor has reserved his rights against the other debtors, he can enforce the same for the whole, but must credit the debtor sued with the share of the debtor released.

Art. 529.— Release of a debt granted to a surety discharges the principal debtors and other sureties.

Art. 530.— A co-debtor or surety to whom release of the debt has been granted has only right of recourse against his co-debtors or co-sureties to the extent of what he has actually furnished, in order to obtain from the creditor their common discharge.

Art. 531.— Release merely of solidarity or of conventional indivisibility granted to one of several debtors frees him from liability for the share of the others, and frees them from liability for his share. In the case of release of natural indivisibility granted to one of several debtors, the creditor preserves his right to claim the whole from each of the others, but in . so doing he must give credit for the value of the share of the debtor released.

Art. 532.— A creditor is to be presumed to have intended to release one of the debtor's from solidarity or conventional indivisibility in the following cases: 1. If, without reserving his rights of guaranty, he has received from one of them a sum of money or thing of value that is stated to be the share of such debtor in the debt; 2. If, without reserving his rights of guaranty, he has commenced against one of them legal proceedings with the qualification “for his share”, and such one has cither complied with his demand or has been condemned to pay; 3. If, for ten consecutive years, he has without reservation received from one of the debtors payment of his share of interest or other periodical payments payable in respect of the debt.

Art. 533.— Release of suretyship alone granted to a surety docs not discharge the principal debtor, and only discharges the other sureties to the extent of the share of the surety whose suretyship has been released ; without prejudice, however, to the case where the sureties are joint and several between themselves, in which case all the sureties are discharged, unless the creditor has reserved his right against the others, as mentioned in the second paragraph of Art. 528.

Art. 534.— Renunciation by a creditor of a pledge or mortgage does not reduce the claim itself; it entitles sureties, however, to demand that they be discharged by the creditor, if they can show that when they entered into their obligation they relied on subrogation to such securities.

Art. 535.— Whatever a co-debtor or a surety has given to the creditor in order to obtain mere release of solidarity, of indivisibility, or of suretyship does not reduce the debt, and cannot form the subject of any right of recourse against the other co-obligors.

Art. 536.— Release of an obligation to deliver or to return a specified object produces no reassignment or assignment in favour of the debtor, and still leaves in force the owner's right of revendication.

Art. 537.— Release, either of the debt itself or only of solidarity, granted by one of two or more joint and several creditors can only be set up against the others to the extent of the share of such creditor in the claim. Where the obligation is indivisible, release granted by one of the creditors cannot prejudicially affect the others, who can enforce the claim in full in conformity with Art. 466.

Art. 538.— A creditor is to be presumed to have released a debt, when he has voluntarily delivered to the debtor the original document containing the latter's engagement, and although he may not have added to it any memorandum indicative of discharge; without prejudice, however, to the right of the creditor to prove that he had a contrary intention. Voluntary delivery of the certified copy of a notarial document or of a judgment, notwithstanding its being endorsed with executory formula, is not sufficient to raise a presumption that the debt has been relexsed; without prejudice, however, to the power of the Courts to draw such inference from the facts of the case. Mere possession of such document by the debtor raises also the presumption, until there be proof to the contrary, that delivery on the part of the creditor has been voluntary.

Art. 539.— Voluntary destruction, tearing, or erasure by a creditor, cither of the whole document of title, or of the signature of the debtor or of any other essential part of the document, raises a presumption equal to that raised by voluntary delivery and subject to the distinctions mentioned in the preceding article that the debt has been released. Such alterations are to be presumed, until proof of the contrary, to have been made by the creditor or with his consent, if the document was at the time in his possession.

Art. 540.— Release of a debt, whether express or implied, and whether directly proved or legally to be presumed, is, until proof to the contrary, to be presumed to have been made onerously. Nevertheless, if release has taken place between persons who were respectively legally incapable to give or receive from each other, direct proof that the release has been granted onerously must be produced.

SECTION IV SET OFF.

Art. 541.— When two persons arc each creditor and debtor of the other this constitutes a ground for legal, optional, or judicial set off, under the conditions and distinctions hereafter mentioned. The two debts extinguish each other up to the amount of the smaller.

Art. 542.— Legal set off takes place as of course, and even without the knowledge of the parties, when both debts are principal, fungible between themselves, clear, and due, and when in addition set off is not excluded by any provision of law or by the express or implied intent of the parties.

Art. 543.— A principal debtor cannot set off what the creditor owes to a surety ; but a surety when sued can set off against the creditor's claim what the creditor owes to the debtor as well as what the creditor owes to him himself in respect of his own rights. A joint and several debtor can only set off what the creditor owes to any co-debtor to the extent of the share of the latter in the debt; but in respect of his own rights he can set off up to the full amount of the debt, if he has the means for so doing. Where there are joint and several creditors, the debtor can always set off against the claimant the full amount of what is due to him by any of the creditors. Where an obligation is indivisible, either between the debtors or between the creditors, set off is admissible in the same manner as in passive or active joint and several liability.

Art. 544.— Periodical payments due by one party to the other of commodities quoted on the local public market can be set off against sums of money due by the other party.

Art. 545.— Debts are clear when their existence, nature, and amount are certain, notwithstanding they may have been disputed in good faith.

Art. 546.— A time of grace accorded by the Court does not act as a bar to set off; neither docs further time gratuitously accorded by a creditor at the request of the debtor. Where one of two debts is subject to a resolutory condition, set off takes place provided there is no eventual cancellation.

Art. 547.— Where both debts are not payable at the same place or in the same money, set off can, nevertheless, take place: in the former case, however, the expenses of transport of the subject-matter or thE difference in price at the respective places must be taken into account, and in the latter the rate of exchange.

Art. 548.— Legal set off docs not take place: 1. Where one of the debts has for its cause a wrongful appropriation of the property of another ; 2. Where there is question of the return of a deposit that is called irregular; 3. Where one of the claims has for its subject-matter something of value which is not liable to attachment by the creditor; 4. Where either of the parties has renounced beforehand the benefit of the right to set off, or where the object which either of them had in view in becoming creditor would not be attained if set off took place.

Art. 549.— The mere notice of a claim given to a debtor whose debt has been assigned docs not deprive him of his right to set up against the assignee those means of legal set off already existing, and which he could have set up against the assignor. If, however, such debtor accepts the assignment without reserving his rights to such legal set off as he has already acquired against the assignor, he is no longer entitled to avail himself of the same against the assignee. Both the above cases arc without prejudice to the debtor's right to obtain reimbursement from the assignor of any sums of money or other things, which he has not been able to set off.

Art. 550.— A person in whose hands is property that has been attached cannot set off against the attachment creditor claims that he subsequently acquires against the attachment debtor. He cannot even set up already existing grounds of set off, unless he has declared them according to the form prescribed, and within the time fixed, by the Code of Civil Procedure. Both the above cases arc, however, without prejudice to his right to rank for what is due to him concurrently with the attachment creditor in respect of sums of money or other things in his possession when attached.

Art. 551.— A person who has paid, although by mistake, a debt already extinguished by set off can only proceed by way of repetition for a payment not due ; without prejudice, however, to what is said in the following article.

Art. 552.— In the cases foreseen by the three preceding articles, a person; who has acknowledged in favor of an assignee or attachment creditor, or who has paid to his creditor himself, a debt already extinguished by set off, can no longer avail himself of suretyships, privileges, or mortgages, which guaranteed his former claim, unless he can prove that he had just grounds for being ignorant of the set off acquired, in which case the original claim is to be restored to him with its securities and other characteristics.

Art. 553.— The party in whose favor the law docs not admit legal set off may avail himself of optional set off; set off can in every case be effected by agreement if all the parties interested consent. Optional set off has no retroactive effect.

Art. 554.— Judicial set off is effected by means of a cross action on the part of a defendant by which he endeavours to obtain the acknowledgment, or the fixing of amount in his favor, of a claim against the plaintiff. The Court can in such case, according to circumstances, either first decide the main action, or else defer so doing and decide both actions together, setting off the respective claims and giving judgment only against the party whose debt is the largest. Judicial set off ret reacts to the time when it was set up.

Art. 555.— If one party has against the other several debts liable to legal or judicial set off, the order in which such debts are to be set off is the same as that established in Art. 493 for legal appropri 1-tion of payments. Where set off is optional or conventional, appropriation follows the rules laid down in Arts. 491 and 492, or the mutual agreement of the parties.

SECTION V. CONFUSION.

Art. 556.— An obligation becomes extinguished by confusion when the qualities of creditor and debtor in one and the same obligation are found united by succession or otherwise in the same person.

Art. 557.— Where the creditor succeeds to one of two or more joint and several debtors, or where one of two or more joint and several debtors succeeds to the creditor, the joint and several debt is only extinguished to the extent of the share of such debtor. Confusion in like manner only extends to a share, where it takes place between one of two or more joint and several creditors and the debtor.

Art. 558.— Where an obligation is indivisible, confusion between one of the creditors and one of the debtors still leaves the obligation existing in its entirety to the benefit or burden of the others ; but he in whose person confusion has taken place cannot sue or be sued for the whole, unless he gives or receives compensation for a share in conformity with Art. 466.

Art. 559.— Where there are united in one and the same person the qualities of two joint and several creditors or debtors, there is no extinction of right or obligation, and he in whose person such union has taken place can sue or be sued for the whole as well in his own name as in the name and place of the person to whom he has succeeded, according to the interests of the creditor. The above applies also to obligations which arc indivisible .either actively or passively.

Art. 560.— Where a surety succeeds to the creditor, or the creditor succeeds to a surety, the suretyship becomes extinguished with all that pertains to it. Where the debtor succeeds to a surety, or a surety succeeds to the debtor, the creditor preserves his right of action as well against the principal debtor as against the cosureties and guarantors of the surety ; pledges and mortgages attached to such suretyship also remain in force.

SECTION VI IMPOSSIBILITY OF FULFILMENT.

Art. 561.— An obligation becomes extinguished when it has for subject-matter the delivery of a specified thing, and when, without the fault of the debtor and before he has been constituted in arrear, the object happens to perish, to be lost, or to be withdrawn from commerce : the same applies where an obligation has for subject-matter something to be taken from a number of specified things, and when the delivery of any of them has become impossible. An obligation to do or to abstain from doing anything becomes likewise extin guished when under the same conditions performance or abstention has become impossible.

Art. 562.— A debtor is not released on the ground above mentioned it he has taken upon himself, at his own risk and peril, inevitable accident and irresistible force, or it he has been constituted in arrear, cither by the act of the creditor or by the nature of the obligation, in conformity with Arts. 350 and 404. Any person, who in consequence of a delict is bound to return the property of another, or to compensate him for his loss, is to be considered constituted in arrear as of course.

Art. 563.— The debtor is bound to prove the inevitable accident or irresistible force on which he relies. Where, being in arrear, he alleges in order to obtain his release, in conformity with the second paragraph of Art. 355, that the thing would also have perished had the creditor had it, it is for him to prove the same.

Art. 564.— Where a debtor is dis-charged on the ground of impossibility of fulfilment, he has only a right to the counter value promised to the extent of the sacrifices that he has already, with a view to fulfilment, been able to make.

Art. 565.— In the case of only partial loss, or where a debtor has a right of action against a third party in order to get his loss made good, the creditor can claim what remains of the thing and can avail himself of such right of action.

SECTION VII. RESCISSION OR NULLITY.

Art. 566.— Obligations contracted by persons without legal capacity, or by persons whose consent has been given by mistake, extorted by duress, or obtained by the fraud of the other party, can be rescinded or annulled by the Court within five years, cither upon their demand or that of their representative, or upon a plea of nullity set up by them in an action for performance. The same time is allowed to persons of full age to bring an action for rescission on the ground of insufficiency of consideration, or to plead insufficiency of consideration ; without prejudice, however, to the special cases in which the law limits them to a shorter period.

Art. 567.— This period for prescription is suspended : In the case of duress, until the same has ceased; In the case of mistake, until the mistake has become known ; In the case of fraud, until it has been discovered; In the case of want of legal capacity, until it has ceased. Nevertheless, if there be question of an agreement entered into with a person deprived of the exercise of civil rights on account of being insane, or with a lunatic, the time for prescription does not begin to run until after the writing which he has signed has, subsequent to his having recovered legal capacity, been notified to him in substance, or come to his knowledge. With respect to convicted persons who are legally deprived of the exercise of their civil rights, the time for prescription, for them as well as against them, for an action or plea of nullity only begins to run from the time of the expiration of their punishment. In the case of insufficiency of consideration in a contract with a person of full age, prescription begins to run from the day of the contract. The ordinary causes which suspend or interrupt liberatory prescription arc, in addition, applicable to the prescription here mentioned.

Art. 568.— Where a person to whom a right of action for nullity belongs dies before the expiration of the above mentioned period of time, such right of action passes to his heirs. Time for prescription with respect to these begins to run from the opening of their right, unless it has already commenced against the deceased, in which case only the time not yet expired then begins to run.

Art. 569.— The agreements and transactions of a guardian in relation to the property of a minor, or to that of a person deprived of the exercise of civil rights, can be rescinded, where the forms and conditions prescribed by law in the interest of persons without legal capacity have not been observed. It is the same in every vase with regard to any thing transacted by a person deprived of the exercise of civil rights, and it is also the same with regard to the transactions of a minor, without the necessary forms, or of a prodigal, or person of weak mind, without the aid of his judicial adviser. The above is, however, without prejudice to actions tor rescission or for nullity on grounds which render such actions available to |persons with legal capacity.

Art. 570.— With respect to agreements and transactions for which no particular-form or condition is required, and which have been consented to only by the minor himself, an action lor rescission will not lie, unless there has been, so far as he is concerned, insufficiency of consideration, or he has sustained some appreciable prejudice, pecuniary or otherwise. Similarly, transactions of a like nature entered into by an emancipated minor without the assistance of his curator, when such has only been rendered necessary by law, arc not subject to attack except on the ground of insufficiency of consideration. Insufficiency of consideration is to be estimated at the time of the doing of the act in question ; such insufficiency as has resulted from a casual and unforeseen event is not to lie taken into account.

Art. 571.— The mere statement made by a minor that he is of age docs not prevent his right to restitution on the ground of want ol capacity or insufficiency of consideration, unless he has in addition resorted to fraudulent artifices in order to induce belief m his being of full age. The same applies to false statements made by other persons without legal capacity.

Art. 572.— Emancipated minors authorized to engage in trade or carry on an industry are to be deemed of full age in respect to any thing done by them in connection with their trade or industry. Nevertheless, they cannot alienate their immovables otherwise than in conformity with the law governing minors generally.

Art. 573.— Things done and engagements entered into by a married woman cannot be rescinded upon her or her husband's application, except in the cases determined by this Code, when treating of the Respective Rights and Duties of Husband and Wife.

Art. 574.— A person of full age who has obtained the rescission of any thing done by him or of any engagement he has entered into, on the ground of want of consent or of insufficiency of consideration, is bound to return whatever he has received in consequence thereof. in the case of a person without legal capacity, he is only bound to make restitution to the extent to which he still happens to be enriched in consequence of the transaction that is annulled. The said lights of action for restitution are only extinguished by the ordinary time for prescription.

Art. 575.— Alienations of immovables that are vitiated by want of capacity, by mistake, or by duress, or that are subject to rescission for insufficiency of consideration, can, subject to the distinctions and conditions mentioned in Arts. 372 and 373, be annulled against third acquirers.

Art. 576.— The defendant in an action lor rescission on the ground of insufficiency of consideration can, so long as judgment on the (acts has not become final, prevent the action having any further consequences by tendering to the plaintiff a full indemnity for the insufficiency of consideration substantiated and the costs of proceedings.

Art. 577.— Apart from what is laid down in Arts. 566 to 568 with respect to prescription, an action for nullity or tor rescission can no longer be maintained, where the parly interested has ratified, either expressly or impliedly, the agreement that is voidable, after the time when prescription began to run against such action in accordance with Art. 567.

Art. 578.— Express ratification is effected by a formal writing containing a declaration of willingness to renounce the right to |petition for nullity. it must also set out the substance of the voidable agreement, and mention the ground for rescission with which the same is tainted. Where the transaction is tainted with several defects, exptcss ratification only effaces that or those which have been specially referred to. Transactions liable to rescission by persons of full age for insufficiency of consideration can only be ratified by express ratification, and on condition that such ratification is not contained in the document itself that is liable to rescission.

Art. 579.— Implied ratification results from voluntary performance, either total or partial, of the agreement, or even front an enforced performance without objection or reservation ; it results also from novation and from the voluntary giving of a real or personal guaranty; it also results, for the creditor, from an application to the Courts to procure performance, and from voluntary alienation of all or part of the things acquirerd under a voidable agreement. Other cases of implied ratification arc left to the Courts to appreciate.

Art. 580.— Ratification cannot prejudicially affect persons claiming under special title under the person having the right of action for nullity, if their rights are subject to the right of bringing such action.

Art. 581.— Transactions in themselves void cannot be ratified ; without prejudice, however, to what is said in the Appendix hereto with respect to ratification by heirs of a donation or will that is void on account of its form.

Art. 582.— An action, the object of which is the correction of an error in account, name, date or place, cannot become prescribed; without prejudice, however, to the prescription of any lights which depend thereon.

SECTION VIII REVOCATION AND CANCELLATION.

Art. 583.— The revocation of engagements entered into in fraud of creditors, and the prescription of revocatory actions are provided for in Arts. 360 to 364. Special grounds for revocation, established in favor of a donor ami of his heirs, arc provided for when treating of Donations.

Art. 584.— Obligations become extinguished by the cancellation of an agreement, whether expressly stipulated for or obtained judicially in conformity with Arts. 429, 441, and 442. Where cancellation has to be judicially applied fur, the action for cancellation except in cases in which a shorter time is fixed by law, only becomes prescribed by the time of ordinary prescription.

SECTION IX. PRESCRIPTION.

Art. 585.— The rules governing liberatory prescription arc contained, together with those governing acquisitive prescription, in the last Chapter of Book V.

APPENDIX. NATURAL OBLIGATIONS.

Art. 586.— Performance of natural obligations cannot be enforced cither by way of action or by plea of set off; it must be voluntary on the part of the debtor, to whose good faith and reason it is left by law. A natural obligation can also be discharged by a third party, either in the name of the debtor or in his own name.

Art. 587.— Whatever has been voluntarily paid or delivered, either by the debtor himself or by a third party, cannot be redemanded as having been paid without being due. It is not necessary that the reason for such payment should have been expressed, provided that proof of the intention to discharge a natural debt results from the facts of the case.

Art. 588.— In the absence of voluntary performance, a natural obligation can form the subject-matter of a formal acknowledgment by the debtor, of a suretyship by a third party, of a novation, or of the giving of a pledge or in mortgage either by the debtor or by a third party. In these several cases the natural obligation thus acknowledged, novated, or guaranteed produces the ordinary civil consequences.

Art. 589.— Where the performance, novation, or guaranty of a natural obligation have been procured by a third party, without the authority of the debtor, the latter is only bound in regard to reimbursement as for a natural obligation.

Art. 590.— The voluntary performance, acknowledgment, or guaranty of a natural obligation is only valid, where it emanates from a person with legal capacity to alienate, or to enter into an obligation.

Art. 591.— A natural obligation can result from an agreement that is void in its origin for mistake excluding civil consent, for absence or insufficiency of description of its subject-matter, or for absence of the solemn forms required. Nevertheless, if it be question of a donation void for want of form, there can be no performance or acknowledgment of a natural obligation by the donor himself, but only by his heirs or those claiming under him. This provision is applicable to the heirs of a person who has left a will that is void in form.

Art. 592.— An agreement void for absence of cause, or tor having an illegal cause, cannot give rise to a natural obligation ; it is the same in the case of an agreement that has for subject-matter things with respect to which, tor reasons of public order, it is prohibited to contract.

Art. 593.— The nullity declared by Arts. 343 and 344 in respect to a promise tor the doing of something by another, and to a stipulation in the interest of another, docs not prevent the forming of a natural obligation on the part of the promisor.

Art. 594.— In addition to those cases in which a debtor can lx: held civilly responsible by reason of an undue enrichment, unlawful injury, or of any provision of law, he can validly acknowledge himself to be bound on the same grounds by a natural obligation.

Art. 595.— A natural obligation can still exist after the nullification, revocation, or cancellation of a civil obligation has been judicially declared. The same applies where a civil obligation has been extinguished by any other legal mode of extinction.

Art. 596.— Any person who has availed himself of the benefit of liberatory or acquisitive prescription, or in whose favor a judgment has been rendered which is no longer open to attack, or who could make use of any other presumption or direct proof of his right or of his release, can still acknowledge himself to be naturally bound.

Art. 597.— The civil assignment of a natural claim is not allowed except on the part of the creditor of a bankrupt, and then only for such sums as he has released to the Litter under a composition.

Art. 598.— A natural debt can be joint and several, or indivisible, if the civil debt whose absence it tills or which it survives had such character.

Art. 599.— Where the ordinary Courts are called upon to decide with respect to voluntary performance, acknowledgment, or other legal consequences of a natural obligation, they decide once and for all as to the intention of the debtor ; their decision is, however, open to be attacked on ground of error in law, where they have erroneously applied the legal dispositions above contained.

Art. 600.— The parties may, by an agreement of compromise, submit to arbitrators to decide as to the existence or extent of a natural obligation even before there has been any performance of it or any voluntary acknowledgment; in this case an award declaratory of a natural obligation is civilly binding ; it is, however, void, where the arbitrators have admitted the existence of a natural obligation in a case in which the law declares it cannot exist, or have stated its existence as impossible when the law allows of its recognition, unless the parties have, in either case, given to the arbitrators full powers to decide according as they consider fair.

BOOK III. THE MEANS BY WHICH PROPERTY IS ACQUIRED. PRELIMINARY PROVISION.

Art. 601.— Independently of those means that have been already mentioned in the two Parts of the preceding Book, by which rights, both real and personal, arc acquired, the same rights can be acquired specifically or individually, as well as generally or collectively, in the manner explained in the two Parts of this Book. A person acquiring under a general title succeeds, subject to the exceptions provided for by law, to all the obligations and also to all the rights of the person from whom it proceeds.

PART I. MEANS OF SPECIFIC ACQUISITION. CHAPTER I. OCCUPANCY.

Art. 602.— Occupancy is a means of acquiring the ownership of movables that belong to nobody by taking original possession thereof with the intention to appropriate them to one's own use.

Art. 603.— Any person who, without authority, has taken game in an enclosed property, where the owner has cither placed it or preserved it, must restore the game itself or its value. The same applies to any person who has taken fish in a private and enclosed pond, lake, or water-course.

Art. 604.— Special laws provide for the exercise of the rights of shooting, hunting. and fishing, as well as for the acquisition of sea, river, and land derelict objects. Naval prize and booty taken in time of war is similarly provided for.

Art. 605.— In case of dispute with respect to the occupancy of a thing that is alleged to have been abandoned by its former owner, the proof of voluntary abandonment rests with the person who sets up occupancy.

Art. 606.— The ownership of treasure found by mere chance in any thing belonging to another, but of which the owner is unknown, belongs as to a half thereof to the finder. The rights of the owner of the thing in which the treasure has been buried or hidden are provided for hereafter in the Chapter on Accession.

Art. 607.— The former owner of the treasure cannot make good his rights so as to interfere with the privileges conferred by the preceding article, unless he does so within a period of three years from the time of the treasure being found. In the case of a person who is at the same time the owner of the thing in which the treasure has been found, such period is reduced to one year from the time he became aware of the finding. The rules of ordinary civil prescription are to be applied where the possessor of the treasure has acted in bad faith.

CHAPTER II. ACCESSION.

Art. 608.— The owner of a thing, whether immovable or movable, acquires, under the distinctions and subject to the indemnities hereinafter determined, every thing that becomes united to it accessorily.

SECTION I. ACCESSION IN RESPECT OF IMMOVABLOES.

Art. 609.— Any thing built, planted, or otherwise made, cither on or under land or buildings, is to be presumed, until the contrary be proved, to have been done by the owner of such land or buddings and at his own expense. In every case the ownership of such works and constructions belongs to him, unless a title to the same or prescription exists in favor of a third party. With respect to any thing planted, the same is governed by Art. 611.

Art. 610.— If the owner of the land or buildings has made any construction or other works with materials belonging to others, he cannot be obliged to destroy the same and return the materials, notwithstanding he may have acted in bad faith ; neither can he oblige the person to whom such materials belong to take the same away. He is, however, to be ordered to compensate such person in conformity with Art. 405, and under the distinctions there laid down.

Art. 611.— With respect to trees, shrubs, or plants, belonging to another, the owner or occupier of the land who has planted the same can be forced, within the space of a year, to root them up and to return them to their owner together with payment of compensation, if grounds for such exist. If the owner of such trees, shrubs, or plants, prefers not to take them back, or if a year has expired since they were planted, he is to be compensated in money.

Art. 612.— An owner or occupier who has sold or donated constructions or other works with a view to their being pulled down, or trees with a view to their being rooted up or felled, can, by indemnifying the vendee or donee, always put a stop to such demolition, rooting up, or felling, if his object is to retain the same.

Art. 613.— An occupier in good faith of land or buildings belonging to another, and who has made on such land or buildings any constructions or works, or who has planted thereon, in using therefor his own materials, tries, or shrubs, cannot be required to remove the same when the immovable is claimed by the rightful owner; the latter must, at his option, pay such occupier either the cost of the materials and labour, or the increased value which the property has acquired thereby. Where the person so constructing or planting was occupying in bad faith, the owner can require him to destroy any works he has made or any thing he has planted, to restore the premises into their original state, and to pay an indemnity, if grounds for the same exist; he may also keep the said works and whatever has been planted, upon payment of compensation therefor to the occupier in manner above mentioned.

Art. 614.— The washing up of soil or other accretion resulting from the alluvion of water-courses, whether navigable or not, belongs to the riparian owners. If such alluvion has occurred on several riparian properties, and has taken place parallel to the water-course or nearly so, each owner benefits thereby to the full extent of his land contiguous to the watercourse, irrespective of what its inland size may be. If on the contrary, the alluvion is at an angle with the water-course, making it difficult to determine the part belonging to each owner, whilst still leaving to him his riparian position, the several owners arc to be deemed co-owners of so much of the alluvion as does not admit of being allotted, their shares being indivisible but proportionate to the extent of the frontage of their respective properties bordering on the water-course in its former state. In no case can the riparian owners, without permission of the administrative authorities, alter the position of towing paths for animals or inen already existing, or construct or plant any thing on intervening alluvion land, which might interfere with the towage of boats or impede navigation.

Art. 615.— Riparian owners benefit, under the same distinctions and conditions, by reliction, or by that portion of the lied of a river or stream, whether navigable or floatable or not, which has been abandoned by its waters. Nevertheless, in the case of a water-course the bed of which belongs to the riparian owners or is public property, accession by successive relictions cannot extend beyond the full breadth of the original bed, or encroach upon the property of opposite owners. This right of accession does not exist in the case of lakes or ponds. It docs not cither arise in the case of sea derelict land, which belongs to the State in conformity with Art. 26. Riparian owners do not either acquire those parts of the banks of navigable or floatable water-courses, which have been laid bare through the making of canals, dikes, or other similar works, by the administrative authorities; without prejudice, however, to their right of prescription under the conditions laid down in the administrative laws.

Art. 616.— Where the force of the waters of a river or stream tears away from a riparian property a portion of the soil, whether planted on or not, and carries it on to another riparian property, either lower down or on the opposite bank, without its having ceased to be capable of recognition, the owner thus dispossessed can only reclaim the said parcel of soil within one year from the accident ; nevertheless, where the riparian owner has not yet taken possession, he can do so even after the year ; he must, however, take away the earth at his own expense and also repair all damage caused by such removal. He can be, also, at any time called upon by the riparian owner to elect between recovery or absolute abandonment of the avulsed parcel. This provision applies under like conditions to trees and crops, whether attached to the soil or not, that have been carried away by the force of waters, as well as to materials that have been got ready for purposes of construction or that arc detached from buildings, as well as to all other movable objects borne by inundations in any direction whatever and carried on to the property of another, provided that they still remain capable of recognition and have not the character of derelict objects.

Art. 617.— The ownership of islands and islets formed in the bed of navigable or floatable rivers or streams, belongs to the State, Fu or Ken, Gun or Ku, according to the classification the water course bears as a means of communication. Islets, which become formed in watercourses that are neither navigable nor floatable, belong to the riparian owners in the same manner as the bed itself. In order to determine the rights of the owners on each bank a longitudinal line is to be drawn along the centre of the water-course, and each riparian owner acquires any islet, or portion thereof, which is on his side. Where the islet is in front of Iwo or more properties on the same side. the second paragraph of Art. 614 is to be applied.

Art. 618.— Where the portion of Land torn away from a property as mentioned in Art. 616 becomes fixed in the watercourse in the form of an isle or islet, the owner can occupy it where it is. Where, however, such water-course is public property, the State, Fu or Ken. or Gun or Ku, according to the distinctions made in the preceding article with respect to the ownership of alluvion islands, can require the cession thereof upon prepayment of a fair indemnity.

Art. 619.— Where a water-course, whether navigable or floatable or not, forms for itself a fresh branch, thereby surrounding all or part of a riparian property and converting the same into the form of an island, the owner of such property preserves his ownership ; subject, however, to the right of expropriation laid down in the preceding article.

Art. 620.— Where a water-course that is neither navigable nor floatable, but which constitutes the line of separation between two properties and belongs to the riparian owners, happens suddenly and completely to change its course, the ownership of the deserted bed belongs to the riparian owners, and is divided among them in the same manner as is laid down by Art. 617 for islets. In the case of a navigable or floatable water-course, the rights to the deserted bed are provided for by Chapter VIII.

Art. 621.— Fish of private ponds and pigeons of cots which go over to another pond or cot without having been enticed or kept there by artifice, belong to the owner of the property to which they have betaken themselves, unless they are claimed within a week and proof given of their identity. Bees that have betaken themselves in a swarm on to a neighbouring property can be followed and reclaimed within a week: nevertheless, this right ceases after three days, where the neighbour has taken and kept them. In the case of animals wild by nature, but that have been tamed and have escaped, a claim for their return must be brought within one month against any person who has in good faith received them.

SECTION II. ACCESSION IN RESPECT OF MOVABLES.

Art. 622.— Where two or more movable things belonging to different owners have been united by a third party without their consent, and the same can be easily separated without causing considerable deterioration or depreciation to either of them, each owner can demand separation, and payment of an indemnity, if grounds for such exist, by the person who has joined them together. Any alteration of the things or injury they have sustained preliminary to their being joined may be regarded as deterioration.

Art. 623.— Where the two things cannot be separated, or this can only be done subject to considerable deterioration or depreciation, or to an unreasonable expense or delay, neither owner can demand separation, but the thing in its then entirety will belong to the owner of the principal thing composing it, subject to his indemnifying the owner of the accessory thing in proportion to the extent to winch he has become enriched to the prejudice of the latter. Where a thing is joined to another for the utility, ornament, or complement of the latter, the same is to be deemed accessory ; it both things are of a like character, then, for present purposes, the accessory thing is that which has the least value. In other cases, the principal or accessory character of each thing with regard to the other is left to the Courts to appreciate.

Art. 624.— Where the joining has taken place through the fault or fraud of the owner of the principal thing and separation ought not, according to the preceding rules, to be effected, the compensation to be made to the owner of the accessory thing is to be measured by the damage sustained, the same being assessed in the manner mentioned in Arts. 390 and 405. Where the latter has caused the joining, he is only to be compensated for his loss to the extent that the other owner has benefited thereby.

Art. 625.— In the same case where the things cannot be separated without irconvenience, and neither of them cm in respect of the other be regarded as principal, either by its nature, quality, or value, the object formed by the joining is to belong in common to the owners in equal shares; without prejudice, however, to the right to compensation from the one who is in fault, or who has acted in bad faith.

Art. 626.— The same rules arc to be applied, under the same distinctions, to a mixture or confusion of liquids, solids, or metals, belonging to different owners. Nevertheless, where co-ownership takes place among the persons interested because the inseparable materials are of like nature and quality, their rights to the mixture are proportionate to the respective quantities belonging to them therein.

Art. 627.— In cases in which the joining or mixture is the consequence of the act of one of the owners, the other is not bound to accept either exclusive ownership resulting from the predominance of his thing therein, or indivisible co-ownership, resulting from the importance and value of the respective things being equal; he is, in such a case, entitled to require that the person causing the accession should furnish him in kind with a thing of like quantity and quality or its value in money.

Art. 628.— Where any person has. with the materials of another, formed an object of a new description or with a new destination, the ownership of such object can be claimed by the owner of the material upon his paying the price of the labour, or the increased value that has resulted therefrom to the materials. If, however, the value of the labour considerably exceeds that of the materials, the ownership of the new object belongs to the artificer, subject to his compensating the owner of the materials. Where the artificer has at the same time furnished a part of the materials, the value of this is to be added to that of tire labour in order to determine the right of preference. The owner of materials made use of without his consent can always waive his right of preference, and demand like materials to his own in quality and quantity, or their value in money.

Art. 629.— Where the joining, mixture, or workmanship has taken place with the express or implied consent of the parties interested, the ownership is to be determined according to their agreement: in case of doubt, separation, although it might be done easily and without any considerable inconvenience, cannot be claimed,and the preceding provisions with respect to right of preference and co-ownership are to be applied.

Art. 630.— In cases of accession to movables, not provided for in the preceding articles, the Courts are to settle all questions of ownership and compensation by the aid, as occasion requires, of applying by analogy the cases therein provided for, and by resorting to principles of natural equity.

Art. 631.— That portion of treasure-trove, which is not allowed to the finder according to Art. 606, belongs by right of accession to the owner of the movable or immovable in which it was buried or hidden. Where the chance discovery is made by the owner himself of such thing, the treasure belongs entirely to him ; to wit, as to one half, by occupancy, and as to the other half, by accession. Treasure found in consequence of explorations made for the purpose by the owner or by his order, or even by a third party without his instructions, belongs by accession in its entirety to the owner. The prescription, established by Art. 607 in favor of the finder of treasure against revendication by the former owner, is also applicable here.

CHAPTER III. FRUITS COLLECTED BY POSSESSORS IN GOOD FAITH.

Art. 632.— The acquisition of natural and civil fruits by a possessor in good faith is provided for by Art. 206.

CHAPTER IV. TRADITION.

Art. 633.— The ownership of things which are only determined by their kind and quantity, and not individually or as specific objects, passes by tradition or delivery, made, in conformity with Arts. 352 and 476, by the person to whom they belong or in his name. In the absence of tradition, their determination by the parties by agreement is sufficient.

CHAPTER V. EXPROPRIATION ON GROUNDS OF PUBLIC UTILITY UNDER JUDICIAL OR ADMINISTRATIVE ORDER.

Art. 634.— In the absence of cession by arrangement of property liable to expropriation on grounds of public utility, the judicial or administrative order pronouncing expropriation transfers the ownership of such property to the State, Fu or Ken, Gun or Ku, or to the assignees of their rights, subject to the obligations and conditions contained in the said order. The above is, however, to be done in conformity with the dispositions contained in Arts. 32 and 368,(5) of this Code and in the special laws on expropriation.

CHAPTER VI. ADJUDICATION AFTER PUBLIC SALE.

Art. 635.— The adjudication pronounced judicially, in conformity with the laws governing extra-judicial civil procedure with respect to movables or immovables attached, transfers to the person in whose favor adjudication is made the ownership in the things adjudicated to him, subject to the obligations and conditions contained in the order of adjudication. The same applies to other adjudications made after public sale in the different cases in which the same are prescribed or authorized by law.

CHAPTER VII. SPECIAL FORFEITURE.

Art. 636.— A judgment ordering special forfeiture by virtue of provisions of the Penal Code transfers the ownership of the confiscated objects to the State, local authorities or public establishments, whichever is designated therefor by the administrative laws and regulations.

CHAPTER VIII. DIRECT ATTRIBUTION BY LAW.

Art. 637.— Where a navigable or floatable river or stream deserts its bed and forms for itself a new one, the owners of the lands it has either wholly or partially freshly occupied acquire by way of compensation the former deserted bed. They are each entitled thereto in proportion to what they have lost, and notwithstanding that there may result to them therefrom an increase of surface extent.

Art. 638.— The other cases in which ownership, usufruct, servitudes, mortgage and other rights, both real and personal, are acquired as a direct consequence of law are mentioned when treating of the matters to which they relate.

CHAPTER IX. SPECIFIC LEGACIES.

Art. 639.— Every person can dispose gratuitously by legacy or by testamentary disposition, to take effect at his death, of any property of which he can dispose gratuitously by agreement.

Art. 640.— Rules with respect to the forms of wills, the requisite capacity to make a will, the portion of property which must be reserved for certain heirs, and the revocation and lapsing of legacies, are laid down when treating of General Testamentary, Dispositions in Part II, Chapter V. of this Book.

Art. 641.— Every legacy that is absolute or only subject to a term, and which has for its subject-matter one or more things, either movable or immovable, individually determined, transfers the ownership to the legatee, although he may be unaware thereof, from the time of the death of the testator, but subject to his right to refuse the legacy. The same applies to a legacy of a right of enjoyment, use, or servitude. Where a legacy is subject to a suspensive or resolutory condition, its consequences are subordinate to the happening of the condition, as provided in Art. 42X and following articles when treating of agreements.

Art. 642.— Where a legacy has for its subject-matter things of quantity, the ownership is only transferred by tradition or other determination made in conjunction with the heir, in conformity with Arts. 352 and 476. The general rules governing payments are applicable to the discharge of such a legacy.

Art. 643.— A testator can impose on his heir an obligation to do or to refrain from doing any thing ; the effect thereof is the same as if the heir was under an obligation towards the legatee in consequence of an undue enrichment.

Art. 644.— A will can have for subjectmatter the renunciation of a right of servitude or of any other real right which the testator has over the thing left to the legatee : in such case, the right is extinguished in the same manner as by a renunciation made between persons living. A disposition by which a testator has released a debt to his debtor effects, as of course, the discharge of the latter, and causes all interest to cease to run from the time of the testator's death. The same applies where a testator has bequeathed to a debtor his discharge as towards the heir. The provisions that govern gratuitous conventional releases are applicable, in so far as the occasion admits, to legacies discharging debts.

Art. 645.— Where a testator has bequeathed a thing over which he had only an undivided right, the legatee acquires the same right, and the partition to which he will be a party will have for him the same consequences as it would have had for the testator. Where the thing bequeathed formed a portion of a succession or other universality of things over which the testator had only an undivided right, the legatee is not to participate in the partition, but he is to receive cither the thing itself if it falls to the lot of the heir of the testator, or its value if it falls to the lot of one of the other co-owners.

Art. 646.— The legatee is only entitled to the fruits and interest arising from the thing left to him from the time of demand being made to the heir for delivery, and when in addition the term (if any) fixed has elapsed, or the condition (if any) has been fulfilled. Nevertheless, he is entitled to the fruits from the time of death and of their falling due, without making any demand, in the three cases following: 1. Where the testator has so declared ; 2. Where the legacy has an alimentary character ; 3. Where the heir has knowingly concealed from the legatee the disposition made in his favour.

Art. 647.— The thing left must be delivered to the legatee with its natural accessories in the state in which it was at the time of the death of the testator, if the legacy is absolute; and in the state in which it is at the time that delivery can be demanded, where the legacy is subject to a term or a suspensive condition. Improvements or deteriorations sustained by the thing through the acts of the testator, or which result from inevitable accident or irresistible force, benefit or prejudice, as the case may be, the legatee. Similar alterations made to the thing by the heir give rise to right to compensation as between him and the legatee respectively. Where a legacy has been made subject to a resolutory condition and such condition is fulfilled, the legatee or his heir must restore the thing in the state in which it is ; without prejudice, however, to the rights of the respective parties to compensation for improvements or deteriorations which are not the result of inevitable accident or irresistible force.

Art. 648.— The legatee of an immovable does not get the benefit of acquisitions made by the testator, subsequent to the will, of lands or buildings, although contiguous or intended to improve the working of such immovable, unless a new disposition to such effect has been made in his favor, or unless such acquisitions have been incorporated into the immovable by the testator by means of new enclosures or doing away with existing partitions. Any thing constructed or planted by a third party on the land devised, and acquired by the testator, are always to be regarded as having been incorporated by him in the legacy. The same applies to other cases of accession or incorporation as provided for above in Chapter II.

Art. 649.— Where the thing devised or bequeathed has been mortgaged or pledged, before or subsequent to the testament, for a debt of the testator or of a third party, the heir is not bound to disencumber it before delivery, unless the testator has required him to do so ; if, however, the legatee is proceeded against on the ground of the mortgage or pledge and is evicted or forced to pay the debt, he has his right of recourse on the ground of guaranty against the heir. The consequences of alienation of a thing left by will, in so far as it operates an implied revocation of the legacy, are provided for in Part II, Chapter V, of this Book.

Art. 650.— The legacy of a thing individually determined is void, if the ownership thereof does not belong to the testator at the time of his death. Nevertheless, where the will contains proof that the testator was aware that the thing belonged to somebody else, and that it was his intention to impose on the heir the obligation to acquire it for the legatee, the heir, in default of so obtaining it, is liable for its estimated value. Such intention on the part of the testator is always to be presumed, where the thing devised or bequeathed belongs to the heir and is so described in the will.

Art. 651.— In cases where the legacy of an immovable belonging to a third party or to the heir himself is valid, the writing of assignment, entered into between the heir and the legatee, should be transcribed. Art. 370 is to be applied for the purpose of settling priority between the legatee and other assignees of real rights over the immovable.

Art. 652.— In the case of a legacy of an immovable belonging to the testator, the legatee must have the same transcribed within fifteen days after and inclusive of the day of the delivery of possession thereof to him, where such delivery has been voluntarily agreed to by the heir. Where the heir disputes the legacy, a claim for delivery is not to be judicially received until after it has been entered by extract in the register of transcriptions, and, in the case of judgment being subsequently given against the heir, the same must be transcribed in the registers, with a note in the margin of the claim, within an interval of fifteen days after and inclusive of the day on which it became no longer susceptible of appeal.

Art. 653.— In all other cases, the legacy must be transcribed within one year from the opening of the succession, even although its operation may be still suspended by some condition.

Art. 654.— In the absence of transcription within the time prescribed by the preceding article, a legacy of an immovable cannot be set up against third parties who have acquired real rights over such immovable, and have been the first, in conformity with Art. 368 and following articles and with what is laid down when treating of Privileges and Mortgages, to publicly make them known.

CHAPTER X. NAMELESS AGREEMENTS AND CONTRACTS.

Art. 655.— In addition to the agreements and contracts, the rules for which and consequences of which arc laid down by law in the following Chapters, persons are at liberty to make such agreements or contracts as, they may see fit in order to create, transfer, modify, or extinguish real or personal rights, provided that the same are in no case opposed to public order or good morals. Such agreements or contracts arc called “nameless,” and are governed by the dispositions of Book II, Part II, and by the dispositions governing the Named Contracts with which they have the greatest analogy.

CHAPTER XI DONATIONS BETWEEN PERSONS LIVING.

Art. 656.— A donation between persons living is an agreement whereby the donor confers a real or a personal right, gratuitously or without equivalent on the donee, who accepts the same. It can also consist of the gratuitous release or surrender to the donee of a real right of the donor over a thing or of a personal right against him.

Art. 657.— A donation can be absolute, subject to a term, or subject to a condition ; the condition, however, whether suspensive or resolutory, must not, under pain of nullity, be purely potestative on the part of the donor. A donation cannot be revoked by the donor or his heirs, except for the reasons determined by law:

Art. 658.— A donation between persons living is void if its subject-matter is a thing or a right belonging to a third person or to the presumptive heir of the donor, and irrespective of whether the donor has stated or not that he was aware that the thing belonged to somebody else. The donor, as such, docs not guarantee the donee against eviction, unless the same is the consequence of some act of the donor himself done subsequently to the d mation, or unless there has been fraud in the giving of something belonging to a third person.

Art. 659.— A donation between persons living of real immovable rights is subject to transcription, in accordance with the provisions of Art. 368 and following articles. The other general rules governing onerous agreements are applicable to donations, in so far as there is nothing expressly or impliedly stated to the contrary either in the law or in the instrument of donation.

Art. 660.— The rules relating to the form of donations between persons living, the legal capacity to give or receive, the portion of the estate reserved to heirs, and the grounds for which donations may be revoked, are laid down when treating of General Donations in Part II, Chapter III, of this Book.

CHAPTER XII. SALE.

SECTION I. GENERAL RULES GOVERNING SALES. SUBSECTION 1. NATURE AND FORMATION OF THE CONTRACT OF SALE.

Art. 661.— A sale is a contract whereby one party transfers, or binds himself to transfer, to the other the ownership, entire or dismembered, of a thing in consideration of a specified price in money, which the other party or a third person undertakes to pay him. Contracts of sale are subject to the general rules governing onerous and synallagmatic contracts, in so far as the same do not conflict with the provisions hereinafter contained.

Art. 662.— A sale is complete by the mere accord of the parties. They can, however, make it dependent on the preparation of a contract in writing. or under private seal, in duplicate original, which is to serve as proof thereof for each party. Art, 663.— A unilateral promise to sell or a unilateral promise to buy received and accepted binds the promisor, in conformity with Art. 329, to enter into a contract according to the price and conditions specified in the promise, as soon as the promisee so requires. If no time has been expressly or impliedly fixed for acceptance, the promisor can apply for a time to be fixed by the Court after the expiration of which the promise is to be considered as not made, unless the promisee has meanwhile demanded its fulfilment.

Art. 664.— Where the promisor refuses to enter into the contract, the Court is to deliver a judgment holding the sale as made with its attendant consequences. Such judgment in the case of the sale of immovable rights must be transcribed. Where the promise of sale has been transcribed as such, the judgment is to be noted in the margin of such transcription, and will have a retroactive effect against those claiming through the vendor.

Art. 665.— Where reciprocal promises to sell and to buy exist, cither party can require the other to enter into a contract in manner mentioned in the preceding article. The Court, in such a case, has also power, by interpreting the intention of the parties, to decide that the promise of sale was equivalent to actual and immediate sale, and, if a period of lime has been named, that the same applies only to performance.

Art. 666.— In any case where, according to the four preceding articles, each or only one of the parties has become bound to subsequently enter into a contract of sale or purchase, or to have a written contract prepared, and earnest (arrha) has been given as guaranty for his promise, the party who refuses to enter into the contract or to have the same prepared forfeits the earnest that he has given, or has to return double the earnest he has received.

Art. 667.— In the case of actual and immediate sales, earnest can only be resorted to as a means to break off a contract under the following distinctions : 1. By the vendor, if it be he that has given it, irrespective of what it may consist; 2. By the purchaser, where it consists of something other than money ; 3. By either party, where earnest has been given by both, whether in money or otherwise, and when they have formally given to it the character of a means of withdrawal ; withdrawal is no longer possible in any case or by either side, where the contract has been performed in whole or in part.

Art. 668.— Where a sale has been made” on trial,” it may, according to circumstances, be considered as made subject to the suspensive condition of the purchaser s approval, or subject to the resolutory condition of his refusal. Sales of commodities that it is customary to taste are to be presumed made subject to the suspensive condition that they meet with approval.

Art. 669.— In both the cases provided for by the preceding article, the purchaser, in the absence of a lime being fixed within which he must exercise Ins right of option, can be called upon to decide within a short named period ; if he fails to do so, he is to be presumed to have accepted where he has taken delivery of the thing or commodities sold, and where he has not done so, to have refused.

Art. 670.— The price of sale, if not by its whole amount at all events by its essential data, must be settled in the contract itself. It can, however, be fixed by reference to the present or future commercial quotation for like goods, or left to the valuation of a third party named in the contract. In this latter case, the valuation can be disputed if it is manifestly erroneous or contrary to equity ; but such objection must be raised by the party aggrieved as soon as he becomes aware of the valuation. If there has been concerted fraud between such third person and one of the parties, Arts. 333 and 566 are applicable. The price fixed by the parties can consist either of a lump sum, or of an annuity in perpetuity or for life ; where, however, it is fixed by a third party, it can only consist of a lump sum, unless the parties have expressly given to such arbitrator more extended powers.

Art. 671.— The costs of the written contract of sale are to be borne by the parties in equal shares, unless they have otherwise agreed.

SUBSECTION 2. PERSONS INCAPABLE OF SELLING OR PURCHASING.

Art. 672.— Contracts of sale, both of movables and immovables, arc prohibited between husband and wife. Husband and wife can, however, give things by way of payment the one to the other in the case of one of them having to extinguish a true and legal debt owing to the other. In such case, the giving in payment is not valid and complete between the parties, until the Civil Court, on being satisfied of its legality, has confirmed the same. Where it has for subject-matter a real immovable right, it will not be valid with respect to third parties, unless the said confirmation has been noted in the transcription of the document.

Art. 673.— The right of action for annulment or for rescission based upon the preceding article only belongs to the husband or wife who has made the sale or the unauthorized payment, or to his or her heirs, or to persons claiming through him or through her; it is, moreover, subject to the general dispositions contained in Art. 566 and following articles.

Art. 674.— Legal, judicial, and conventional mandatories or administrators cannot, either by private arrangement or by public auction and cither in their own names or by means of intermediaries, become acquirers directly of any property with the sale of which they have been entrusted. The same prohibition applies to public officials entrusted by law with the conduct of public sales or with presiding thereat.

Art. 675.— The right of action for annulment of a sale made contrary to the preceding article belongs only to the former owner, and his heirs, or persons claiming through him.

Art. 676.— Judges, public procurators, and court clerks cannot become acquirers of real or personal rights that arc actually in dispute, or that are likely to become the subject of litigation before the Court in which they discharge their duties. The same prohibition applies to advocates and to notaries in respect of rights in dispute, which may be submitted to the Court within whose jurisdiction they practise.

Art. 677.— An action for annulment on the ground of the preceding article can only be brought by the grantor, or by the person to whose prejudice the rights in dispute or submitted to litigation have been assigned, and by their heirs or persons claiming through them. The person to whose prejudice the disputed rights have been assigned can, if he prefers, take over the assignment of the said rights by reimbursing the assignee the actual price of assignment together with interest thereon from the date of payment. Without prejudice in either case, however, to the disciplinary punishment of the offenders.

SUBSECTION 3. THINGS INCAPABLE OF BEING SOLD.

Art. 678.— A sale is void when it has for subject-matter a thing which by its nature is outside general commerce, or the disposal of which by individuals is forbidden by special law. The invalidity of such sale can be relied on by either party, by way of plea as well as by way of action. Where the fact of prohibition has been concealed by the fraud of one of the parties, such party can be ordered to pay damages.

Art. 679.— The sale of a thing belonging to a third person is void with respect to both the parties thereto. Nevertheless, such invalidity can only be relied on by the vendor, if he was unaware at the time of sale that the thing belonged to some one else. Rules with respect to the bringing of actions and setting up of pleas, the return of the price, and the compensation due by the vendor are laid down in the following Section, when considering the subject of guaranty against eviction.

Art. 680.— A sale is void, where, at the time of making the contract, the thing had totally perished ; without prejudice, however, to the right of a purchaser in good faith to compensation, if the vendor was aware of such loss, or was in fault in being ignorant of it. Where the thing had at such time only perished in part, the purchaser, if he was unaware of such fact, has the option of either cancelling the sale on establishing that what remains is not sufficient for his requirements, or of maintaining it subject to a proportional reduction in the price; without prejudice, however, in either case to damages, if the vendor has been in fault. An action for cancellation cannot be brought after six months, or an action for reduction of price after two years, from the time that the purchaser became aware of the partial loss; without prejudice, however, to cases where there has been express or implied ratification.

SECTION II. EFFECT OF THE CONTRACT OF SALE. SUBSECTION 1. TRANSFER OF OWNERSHIP AND RISKS.

Art. 681.— A contract of sale is subject, so far as regards the transfer of ownership and the risks of the thing sold, to the rules of general law laid down in Arts. 351. 352. 355. and 439

Art. 682.— Where the subject-matter of sale is an immovable, the contract, in order that the same may be set up against persons claiming through the vendor under special title and in good faith, must be transcribed in the manner mentioned in Art. 368 and following articles. For the same purpose, Arts. 366 and 367 are applicable to the case of sales of corporeal movables and rights of claim.

SUBSECTION 2 OBLIGATIONS OF THE VENDOR.

Art. 683.— Apart from the obligation to transfer the ownership in the case of things of quantity, the vendor is bound to deliver the thing sold, to keep it until delivery, and also to guarantee the pur-chaser against any disturbance or eviction based on any of the grounds hereinafter specified. The obligation to keep the thing is governed by Art. 354.

SUBSECTION 2(a). OBLIGATION TO DELIVER.

Art. 684.— The vendor is bound to deliver the thing at the time and place agreed on in the state in which it is; without prejudice, however, to the compensation due to the purchaser in the case of negligence in its keeping. In the absence of any agreement as to time and place of delivery, the sixth and seventh paragraphs of Art. 353 are to be applied. Nevertheless, the vendor can retain possession until payment of the price, unless the purchaser has by agreement obtained further time for payment. The vendor can, however, delay delivery, notwithstanding that he may have granted time for payment, if the purchaser has been declared bankrupt or has become insolvent since the sale, or if he concealed the fact of his being in an insolvent condition prior to the sale.

Art. 685.— The vendor must, as a general rule, deliver the full quantity promised by the contract and that quantity only. Nevertheless, he may be bound to cede more and the purchaser may be bound to take more, in the cases and under the distinctions mentioned in the following articles.

Art. 686.— Where the thing sold is a specified immovable, the total extent of which has been declared in the contract and the price mentioned according to measurement, but the actual extent is less than that stated, the Vendor must submit to a proportionate reduction of the price, and notwithstanding that he may have declared that he sold “without guaranty as to extent.” If the actual extent is in excess of that declared, the purchaser must pay a proportionate increase of price.

Art. 687.— Where an immovable has been sold with mention of its total extent for a lump sum, the vendor, in the case of a deficiency in its extent, will not have to submit to a reduction of price unless he has acted in bad faith, or if he has acted in good faith, unless he has guaranteed such extent, or unless the deficiency amounts to at least one twentieth of the whole. Mention that “the extent is not guaranteed.” or that “the extent is only approximate,” docs not lessen the liability of a vendor who has acted in bad faith. In the case of an excess, the purchaser has not to pay any increased price unless the excess is one-twentieth or more.

Art. 688.— Where two or more properties. whether built on or not, have been sold by one and the same contract for a lump sum, with mention of the extent of each, and there happens to be a greater extent in one and a less extent in the other, the deficiency of one is to be set off against the excess of the other according to the respective value thereof by measurement and not according to the mere extent; there still remains, however, ground for proportionate increase or decrease of price, if, after such set off being made, there is either a plus or minus balance of one-twentieth of the original price. This distinction is also to be applied to cases where different parts of one and the same property are different in nature and the extent of each part has been stated.

Art. 689.— In the different cases in which the purchaser is entitled to a reduction of price for deficiency of extent, he can also claim damages, and even cancellation of the contract, provided he can prove that the promised extent was necessary for his requirements, and provided the sale was not made “without guaranty as to extent.” Where, in the case of excess, the purchaser has to pay an increase of one-twentieth or more in the price, he may withdraw unconditionally from the contract.

Art. 690.— The rules which precede are to be applied to sales of commodities and of movables, the declared quantities of which either in weight, number, or measure cannot be easily and at once verified by the purchaser.

Art. 691.— Actions to obtain a rectification of price, damages, or cancellation, as authorized by the preceding articles, must be brought within one year in the case of immovables, and within one month in the case of movables. Such time runs, for the vendor, from the date of the contract, and for the purchaser from the date of delivery, or from the date of payment in full of the agreed on price, if the same has taken place prior to delivery.

Art. 692.— Where, in sales of movables or immovables, there is mistake with respect to the qualities of the thing sold Art. 331 is to be applied.

SUBSECTION 2(b). OBLIGATION OF GUARANTY AGAINST EVICTION.

Art. 693.— Where there has been sale of a thing belonging to a third person and no special agreement has been made in respect of guaranty, the purchaser can have the sale declared void, even before being threatened with eviction, and notwithstanding that at the time of making the contract he may have known that the thing did not belong to the vendor, whilst the latter was ignorant thereof.

Art. 694.— Where the purchaser has acted in bad faith, the only consequence of nullity of the sale and of guaranty is to discharge him from the obligation to pay the price if still due, or to entitle him to recover so much thereof as he has already paid. He is not bound to submit to any reduction in the amount recoverable, notwithstanding that the thing may have diminished in value, unless such diminution has resulted from fraud on his part or he has derived benefit therefrom. When the purchaser receives back the price he has paid, he must restore to the vendor possession of the thing.

Art. 695.— Where the purchaser has acted in good faith at the time of the contract, he is entitled to obtain, in addition, reimbursement ; 1. Of the share paid by him of the costs of the contract; 2. Of money expended by him on the thing sold, and which has not been reimbursed him by the true owner ; 3. Of the increased value that the thing may have acquired, although arising fortuitously; 4. Of fruits collected subsequent to demand made by the owner, and of which restitution has had to be made to him. The purchaser can, however, if he so prefers, demand in lieu and instead of such fruits, legal interest during a corresponding period on his price of purchase. A purchaser in good faith can also claim any other damages to which he can in conformity with general principles of law, show himself entitled, such as costs incurred by him in defending an action of revendication by the owner as well as those of his own action on ground of guaranty.

Art. 696.— Where the vendor has acted in good faith at the time of making the contract, he is, in conformity with Art. 405, only liable for the compensation provided for in the second, third, and last paragraphs of the preceding article to such extent as he might reasonably have anticipated.

Art. 697.— Where a vendor in good faith discovers subsequently to the contract that the thing belongs to another, he may when summoned to deliver it, and notwithstanding that the purchaser offers to pay him the price, set up the nullity of the sale and obtain a decision, by means of plea, settling all questions of guaranty, unless the purchaser declares formally that he waives all right of recourse in case of eviction.

Art. 698.— Where such discovery has not taken place until after delivery, the vendor can constitute the purchaser in arrear either to bring forthwith his action on ground of guaranty, or to have mutually settled the amount of compensation actually due in accordance with Art. 695. In this latter case the vendor by depositing after tender the amount so estimated with the price received is protected from any further liability, whenever an action on ground of guaranty is brought. Where the vendor has, in the terms of Art. 500, exercised his right to uplift the sums deposited, he cannot a second time avail himself of the advantages conferred by this article.

Art. 699.— Where the vendor of a thing belonging to a third person has subsequently become owner of the thing sold, he can at any time call upon the purchaser to elect between his right of action on ground of guaranty and ratification of the sale with proper compensation. The same right belongs to the true owner who has become heir of the vendor of a thing belonging to another, and to any one who has succeeded to troth of them.

Art. 700.— Where the thing sold belongs as to a divided part thereof to a third person either as owner or as bare owner, and the purchaser proves that on account of its nature or size, such share is of such utility that he would not have purchased had he known that he was not to acquire it, he can have the contract rescinded with damages, in manner provided in the case of total eviction. Where the purchaser does not obtain cancellation of the contract, he is to be indemnified to the extent of the direct and actual loss sustained.

Art. 701.— Where the share belonging to the third person is undivided, the purchaser has a right to cancellation with damages irrespective of the importance of such share. If he does not insist on cancellation, he can always recover a corresponding portion of his purchase price and of the costs of making the contract, notwithstanding that the thing may have diminished in value, and damages in addition if it has become more valuable.

Art. 702.— The provisions of Art 700 arc applicable where there has been eviction from an active servitude mentioned in the contract as belonging to the property sold, or reclamation by a third person of a passive servitude established by the act of man and not mentioned in the contract, or of a right of usufruct, or of a right of lease over a part of the property sold, or even over the whole, if the time still to run does not exceed one year in the case of buildings, or two years in the case of lands. In the case of a right of usufruct, or of a right of lease extending over the whole of the property sold the length of which is for more than one year for buildings and two years for lands, the purchaser can, in conformity with Art. 701, have the sale cancelled without having to prove the insufficiency of the rights which remain.

Art. 703.— Where the property sold is charged with privileges or mortgages, whether declared in the contract or not, and the purchaser, through not having complied with the necessary formalities to free it therefrom, cither before or at the time of payment of the purchase money, is dispossessed by the creditors of the vendor, he has against the latter his right of recourse on ground of guaranty as provided by Arts. 695 and 696.

Art. 704.— Where sale has taken place by virtue of an adjudication after attachment, the evicted purchaser can have recourse for restitution of the price against the attached debtor and, in case of his insolvency, against the creditors to whom the price has been distributed. The purchaser cannot claim damages from an attaching creditor, unless the latter was aware at the time of attachment that the thing did not belong to the debtor, nor can he do so from the debtor unless the latter has fraudulently denied or concealed the rights of third persons to the thing. Public officials entrusted with the keeping of the fee registers and with adjudication proceedings are not liable for damages, unless by grave negligence in the discharge of their duties they have contributed to the mistake of a purchaser.

Art. 705.— The vendor of a right of claim is, as of course, guarantor of the existence in his favor of such right and of its validity. He is not guarantor of the debtor's solvency, unless he has expressly given such guaranty. Even in this case, he is, in the case of a claim already due, and unless there be a formal engagement of a more extensive nature, only answerable for the debtor's actual solvency, that is for his solvency at the date of assignment, and only to the extent of the price he has received ; without prejudice, however, to the special rules governing commercial securities negotiable by endorsement. Where in the case of a claim that has not yet fallen due, the assignor has guaranteed without other specification “the future solvency of the debtor,” the guaranty ceases to apply, where the insolvency of the debtor whose debt has been assigned takes place later than one year after the due date of the debt, and in the case of an annuity in perpetuity after ten years from the assignment.

Art. 706.— In the case of an assignment of a right in litigation, whether real or personal, the assignor, in the absence of special agreement, and if the assignee was aware of the litigation, is only guarantor of the genuineness of his pretension and not of the existence in fact of the right assigned. A right, for the purposes of the above disposition, is to be deemed as in litigation, where it is already the subject of a formal dispute, judicial or extra-judicial, concerning its very existence. Where under this article a guaranty is incurred, the assignor, in addition to restitution of the price of assignment and costs, is bound to compensate for the advantages which the assignee reasonably expected.

Art. 707.— A person who as heir or as general legatee has sold his undivided right to the whole or part of a succession that has been opened, is guarantor of the existence of his right to such succession in respect of the share or part sold. He is not guarantor of any specific advantage unless he has so stated.

Art. 708.— If he has sold his rights “such as they are,” without specifying for what part he is heir or legatee, the purchaser will benefit from any increase arising from shares lapsing where the same happens, and will in the reverse case have to submit to any decrease.

Art. 709.— The assignee of an inheritance must in every case guarantee the vendor against all future legal proceedings in respect of the debts of the succession. Where the vendor has already paid all or part of such debts or incurred expense in preserving the estate, or where he has himself rights of claim against the succession, the assignee must credit him therewith. On the other hand, the vendor must credit the assignee with what he himself owes to the succession, with what he has received in respect of inherited rights of claim, and with any other benefits he has derived from the succession.

Art. 710.— Where, in any of the above mentioned cases, it has been agreed that the sale is made “without guaranty, or without any guaranty whatever.” the vendor, nevertheless, remains bound to return the price paid in the event of the purchaser being evicted, unless the purchaser was at the time of sale aware of the risk of eviction, when even this restitution has not to be made. The same applies in every case in which the sale has been made “at the risk and peril of the purchaser.” In no case, however, and by virtue of no stipulation can the vendor escape from a guaranty against disturbance or eviction, resulting from rights conferred by him cither prior or subsequent to sale.

Art. 711.— Where the vendor, on the ground of bad faith on the part of the purchaser, alleges that he is not bound by all or part of his obligations arising from eviction, transcriptions of documents affecting the thing sold in favor of third parties will not exempt him from furnishing direct proof that the purchaser had knowledge, before sale, of such documents either by means of certificates issued by the keeper of the registers or otherwise.

Art. 712.— Art. 419 and 420 are to be applied to the summoning of the vendor on ground of incidental guaranty, and to loss of right by the evicted purchaser in default of making the guarantor a party.

SUBSECTION 3. OBLIGATIONS OF THE PURCHASER.

Art. 713.— The purchaser must pay the price at the time agreed on and. in the absence of any special agreement with respect thereto, at the time of delivery An agreement deferring delivery is to be taken as a tacit deferring by the parties of payment of the price. Where the vendor has obtained from the Court a time of grace for delivery, the purchaser has the same further time for payment of the price. Similarly, a time of grace granted for payment of the price extends also to delivery.

Art. 714.— In the absence of any agreement as to place, payment is to be made at the place where delivery is effected in the case of a movable corporeal thing, and at the place where the documents of title arc handed over in the case of an immovable, of a right of claim, of a right in litigation, or of a right of inheritance. Where payment is due either before or after delivery, it is to be made at the domicile of the purchaser.

Art. 715.— The purchaser owes, as of course, interest on the purchase price from the time of delivery, where the thing produces fruits or other periodical benefits appreciable in money In the contrary case, no interest is owing except by virtue of special agreement or in consequence of a notice to pay the price.

Art. 716.— Where a purchaser is disturbed, or has reasonable grounds for believing that he will be disturbed, by having a real action brought against him. he can, according to the importance of the action, refuse to pay the price either in whole or in part, until the vendor has put a stop to such disturbance or risk of the same, or has given him security for repayment of the price in case of eviction This disposition does not prejudice the light of the purchaser to have the sale declared void and to bring his action on the ground of guaranty, where he can directly prove that the thing belongs to a third person.

Art. 717.— Where entries of mortgage or privilege are existing in respect of an immovable that is sold, the purchaser is not bound to pay the price until after having completed the formalities necessary toi its purge, provided that he takes such steps within the time required by law.

Art. 718.— Where, in the cases mentioned in the two preceding articles, the necessary formalities for the preservation of the privilege of the vendor and of his light of cancellation as aga list third parties have not been observed, he can insist that the purchase price be deposited forthwith by the purchaser in his and the purchaser's joint names, so that the same cannot he withdrawn until conclusion of the proceedings and then paid over as the parties may agree or as the Court may decide.

Art. 719.— Where a purchaser of movables, whether the price has been paid or not, does not take delivery at the time hen he is entitled to do so, the vendor can proceed by tender and deposit of the things sold, in conformity with Arts 495 to 500. Nevertheless, in the case of coinmodities or other objects liable to rapid de terioration, the vendor, if it be possible, must resell the same for account of the purchaser.

SECTION III. CANCELLATION AND RESCISSION OF THE CONTRACT OF SALE. SUBSECTION 1. CANCELLATION FOR NONFULFILMENT OF ITS OBLIGATION.

Art. 720.— Where one of the parties fails in whole or in part to fulfil his obligations such as the same are here above determined, or any other obligations by which he may have specially bound himself, the other can apply judicially for cancellation of the contract and for compensation for his losses, if any, in conformity with Arts. 441 to 444 Where cancellation has been expressly stipulated between the parties, the Court cannot retard it by according a time of grace ; it does not, however, take effect, as of course, until the party who is in default has been ineffectually constituted in arrear.

Art. 720 (bis).— Cancellation for nonpayment or for non-fulfilment of his other obligations by the purchaser cannot be insisted on by the vendor against sub-acquirers, unless the transcribed document of sale mentions that all or part of the price is still due to him or sets out the other charges and conditions imposed on the purchaser. Nevertheless, the vendor can always protect his right of cancellation as against third parties by subsequently making public, in manner mentioned in Art. 372, such charges and conditions or his application for cancellation.

Art. 721.— Where, in the case of a sale of movables made subject to a term for payment, delivery has taken place, the vendor cannot enforce his right to cancellation in default of payment to the prejudice of other creditors of the purchaser. Where the sale has been nude without a term for payment, the vendor can have the sale cancelled at any time within eight days after delivery; without prejudice, however, to real rights already acquired by third persons acting in good faith.

SUBSECTION 2. EXERCISE OF THE RIGHT OF OPTION OF PURCHASE OR REDEMPTION.

Art. 722.— The vendor can by means of a provision for repurchase or redemption inserted in the contract of sale stipulate that such sale shall be cancelled, if within a specified time he returns to the purchaser the price and the share of costs paid by him. Such time cannot exceed five years for immovables and two years for movables. Where the stipulation is made for a longer time, it is, as of course, reduced to such period. Such time once fixed cannot be prolonged even within the respective limits of two and five years. Nevertheless, prolongation may be considered as a promise by the purchaser to resell ; in such case, it is governed by the provisions of Arts. 663 and 664. The same applies to a stipulation for repurchase made subsequently to sale or by a separate document.

Art. 723.— The vendor cannot stipulate validly for option of repurchase, where he grants an interval of time for payment of half or more of the price, or where the time so granted is equal to or greater than half the time fixed for repurchase.

Art. 724.— With respect to immovables. the exercise of the right of option of repurchase, within the time and under the conditions established by law, effects the re-entry of the thing sold into the hands of the vendor free from all real rights conferred by the purchaser or acquired by third persons through him, with the exception of leases that have still not more than three years to run. In the case of movables, the option of repurchase cannot be exercised against third parties who have acquired in good faith real rights over the thing sold.

Art. 725.— The vendor's creditors can exercise the option of repurchase in his place and stead. Nevertheless, the purchaser can insist upon their first establishing the insolvency of their debtor and upon their getting themselves judicially subrogated to the vendor, in conformity with Art. 359, for the purpose of exercising such option. The purchaser can, however, put a stop to the action taken by the creditors by paying them off to the extent of their intercst, after deducting therefrom such amounts as the vendor would have to pay back to him.

Art. 726.— Where a thing sold subject to redemption has been subsequently mortgaged or charged with other real rights by the vendor, the consequences of these rights arc subordinated to the exercise of the right of repurchase by the vendor himself, or by his creditors in the case of the preceding article. Where the vendor has alienated the ownership of the thing subject to redemption, its acquirer can exercise the right of repurchase in his own name, provided he respects other real rights previously agreed to by the vendor and disclosed by transcription, and without prejudice to his right of recourse on ground of guaranty.

Art. 727.— A vendor availing himself of his option of repurchase must, within the time fixed, reimburse the purchaser in addition to the original purchase price and the costs of the contract the expenses incurred by him in preserving the thing. Where the purchaser refuses to receive the said sums of money, they should forthwith be placed on deposit. The vendor has also to reimburse all expenses incurred which have improved the thing; but he may, for so doing, obtain time from the Court. The purchaser enjoys the right to detain the thing until payment in full of the said amounts.

Art. 728.— Where a sale subject to redemption has had for its subject-matter an undivided share in an immovable, and the purchaser, upon partition sale obtained against him, has had himself adjudicated owner of the whole property, the vendor can only exercise his right of redemption against the whole, and must add to the price he has received the amount of the price paid on such sale. The purchaser on his side cannot object to redemption of the whole. If such partition sale has taken place on application of the purchaser, the vendor is entitled to exercise his right of redemption in respect only of the part he sold. The purchaser also in such case is entitled to oppose redemption of the whole.

Art. 729.— Where adjudication upon partition sale, irrespective of winch parly may have applied for the same, has been made in favor of one of the other co-owners or of a stranger, the vendor, if he has not been summoned to attend, preserves his right to repurchase against the person in whose favor the adjudication has been made for the portion that he sold ; in the contrary case, he loses such right.

Art. 730.— Where partition has been made in kind and the vendor has been summoned to attend thereat, he cannot, whichever party may have applied for partition, set up any claim against the parts that have been allotted to the other owners ; he can only retake the share allotted to his purchaser; but without prejudice, however, to the respective rights of each party to have taken into account any payment made or received by the purchaser to equalize values on such partition. Where the vendor has not been summoned to the partition, he can at his option either ratify what has been done and exercise against his purchaser the above mentioned right, or reimburse the latter the price he has received from him and invoke against his co-owners a fresh partition.

Art. 731.— Where the co-owners of an undivided thing have by one and the same contract and for a single price sold it subject to redemption, the purchaser is not bound to submit to repurchase of a part. He can also object to redemption of the whole by one only of the vendors, unless such vendor is acting under authority of the others. The same applies where a sole vendor has died leaving several heirs. Where, on the other hand, the different co-owners have sold their shaves by separate contracts, each, if the case admits, can exercise his right of repurchase separately, but subject to the application of Arts. 728 and 730.

Art. 732.— Where several purchasers have, cither by a single contract or by distinct and separate contracts, acquired any property subject to a right of redemption, and the vendor before any partition has been made between them desires to exercise his right of redemption, he can exercise the same against each owner for his share, cither jointly or separately. Where partition has already taken place, the vendor cannot exercise his right of redemption against each, except for the share which has been allotted to him under the partition or under partition sale. The same rules apply, where a single purchaser has died leaving several heirs.

SUBSECTION 3. RESCISSION FOR INSUFFICIENCY OF CONSIDERATION.

Art. 733.— Where a sale of an immovable has been made for a price less than the half of its true value at the date of the contract, the vendor can demand rescission for insufficiency of consideration, and notwithstanding that in the contract itself such right may have been expressly waived, or the difference in value declared surrendered.

Art. 734.— Rescission must be applied for within two years from the day of sale. This time can neither be enlarged nor shortened by the contract of sale. Where option of repurchase has been stipulated for, both periods of time run concurrently during the continuance of the shorter.

Art. 735.— Proof of the value of the premises at the date of sale is furnished by the documents of title, by witnesses, or by experts. Each party has always the right to apply to the Court for leave to nominate an expert. In every case the Court must of its own motion appoint one. In other respects, the general rules laid down in the Code of Civil Procedure for reports of experts are to be applied.

Art. 736.— Rescission on ground of insufficiency of consideration cannot be resorted to as against sub-acquirers of real rights whose titles have been transcribed prior to the petition being publicly made known, in conformity with the first paragraph of Art. 372.

Art. 737.— Where a purchaser desires to avail himself of the power accorded to him by Art. 576 to make good the deficiency in the fair price, he owes interest thereon from the time of the making of the demand. If he prefers to return the thing, he recovers the price paid with interest from the time of demand being made, and he has to make restitution of all fruits collected by him alter such date. In this latter case, he is entitled to retain possession until reimbursement in full of the price and interest.

Art. 738.— The rules laid down by Arts. 728 to 732 for the divisible or indivisible exercise of the power of repurchase are to be applied to rescission for insufficiency of consideration.

Art. 739.— Rescission for insufficiency of consideration does not lie in the case of sales, whether voluntary or not, made at public auction, provided that the publicity and times prescribed for sales made under judicial order have been observed, and that no impediment has been placed in the way of free bidding.

Art. 740.— Sales of an aleatory character, on account of the nature of the right sold or of the price to be paid, arc not open to rescission for insufficiency of consideration.

SUBSECTION 4. RIGHT OF REHIBITORY ACTION FOR HIDDEN DEFECTS.

Art. 741.— Where a thing sold, whether movable or immovable, had at the time of sale vices or defects non-apparent, irremediable, and unknown to the purchaser, and if such defects render it unfit for the use for which it was intended, cither by its nature or the agreement of the parties, or so reduce such use that the purchaser would not have bought it had he been aware of them, he can demand the taking back or rehibition of it by the vendor. In such case he recovers the price he paid and the costs of the contract; the interest of his purchase money, however, up to the date of demand is set off against his enjoyment or use of the thing.

Art. 742.— Where the purchaser cannot prove that the hidden defects are sufficiently serious to justify a rehibitory action, or where he prefers to keep the thing, he can demand a reduction in the price for the loss in its utility that he has suffered.

Art. 743.— In either case, whether the purchaser obtains against the vendor rehibition of the thing or reduction of the price, he can recover in addition, if the vendor was aware of the defects in the thing, damages for any prejudice sustained or for any profit lost.

Art. 744.— A stipulation “without guaranty against hidden defects” does not free the vendor from liability for defects of which he was aware, and which he has fraudulently concealed.

Art. 745.— The existence of defects in the thing at the time of sale, of prejudice caused to the purchaser thereby, as well as of the knowledge that the purchaser or vendor had of such defects, is to be proved by the testimony of witnesses, by survey, or by any other legal evidence.

Art. 746.— A rehibitory action as well as actions for reduction of price and for damages must be brought within the following periods of time: Six months for immovables ; Three months for movables other than animals ; One month for these latter. The time commences to run from delivery. Nevertheless, such time is to be reduced by one half, from the date on which it is proved that the purchaser became aware of the defects. The action can. however, be entertained after the expiry of the time prescribed, where the purchaser proves that, owing to inevitable accident or irresistible force, the bidden defect has not been able to manifest itself within such time.

Art. 747.— The right of action for reduction of price on the ground of hidden defects is not lost to the purchaser by gratuitous alienation of the thing, nor even by an onerous alienation if, on account of such defects, the same has been made by him at a loss, or if he himself is sued by his assignee or is in danger of living so.

Art. 748.— Where the thing sold perishes through inevitable accident or irresistible force, cither entirely or to the extent of more than one half, a rehibitory action will no longer lie. Whatever may lie the extent of the partial loss, the right of action for reduction of the price, in proportion to what is left of the thing, remains. In every case the vendor remains liable for total or partial loss arising from the hidden defect itself.

Art. 749.— Forced sales made in due form do not give rise cither to a rehibitory action or to an action for reduction of price.

Art. 750.— Until the consequences of hidden defects in the cases of sales of particular animals, substances, or commoditics arc regulated by special laws, the dispositions here established arc to be applied to the sales of all objects without distinction.

APPENDIX. PARTITION BY SALE.

Art. 751.— Where grounds, exist for partition of an undivided thing and any one of the owners refuses a partition in kind, the same is effected either by private sale or by a sale by auction, called partition sale, of such thing, and the price obtained is distributed to those entitled according to the extent of each one's share.

Art. 752.— Where the parties concerned cannot agree among themselves either to sell privately to a third party or to one of themselves, or to sell by bidding among themselves, or if any of their number arc absent or without legal capacity, partition sale is to be held before the Court or before an official appointed by it for such purpose, attended with the same publicity as is required for other public sales and according to the forms determined by the Code of Civil Procedure. Each of the co-sellers has always the right to insist on the admission of strangers to the bidding, and this takes place, as of course, when any of them are absent or without legal capacity.

Art. 753.— Where the thing is acquired in whole by one of the co-owners, the public or private sale thereof is deemed as effecting partition between them and produces the consequences determined when treating of partition in the case of partnerships and successions respectively. Where adjudication after public sale, or where private sale, is made to a third person, the same produces between him and the former co-owners respectively the consequences of sale, as laid down in this Chapter.

CHAPTER XIII. BARTER.

Art. 754.— Barter is a contract by which one party transfers, or undertakes to transfer, to the other the right of ownership of a thing or any other right, which is considered as the equivalent of a thing or of a right that he acquires or has promised to him. Where the rights respectively assigned are on one side inferior in value to the other, the inequality is made up by a payment in money or otherwise. The contract is to be deemed a sale, if the payment in money exceeds the value of whatever is furnished together with it in exchange for what is received in return.

Art. 755.— The parties respectively guarantee each other from any disturbance or eviction in respect of the things or rights furnished or promised in exchange. Where one party lias not acquired the rights that he has been promised, be is entitled. at his choice, either to claim the equivalent in money, or to have the contract cancelled and take back what he has given, together with damages in either case, if grounds for such exist. Cancellation, however, cannot be exercised against third persons who have acquired rights over an immovable liable to be so taken back, it the transcription or entry of their title has taken place before the petition for cancellation has been made public, in conformity with the first paragraph of Art. 372.

Art. 756.— Subject to the following exceptions, the rules governing sales apply to barter: 1. Barter is allowed between husband and wife; without prejudice, however, to the rules prohibiting or restricting donations, where the inequality in value of the respective subject-matters furnished constitutes an indirect advantage; 2. Optional cancellation of a barter within a specified time, stipulated in the interest of one of the parties or of both, cannot be set up against third parties, except under similar conditions to which a promise of sale could be, in accordance with Art. 664: 3. A barter cannot be rescinded for insufficiency of consideration.

CHAPTER XIV. COMPROMISE.

Art. 757.— A compromise is a contract whereby the parties, by means of reciprocal concessions or sacrifices, settle a dispute already pending or anticipate a dispute which may arise. Compromises, subject to the following modifications, are in respect of their formation, validity, consequences, and proof governed by the general rules for agreements.

Art. 758.— The requisite conditions for the validity of compromises in which persons without legal capacity are interested arc laid down in Book I of this Code. Compromises in which the State, Fu or Ken, Gun or Ku, or public institutions arc interested are governed by the administrative laws.

Art. 759.— A compromise cannot be rescinded for mistake of law, unless such has been caused by the fraud of the other party.

Art. 760.— A compromise cannot be rescinded on the ground of its having been agreed to in consequence of forged documents, or of a void title or instrument, unless the forgery or the circumstance to which the law attaches nullity was not known to the party who might have taken exception thereto.

Art. 761.— A compromise made in consequence of one or several specified causes of dispute can also be rescinded or annulled on ground of mistake in fact, if it appears from newly discovered evidence of title, that one of the parties had no right whatever over the subject-matter or the subject-matters in dispute, or that the other party had an absolute and indisputable right thereto. The same applies where the dispute had been already settled by a final judgment or by a contract not open to attack, and such was not known to the party to whose interest it was to know the same. Where, however, a compromise has had for its aim the settlement or prevention of any disputes whatever that there might be between the parties in consequence of causes already existing, the discovery of decisive evidence of title in favor of one party docs not constitute a ground for rescission, unless such evidence has been wilfully kept back by the opposite party.

Art. 762.— A valid compromise, where the rights or advantages respectively acknowledged in favor of each of the parties were already at stake in an existing or anticipated dispute, produces between them the purely declaratory effect of a final judgment; in this case, such rights or advantages arc deemed as having been retained by virtue of causes already existing, unless the parties have intended to create a novation. Where, on the other hand, the rights or advantages respectively furnished or promised arc, in whole or in part, strange to the dispute, the compromise is subject, in respect of these, to the rules of onerous agreements creating, transferring, or extinguishing real or personal rights.

CHAPTER XV. SPECIAL PARTNERSHIPS.

SECTION I. NATURE AND FORMATION OF PARTNERSHIPS.

Art. 763.— A contract of partnership is a contract whereby two or more persons contribute or undertake to contribute property in common in order to derive therefrom gains which are to be divided between them.

Art. 764.— Partnerships are general or special. The rules relating to general partner-ships are laid down in Part II. Chapter II, of this Book. A special partnership is one in which each partner contributes, or promises to contribute, specified subjects cither for the employment thereof for their common benefit, or for the accomplishment of some specified enterprise, or the carrying on of some specified trade or calling.

Art. 765.— The contributions of the partners can consist of the right of ownership or of the right of enjoyment of movables or immovables, or of money, services or skill. They may be unequal and can differ in kind.

Art. 766.— Civil partnerships can constitute moral or juristic persons when such is the desire of the parties. In this case, they must take a partnership name, and the contract of partnership must be made known by extract in the forms prescribed by law for the making public of commercial partnerships. The mere fact of having given a partnership name to the partnership, or of having made public the partnership contract, is to be presumed to show on the part of the partners a desire to give to it a personality of its own.

Art. 767.— The general provisions governing agreements are also to be applied to contracts of partnership : in special, in all that concerns the consent and legal capacity of the parties, the subject-matter, the cause, and evidence. The special rules governing commercial partnerships are contained in the Commercial Code or in special laws.

Art. 768.— Partnerships whose object is not commercial can without ceasing to be civil receive the form of limited partnership, or joint stock companies with their capital divided in shares and with the limited liability that results therefrom according to the commercial laws.

SECTION II. RIGHTS AND OBLIGATIONS OF THE PARTNERS.

Art. 769.— The partnership commences from the date of the contract, unless it has been expressly or tacitly agreed that it should commence at some other time or that its commencement should be dependent on some condition. On the same date, but subject to a like reserve, each partner has to make his promised contribution ; in default of so doing, he owes, as of course, fruits and interest and all other damages (if any) arising from such delay, and notwithstanding that his contribution is to be made in money.

Art. 770.— A partner, who has promised to the partnership his skill or his services and fails to furnish the same, is liable to it, at the option of the other partners, cither for compensation for the damages that the partnership has sustained from the time that he failed to fulfil his obligation, or else for the handing over of the profits he has realized by employing elsewhere his time or skill.

Art. 771.— A partner who has undertaken to contribute to the partnership a specific object, movable or immovable, with the full right of ownership thereof, is guarantor to the partnership against eviction, want of extent or quantity, and hidden defects, as if he were vendor thereof. If he has only promised the partnership the right of enjoyment of a thing, he is bound by a guaranty similar to that of a lessor.

Art. 772.— Where the contract of partnership designates one or more administrators or managers from amongst the partners, each one must act within the limits of the powers conferred on him. Those whose powers have not been determined must limit themselves to doing, either conjointly or separately, ordinary acts of management. They can, however, but only jointly, enter into more important transactions, if the same come within the scope of the partnership; in case of disagreement, the disputed transaction should be kept in abeyance and the matter submitted to a meeting of all the partners for the majority to decide.

Art. 773.— Where the power of management has not by the contract of partnership been conferred on any one of the partners, and so long as the same has not been provided for by a unanimous vote, each partner has the power to do the acts mentioned in the preceding article, under the conditions therein contained.

Art. 774.— Partners appointed as managers by the contract of partnership cannot have their powers as such withdrawn during the continuance of the time fixed for their mandate, unless on some lawful ground or with the approval of all the partners including themselves. Those who have been appointed by subsequent agreement can have their authority revoked without their consent if done in a similar manner to that by which they received it.

Art. 775.— In whatever manner the managers, whether partners or not, have been appointed, if one or more of them dies, resigns, or has his authority revoked, and such event does not dissolve the partnership, his place is to be filled in accordance with the vote of the majority.

Art. 776.— All other steps that have to be taken to carry out the partnership articles are likewise to be taken upon an absolute majority of votes. If there be question of acting contrary to such articles or of doing anything not provided for thereby, a unanimous vote is necessary. Without prejudice, however, in any case to dispositions to a contrary effect in the said articles or in the law itself.

Art. 777.— Where a third party owes debts of a similar kind both to the partnership and to a partner with power of management, and he pays to such partner a sum of money or thing of value which does not suffice to extinguish both debts, the latter can only appropriate such payment to his own right of claim in proportion to its value as compared with that of the right of claim of the partnership ; any appropriation, however, made by the debtor must be observed. Nevertheless, where the debtor has appropriated the whole payment to the claim of the partner, without having a lawful interest in so doing, the partner is bound to hand over to the partnership a proportionate part of such payment. In the absence of any valid appropriation by the debtor or by the partner, the rules of legal appropriation, in conformity with Art. 493, arc to be applied.

Art. 778.— A partner, whether a manager or not, who has received from a debtor of the partnership a portion of any thing due to it, must in every case permit his co-partners to benefit thereby, notwithstanding that he may have given a receipt “for his share.”

Art. 779.— Every partner, whether a manager or not, is bound to make good any damage that the partnership has sustained through his fault or neglect. Profits or advantages that such partner may have obtained for the partnership in other transactions may be set off against such damage, unless the respective transactions are connected with each other.

Art. 780.— Partners, who manage because no managers have been named by the contract, are only responsible for their faults, where they have not brought to bear on the affairs of the partnership the same care that they exercise in their own affairs.

Art. 781.— Each partner is bound to contribute, in proportion to his rights, to necessary expenses and costs of maintenance incurred in respect of things belonging to the partnership, if there is no money of the partnership funds available for the purpose.

Art. 782.— On the other hand, every partner, whether a manager or not, can claim repayment from the partnership of monies that he has usefully disbursed on its account over and above his contribution, can require ratification of engagements entered into by him in good faith in its interest, and can demand compensation for any unavoidable damage his own property has sustained by reason of the partnership's affairs.

Art. 783.— Sums of money disbursed by a partner for the affairs of the partnership carry, as of course, interest in his favor from the date of their employment. On the other hand, every partner owes, as of course, to the partnership interest on sums of money drawn from the partnership funds for his private affairs ; without prejudice, in such case, to his liability to larger damages, if grounds exist.

Art. 784.— The partners, subject to the two exceptions mentioned in Art. 786, can. either by the contract of partnership or by a subsequent agreement, determine as they see fit their respective shares in the partnership property such as it may be at the dissolution of the partnership, increased by profits or gains realized, or reduced by losses experienced during the course of the partnership.

Art. 785.— The partners can also agree that the shares of one or more of their number shall not be the same in the profits and losses. If, however, the shares have been fixed in anticipation of profits only, the same arrangement is to be presumed as agreed upon for the losses. In every case profits for purposes of division are only to be considered as consisting of what remains of the partnership assets after deducting losses, and losses as consisting of what remains owing after exhausting all assets. The whole is to be finally calculated on dissolution of the partnership, notwithstanding that during its existence partial divisions of profits or losses may have been made.

Art. 786.— A clause conferring on one of the partners the whole of the partnership property, or the whole of the profits realized is void. The same is the case with any clause freeing a partner from all liability to contribute to the losses, except in the case of a partner who has only brought his skill into the partnership. Where such clauses have been inserted in the contract of partnership, they render the same void in its entirety; where they have been subsequently adopted, they leave the original contract in force, and the liquidation of the partnership takes place in conformity with Art. 789.

Art. 787.— Partners can agree by the contract of partnership or by a subsequent agreement that their respective shares shall be determined at the time of dissolution by one or more arbitrators, either partners or strangers, and cither then appointed by them or to be subsequently so appointed. An award made by arbitrators can only be attacked on the ground of inobservance of the forms or conditions which may have been imposed on them by the reference or for clear violation of principles of equity. A demand for the annulment of such award, made by a partner who alleges himself aggrieved thereby, cannot be entertained, if such partner has joined in its enforcement, or where three months have elapsed since such award was brought to his knowledge.

Art. 788.— Where the partners cannot agree among themselves or at least by a majority, as regards the appointment of arbitrators, in cases where the contract of partnership has provided for this mode of settling their shares, such appointment is to be made by the Court. The same applies, where arbitrators that have been named arc either not willing or not able to make such settlement, and the partners cannot agree among themselves as to substitutes.

Art. 789.— In the absence of a settlement of the shares, either by the partners themselves or by arbitrators, or where the arbitration award has been annulled, the partnership capital and all profits or losses arc to be divided amongst the partners in proportion to the value of their respective contributions. A partner who has only contributed his skill, without a value having been put on it, is to be placed on the same footing as the partner whose contribution is the smallest. A partner who has contributed his skill and other property as well takes and is liable for, in addition to the share mentioned in the preceding paragraph, a further share to be calculated according to the importance of such other property.

Art. 790.— Every member of a partnership can enter into partnership with a third person in respect to his share, and can pledge or assign the same ; such acts, however, cannot be set up against the partnership, unless the original contract of partnership has accorded to him such right, or except in the case of a company whose capital is divided into shares. Where, in the said two cases, the partnership or company has, with the view of extinguishing the same, reserved to itself a right of preemption over interests or over shares that the partners or shareholders might wish to assign, such clause is to be observed, and the partner or shareholder must constitute the partnership or company in arrear to exercise its right or to renounce it.

Art. 791.— Engagements, validly entered into by managers in the name of the partnership or for its affairs, are guaranteed by the partnership assets in preference to the personal creditors of each partner, where the partnership has been constituted a moral or juristic person. In the case of insufficiency of the partnership assets, or where the same are not forthcoming for the claimant creditors, all the partners arc to be held jointly and severally liable for the obligations of the partnership. The same applies, where the partnership is not a moral person. In both cases, the final settlement between the partners takes place according to the share of each in the assets and liabilities, in manner determined by Arts. 784 to 789.

SECTION III. DISSOLUTION OF PARTNERSHIPS.

Art. 792.— A partnership is dissolved as of course: 1. By expiration of the time for which it has been entered into, or by the happening of a resolutory condition to which it was subject; 2. By the accomplishment of the undertaking for which it was formed, or by the impossibility of its being accomplished ; 3. By the loss of all or of more than half of the subscribed partnership capital; 4. By impossibility on the part of one of the partners to continue his contribution of services, or of the right of enjoyment of a thing ; 5. By death, deprivation of the exercise of civil rights, declared bankruptcy, or notorious insolvency of any of the partners, without prejudice to what is said in Art. 795.

Art. 793.— A partnership can be dissolved ; 1. In every case by the unanimous desire of the partners ; 2. By the desire of any one of the partners, where the partnership has not any duration expressly or tacitly fixed, and where, moreover, the demand is not preferred in bad faith nor at an inconvenient time ; 3. By an action for cancellation grounded on non-performance of his obligations by one of the partners, or by a petition for dissolution based on lawful grounds, although the partnership may have a fixed term.

Art. 794.— The parties can before its expiration expressly or tacitly prolong the term of partnership. Tacit prolongation can also be made after the expiration of the time fixed and can result from the fact that operations have been continued without opposition on the part of any of the partners; in this case, the prolonged partnership can. in conformity with Art. 793(2), be dissolved upon the request of any partner.

Art. 795.— Dissolution for the causes mentioned in Art 792(5) does not take place where, the capital being divided into shares the assignment of which is permitted, one of these causes is met wit h in the person of one of the shareholders. It can also be agreed in other partnerships that these causes shall not operate dissolution of the partnership, and that it shall continue with the other partners after settling the share of the partner ceasing to be a member, or that the partnership shall continue with the heirs of a deceased partner, or with a partner who is duly represented, or who has become incapable, or insolvent.

SECTION IV LIQUIDATION OF PARTNERSHIPS AND DIVISION OF ASSETS.

Art. 796.— After dissolution of a partnership, its liquidation can be demanded by any of the partners or by those entitled under them. The liquidation must be preliminary to division, unless the majority of the partners desire priority for complete or partial division. Any creditor of the partnership can also object to any division taking place before liquidation.

Art. 797.— Liquidation includes : 1. The completion of current affairs ; 2. The payment of the debts of the partnership and the recovering of its claims against third parties ; 3. The settling of the private account of each partner with the partnership ; 4. The ascertaining of the share of each partner or his representatives in the assets to be divided or in the liabilities to be met.

Art. 798.— The dispositions of the contract of partnership with respect to the selection of a liquidator and the extent of his powers must be observed, unless obstacles thereto have arisen. In the absence of such dispositions, the liquidation is effected either by all the partners together, or by one or more of them who have been entrusted therewith by the others, or by a third person unanimously chosen by them. Where they cannot agree as to which course to follow, the liquidator is to be appointed by the Court.

Art. 799.— The liquidator must in every case dispose of things likely to deteriorate or perish rapidly. He can dispose of other movable things, if it be necessary to do so in order to pay debts that are due. With respect to immovables he cannot mortgage or dispose of them except by virtue of special authority from the partners. In this latter case, alienation is only to be made by public adjudication, unless he has been authorized to treat privately ; any decision must be taken by the vote of the majority. He can take proceedings in Court as plaintiff or defendant in the name of the partners. Compromises and references to arbitration that he has agreed to in respect of the debts or rights of claim of the partnership cannot be impeached except for concerted fraud between him and third persons.

Art. 800.— The general liquidation account is to be submitted to the approval of the partners. A majority of votes is sufficient for its approval. The vote may be given on the account taken as a whole or separately on certain parts of the account. Such acts as do not meet with acceptance and can be done over again are to be redone at the expense and under the control of the liquidator; if they cannot be done over again, the liquidator is liable for any prejudice caused by his fault, in conformity witfl the rules governing mandates. Any thing done by a liquidator, by virtue of the powers which have been entrusted to him or in conformity with the preceding article, are to be always upheld in favor of third persons who have acted in good faith.

Art. 801.— Where a civil association is formed by shares, the liquidation is carried out in conformity with the rules for commercial companies in shares.

Art. 802.— After the liquidation of the partnership, the division of the property remaining undivided can be demanded by any of the late partners or by persons claiming through them, except in the case where the parties may, in conformity with Art. 40 of this Code, have agreed subsequently to the dissolution to let the same continue in its undivided state.

Art. 803.— In the absence of agreement between the persons interested as to the dividing up of such property into lots, or as to the allotment thereof to each of them, the rules established on this point in this Code and in the Code of Civil Procedure in respect of partition of successions and of other property held in common are to be observed.

Art. 804.— The rights of each partner over the objects he receives from the partnership estate and which have fallen to him at the time of partition date back to the date of dissolution of the partnership, and those conferred by other partners in respect of such objects become cancelled.

Art. 805.— Those between whom partition takes place respectively guarantee each other, in proportion to their share and portion, against any disturbance or eviction they may experience in the rights which have been promised them by the partition. Where any one of them is insolvent, the share of indemnity for which he is liable is divided among the others, including also his guaranty.

Art. 806.— A partition, although made between persons of full age and notwithstanding it only has for its subject-matter movables of value, can be rescinded in favor of any person whose allotted share of the undivided property shows an insufficiency of more than a quarter of what ought to have come to him. The conditions laid down in Art. 734 and following articles for exercising the right of rescission of a sale on the ground of insufficiency of consideration arc to be observed in respect to rescission on the ground of insufficiency of a partnership partition.

CHAPTER XVI. ALEATORY CONTRACTS.

PRELIMINARY PROVISIONS.

Art. 807.— An aleatory contract is an agreement the consequences of which in respect of either benefits losses depend, for both parties or only for one, in whole or in part on some future and uncertain event.

Art. 808.— Contracts are aleatory by their nature or by intent of the parties. The following are aleatory by their nature : gaming and wagering, the creation of a life annuity or other right for life, inland and marine insurance, loans at maritime interest known as bottomry. Other contracts are aleatory by the will of the parties, when their existence or their results are subordinate to a casual condition, whether suspensive or resolutory.

Art. 809.— Marine insurance and bottomry arc governed by the maritime commercial laws.

SECTION I. GAMING AND WAGERING.

Art. 810.— No action can be brought to enforce the performance of a gaming engagement, unless the game consists of some physical exercise of a kind to develop the courage, strength, or skill of the players. An action based on a wager can likewise only be brought by a person taking part in such exercise, or, in the case of the success of an enterprise concerning agriculture, industries, or commerce, by persons wagering who take a direct part therein. If the sum of money or thing of value promised in such gaming or wagering appears under the circumstances excessive, the Courts cannot reduce the same, but must reject the claim for the whole.

Art. 811.— In other cases gaming and wagering create no civil or natural obligation, and any acknowledgment of the debt, novation, or suretyship, which may have arisen therefrom is void and without effect. Repetition, however, in respect of what has been voluntarily paid by a person with legal capacity by reason of such engagements is not to be allowed, provided that there has been neither fraud nor deceit on the part of the winner.

Art. 812.— Unauthorized lotteries are to be treated on the same footing as gaming and wagering on which no action lies. The same applies also to time speculations in public securities or merchandise, where the defendant proves that from the commencement the parties had not the intention to effect delivery of and to pay for the promised quantities or things, but only to respectively account for the difference in rise or fall of the quoted rates.

Art. 813.— Where, in cases coming within the two preceding articles, a plea of nullity is not set up by the defendant, the same can be added by the Court of its own motion, when it appears either from the engagement or from the petition that the cause of the debt was a game, a lottery, or a wager on differences in the market rate.

SECTION II. LIFE ANNUITIES. SUBSECTION 1. CREATION OF LIFE ANNUITIES.

Art. 814.— A life annuity can be created onerously in return for the alienation of movables or immovables, or as the price of services rendered or to be rendered. It can also be created gratuitously by donation or by will. In this latter case, it is subject to the special rules governing gratuitous acts, with respect to the form of the gratuity, the legal capacity to give and receive, and the extent of the property that may be disposed of.

Art. 815.— A life annuity may be promised in favor of a person other than the person furnishing the counter-consideration. In such case, it must as between promisee and promisor follow the rules of onerous contracts, and as between promisee and beneficiary those of donations; it is not, however, subject to the requisite formalities of donations. A life annuity can also be reserved over property that is alienated either onerously or gratuitously.

Art. 816.— It may depend either on the life of the promisee or of the promisor, or even on that of a third party. In this latter case, the consent of the third party is necessary in order to form the contract, where the same is onerous; but payments made before such consent is given cannot be recovered.

Art. 817.— It can he made in favor of several beneficiaries jointly or successively. In such cases the disposition of Art. 103 in the matter of usufruct is to be applied.

Art. 818.— A contract of life annuity created onerously is void, if the person for whose life the annuity was created was dead at the time of making the agreement, although both parties may have been ignorant thereof. It is cancelled as of course, if such person dies within a period of sixty days of a disease from which he was then already suffering.

Art. 819.— A life annuity created gratuitously can be declared by the person creating the same to be non-assignable and not liable to attachment. Such condition cannot be set up against third persons, unless it is contained in the instrument itself that creates the annuityWhere a life annuity has been established gratuitously by way of a pension for maintenance, it is, as of course, non-assignable, and not liable to attachment, although the instrument of donation or the will may not have so stated. The dispositions of this article do not apply to a life annuity reserved in favor of the donor over the property donated.

Art. 820.— The non-assignability and non-liability to attachment of life annuities take place accumulatively, although one only of such prohibitions may have been stipulated. They never apply to payments that have fallen due.

SUBSECTION 2. THE EFFECT OF CONTRACTS CREATING LIFE ANNUITIES.

Art. 821.— The debtor must make the periodical payments of the annuity during the whole of the life of the person on whom it depends, and is not at liberty, in the absence of any agreement to the contrary, to avail himself of redemption.

Art. 822.— The periodical payments accrue to the creditor day by day, notwithstanding that the same are only made month by month or even at longer periods. Nevertheless, if they are payable in advance, the payment for a period begun is due in full.

Art. 823.— Default in making periodical payments docs not empower the creditor to demand cancellation of the contract, unless he has reserved to himself such right; he can only proceed by attachment and have a sufficient part of the property of the debtor sold to secure that the periodical payments will be met by means of the capital so derived, subject, however, to concurrence with other creditors, if grounds therefor exist. The same course is to be followed where the annuity has been created gratuitously or reserved over property donated or left by will.

Art. 824.— The debtor of an annuity can refuse to make any periodical payment, unless proof be furnished him that the person on whose life the annuity depends was alive on the day the payment fell due. A life certificate is to be delivered by the administrative official of the locality, or by a notary practising in the district, where such person is for the time being residing.

SUBSECTION 3. EXTINCTION OF LIFE ANNUITIES.

Art. 825.— Where the debtor of a life annuity created onerously fails to furnish the promised securities for the keeping up of the periodical payments, or where he reduces those already furnished, the creditor can claim cancellation of the contract, without, however, being bound to return any part of payments already accrued due. The same right belongs to the person entitled to a life annuity reserved over property donated or left by will. Cancellation is not decreed if the person on whose life the annuity depends happens to die before final judgment.

Art. 826.— The grounds for rescission or nullity or for revocation, sanctioned generally by law, are applicable to life annuities. A life annuity can also be extinguished by redemption where agreed on, by novation, by conventional release, by confusion, or by prescription. A life annuity is, however, not subject to prescription, where it is by virtue of law or of the will of man, in conformity with Arts. 819 and 820, non-assignable or not liable to attachment. In every case the periodical payments become separately prescribed by a lapse of five years from the time they fall due.

Art. 827.— A life annuity becomes extinguished by the death of the person on whose life it has been created, but without prejudice to what is said in Art. 818. In the case, however, of an annuity that has been created onerously, or has been charged on a donation or legacy, and of the death of the person on whose life the annuity depends by some unlawful means attributable to the debtor, the contract or gratuity is to be cancelled and the debtor is to return whatever he may have acquired, without recovering any of the periodical payments made. Where, in the case just mentioned of the death of the person on whose life the annuity depends through the fault of the debtor, the annuity had been directly donated or left by will, the making of the periodical payments is to be continued in favor of the persons interested for such time as the Court may fix as being the probable time for which the life of such person would have lasted.

SECTION III. INLAND INSURANCE. SUBSECTION 1. GENERAL PROVISIONS.

Art. 828.— Inland insurance can be either against fire, inundations, losses of crops or animals, or against any other damage to property, resulting from risks specified in the contract other than risks of navigation. Insurance called “life,” that is against death, is also to be treated as an inland insurance irrespective of what may be the anticipated cause of death or the time of its occurrence. Insurance against personal accidents in the exercise of dangerous trades or callings is governed by special laws and by the general principles of this Section.

Art. 829.— Inland insurance can be mutual or for a premium.

Art. 830.— Mutual insurance takes place as the consequence of a civil association between persons who are respectively insurers and insured to each other, and by means of united subscriptions and a common fund from which is to be made good, in proportion to the contribution of each, the damage caused by the risks specified.

Art. 831.— An insurance for a premium is effected by means of a fixed sum or premium which the insured pays or undertakes to pay to the insurer, as an equivalent of and in consequence of the length of the risk which the latter takes upon himself.

Art. 832.— Associations formed for insurance in return for premiums are deemed to be commercial; the individual agreements made with the insured are purely civil, notwithstanding that the insured happens to be a trader or engaged in manufacture and that the insurance relates to objects connected with his trade or industry.

Art. 833.— Civil associations for mutual insurance and commercial associations for insurance for premiums cannot de validly formed except with administrative approval.

SUBSECTION 2. INSURANCE AGAINST FIRE AND OTHER DAMAGE TO PROPERTY.

Art. 834.— Objects can only be insured against fire and other accidental damage by persons who have an interest in their preservation. Nevertheless, where the contract of insurance sets forth in this respect a position that is falsely assumed by the insured, he is to be allowed to avail himself of the nullity of the insurance caused thereby in order to obtain the return of premiums or joint subscriptions already paid.

Art. 835.— An insurance ceases to run, as of course, so soon as the insured himself ceases to have any interest in the preservation of its subject-matter. Nevertheless, in case of alienation of the thing insured, the rights of the insured, corresponding to the premiums or joint subscriptions already paid, pass to the acquirer, in the absence of any stipulation to the contrary ; but the insurance ceases to run for the future, unless the insured has made such acquirer take his place and stead without prejudice to the interests of the insurer or to his right to damages.

Art. 836.— An insurance is validly contracted where entered into by persons who have only the power to manage their own property, and by the conventional, legal, or judicial mandatories of persons having an insurable interest. An insurance can also be made by a person voluntarily managing the affairs of another, where he contracts in the name and for account of the person interested.

Art. 837.— Subject to the conditions laid down in Art. 941, an insurance made by a bare owner benefits the usufructuary, and an insurance made by a usufructuary benefits the bare owner. If, however, the usufructuary has insured buildings without specifying whether he has done so on his own account or on account of the bare owner, he is to be presumed to have done so in order to in the first place protect himself as against the latter from his liability in case of fire, as established in Art. 88.

Art. 838.— An insurance of leased buildings made by the tenant is likewise to be presumed as made so as to in the first place cover himself against his liability towards his landlord, in manner established by Art. 152. It docs not extend to the right of recourse of neighbours to whom he has communicated a fire or to any loss he sustains through cessation of the lease in consequence of fire, unless he has so stipulated in the insurance; in default of any such stipulation the insurance benefits the landlord.

Art. 839.— An insurance of mortgaged buildings made by the owner benefits, as of course, the creditors in their order of preference. It is the same in the case of an insurance made by a mortgage creditor, whatever may be his rank as such, or even by an unsecured creditor; without prejudice, however, to deduction being in the first place made of premiums or subscriptions in favour of the person who has taken out the insurance.

Art. 840.— An insurance taken out by a person, who has a right subject to a sus-pensive or resolutory condition, benefits such person if the suspensive condition happens, or if the resolutory condition does not come into effect. In the contrary case, it benefits the person who has the opposite right, save reimbursement as mentioned in the preceding article of premiums or subscriptions.

Art. 841.— An insurance is void when it has for its subject-matter a thing which at the time of the agreement had already perished, although the insured was ignorant thereof. Where the thing had only partially perished, the insurance is still void if such fact was unknown to both the parties or to one of them. An insurance is likewise void, where it has for subject-matter future gains other than natural or civil fruits of property of the insured.

Art. 842.— An insurance can never become a source of profit to the insured ; in particular, objects cannot be insured for a sum in excess of their true value at the time of the agreement; without prejudice, however, to the insurance of the increased value that a thing may acquire. Where a thing has not originally been insured for its full actual value, it can subsequently be insured for the balance either with the same insurer or with another.

Art. 843.— In any case in which there has been no such supplementary insurance, the insured is to be deemed to lie his own insurer for the value not insured, and in case of partial loss he only receives a part of the indemnity in the proportion that the insured value bears to the whole, the other part of the risk being borne by himself.

Art. 844.— The insured cannot validly insure with a second insurer a thing already insured for the whole or part of its value, unless he first gives notice to the latter of the prior insurance. Nullity of the second insurance is, however, saved, if the first is annulled in consequence of the following article or on any other grounds.

Art. 845.— The insured has also to inform the original insurer of the new insurance that he proposes to take out in respect of the same thing. In default of his so doing, he is, by signature of the second insurance, deprived of the benefit of the original without any right to recover premiums or subscriptions already paid, even although paid in advance, and without prejudice, if grounds exist, to more extensive damages. Where such insurances have been taken out on the same day, without such information having been respectively duly given, they are in like manner void without any right to recover what has been paid. Where information has been duly given, the first insurer can, at his choice, continue his insurance or cancel it for the future, returning in this latter case the half of the premiums or subscriptions received in respect of the time still to run.

Art. 846.— Where there are several successive insurances validly made by different insurers in respect of the same subject-matter, and in respect of the same description of risk, the subsequent insurers are, to the extent of the value already Covered by insurance, to lx: considered as only intervening as guarantors of the former ones : for the balance of the value, they are to be considered as ordinary insurers. If such different insurances are of equal date, the insurers are liable for the indemnity in proportion to the sum for which each has insured.

Art. 847.— The preceding dispositions do not in any way prevent an insurer from being able, in his turn, to have the same thing reinsured by another insurer against all or part of the risk that he has himself taken. In this case, the conditions of, the two insurances are independent of each other; nevertheless, the indemnity stipulated to be paid by the second insurer cannot be greater than that which the first has himself promised to pay.

Art. 848.— Apart from those cases, in which the liability of the insurer is formally excluded by agreement, the insurer is not answerable, even by reason of an express clause, for disasters caused : 1. By acts of the insured or persons for whom he is responsible, when such acts are forbidden by agreement, by law, or by police regulations, or when the limits, conditions, or precautions to which such acts have been subjected have not been observed ; 2. By acts of the same persons, which, although not forbidden, would manifestly, by their nature, or by the circumstances under which they have been performed, produce the disaster forming the subject-matter of insurance.

Art. 849.— In an insurance against fire, the insurer is not, apart from a formal engagement on his part, liable in respect of fires arising from foreign or civil war, sedition or riots, volcanic eruptions or earthquakes. The insurance, notwithstanding any stipulation to the contrary, does not cover spontaneous combustion of hay or crops prematurely stored or ricked.

Art. 850.— The insurer is liable in respect of buildings insured, although not burnt, where they have been pulled down to stop the spreading of fire, provided that such pulling down has been considered necessary by the local authorities or by persons properly directing the arrangements.

Art. 851.— The insured must, at the time of applying for insurance, state as accurately as possibly such circumstances as may have a bearing on the extent of the risk to which the insurer is to be subjected. Any silence or inaccuracy in this respect, whether committed by mistake or in bad faith, and which the insurer has dis-covered before the happening of the disaster, gives rise, according to the circumstances and the gravity of the case, either to nullity of the insurance without return of premiums already paid or due, or the raising of the amount of such premiums for the past as well as for the future. Where the inaccuracy has not been discovered until after the disaster, and the risks of loss that were unknown may have had an influence on the same, the insurer is either wholly or partially released from payment of the indemnity. If such risks have had nothing to do with the disaster, the indemnity is to be reduced by the increased premium which the insured should have paid.

Art. 852.— Whilst an insurance is running, the insured cannot, except under the same penalty, make in the things Insured, or to the condition in which they are, any change which may increase the risks, unless be receives permission from the insurer to make such change. In the case of movable objects insured against fire, their removal without permission from the premises where they were at the time of insurance for any other reason than that of salvage deprives the insured from all right to indemnity in case of accident. The proof that changes have been made in the conditions of the risk rests with the insurer.

Art. 853.— Where an insurance in return for premium is made for several years, the premiums arc to be demanded at the domicile of the insured, unless mention be made in the policy of insurance or some subsequent document that they are to be paid at the domicile of the insurer or at some other place. Where premiuns have to be so demanded, the insured cannot forfeit his right for default of payment until after he has been duly constituted in arrear. Where, however, the premium has to be paid as above mentioned, the insured in default of payment at due date forfeits, as of course, the benefit of the insurance, unless there be a condition to the contrary in the policy. In both cases, the insured is no longer liable to forfeiture if the insurer has received the premium, although paid late, and if meanwhile no accident has happened. Where the premium has to be demanded, the insured may always make payment thereof at the domicile of the insurer before it falls due, and even after wards so long as forfeiture has not been incurred. In the case of mutual insurances forfeiture is governed by the articles of association, and, in default of their providing therefor, by the general law governing money obligations.

Art. 854.— The insured must, in the case of disaster being imminent or of its occurrence having already commenced, do himself or cause to be done by others every thing possible to prevent or diminish the flamage covered by the insurance : he is, nevertheless, entitled to obtain reimbursement in manner mentioned in Arts. 856 and 859.

Art. 855.— In the case of the happening of a disaster covered by the insurance, the insured must inform the insurer thereof with the least possible delay, pointing out its apparent or probable cause and the extent of damage so far as known and in so far as the same concerns him. Such information can always be given in the first place to the local authorities, and must be given to it first if the policy so requires.

Art. 856.— Where the value of the object insured or the amount of the eventual indemnity have not been specified in the policy itself or by subsequent agreement, the insurer, in the case of the contemplated disaster happening, must pay to the insured full indemnity for all material damage which is proven by him to have immediately and directly resulted from such disaster, as well as all expenses proved to have been lawfully incurred, either to prevent or to stop the same, or to save the objects insured.

Art. 857.— Where the objects have been valued, the insurer in the case of total loss is not liable beyond the amount of the valuation, notwithstanding that such objects may have increased in value. If they have decreased in value, the insurer is only liable for their value at the time of the happening of the disaster. Proof of decrease in value rests with the insurer.

Art. 858.— In the case of partial loss, the insurer is only liable for a proportionate part cither of the stipulated indemnity or of the actual value, according to the distinction above made. Where the insured is as to a part his own insurer, as mentioned in Art. 843, he has to bear a like share of the risk. In the case, however, of an insurance by the tenant of a house to protect himself against the right of recourse of the owner or neighbours, the insured only bears the risk thereof in so far as the same may exceed the amount of the promised indemnity.

Art. 859.— Where, amongst movable objects insured, some are saved in their entirety, the insurer can, at his option, either retain them and pay the indemnity in full as if they had totally perished, or deduct their estimated value from the indemnity and surrender them to the insured ; he must, however keep or have sold e for his account objects that have been damaged and pay for their integral value. In the case of buildings, the insurer may always deduct the value of any building which remains intact; in respect of those which have been only damage 1 by fire, the insurer has the option of cither repairing them at his cost, or of (raying their value and taking away the materials. In either case, the costs of salvage of the above mentioned objects have to be borne by the insurer.

Art. 860.— An insurance of all movables furnishing a house does not include, unless there be an agreement to the contrary, ready-money, jewelry, or documents of title to rights of claim or ownership. It docs not either cover manuscripts and other objects which have no appreciable marketable value.

Art. 861.— An insurer who has on the happening of a disaster paid the indemnity is, as of course, subrogated to the rights and rights of action of the insured against tenants, neighbours, and other persons who may be answerable for such disaster.

Art. 862.— An insurance ceases to run for the future, where the objects insured have totally perished or have perished to more than a half of their actual value, cither in consequence of a risk provided against or from some other fortuitous or irresistible cause, and notwithstanding that they may have been restored to their original condition.

SUBSECTION 3. LIFE INSURANCE OR INSURANCE AGAINST DEATH.

Art. 863.— Every person can, by the payment of one single amount or of annual premiums, insure for the benefit of his heirs or other persons, in anticipation of and to take effect at the time of his death, a sum of money or an annuity in perpetuity or for life, which is considered as an indemnity for the loss they will sustain by such death. An insurance made for the benefit of a person who is not an heir of the insured, and who does not furnish him any equivalent value, is, except in so far as regards form, to be treated as a donation on the part of the deceased.

Art. 864.— It is also permissible in anticipation of the death of a third person to stipulate for an indemnity for oneself or for another. In either case, such stipulation is void if the beneficiary has not an appreciable pecuniary interest in the life of the person insured, and if such person was not a party to the contract or has not separately in writing given his consent thereto.

Art. 865.— The insured can always assign his right to the indemnity stipulated for by him, where no beneficiary has been specified. A beneficiary other than the insured car only assign his right to the indemnity with the consent of the insured, and upon it being proved that the assignee has an appreciable interest in the insured's life.

Art. 866.— The insured, or any one contracting on the condition of the insured's death, must inform the insurer of all circumstances of which he was aware that may have an influence in the appreciation of the risk. In the absence of such information, and although there may have been no fraud, the insurer, according to the gravity of the case, and in conformity with Art. 857. can demand either annulment of the insurance, or an increase in the premium, or a reduction in the indemnity.

Art. 867.— Where, subsequently to the contract, the insured enters, cither voluntarily or under compulsion of law, into military or naval active service, or goes upon a long voyage, the insurer can demand an extra premium, or cancellation of the insurance subject to payment of an indemnity proportionate to the time that the insurance has already lasted. Cancellation takes place, as of course, where, such extra premium not having been paid, the insured dies from the direct consequences of such military or naval service or travelling. For the purposes of applying this article long voyages arc to be considered as voyages by sea other than those from port to port in Japan.

Art. 868.— Subject to the conditions contained in Art. 853, default in payment of the annual premium entails cancellation of the insurance. Where, however, the premium has already been paid once or oftener, the insurer must pay an indemnity proportionate to such payments.

Art. 869.— The insurer is freed from any indemnity, if the person on whose death the insurance bears dies from the direct consequences of a duel, or of an attempt on his own life. Where death results from a capital sentence, the insurer must pay to those claiming under the assured an indemnity proportionate to the premiums paid.

Art. 870.— Arts. 832, 833, 844, 845, 847, 855 and 861, arc applicable to insurances against death. Where, however, the insured has in the cases mentioned in Arts. 844 and 845 forfeited the benefits of the contract, an indemnity proportionate to the premiums already received is to be paid.

Art. 871.— In cases in which a proportionate indemnity is payable and no basis for its calculation has been specified in the policy of insurance, its amount must be settled by the Court, having regard to the premiums received, the age of the insured, and any other facts which might have an influence on the length of his life.

Art. 872.— Tontines, and other mutual associations for life insurance or insurance against death, duly sanctioned in accordance with Art. 833, arc governed by the preceding general principles, in so far as their individual nature and particular regulations are not opposed thereto.

CHAPTER XVII. LOANS FOR CONSUMPTION AND ANNUITIES IN PERPETUITY.

SECTION I. LOANS FOR CONSUMPTION.

Art. 873.— A loan for consumption is a contract by which one party transfers to the other the right of ownership of fungible things on condition that the latter will after a certain time return to him similar things of like quantity and quality.

Art. 874.— Where the time for repayment has not been fixed by the parties, it is to be determined by the Court according to their probable intention and the circumstances of the case. In the absence of any other place being named, repayment is due at the domicile of the lender, if the loan has been made without interest; in the contrary case, it is due at the domicile of the borrower

Art. 875.— Where, in consequence of inevitable accident or irresistible force, the return of the things loaned has become impossible, the borrower is liable for their estimated value, calculated on that at the time and place of making the loan.

Art. 876.— A loan of things that do not belong to the lender is void and gives rise to guaranty if made with interest, and if the borrower has acted in good faith. It only becomes valid in the following cases: 1. Where the borrower has in good faith consumed the things loaned ; 2. Where he has by prescription procured the rejection of the true owner's right to revendication ; 3. Where the true owner has ratified the loan.

Art. 877.— If the things loaned had defects that were not apparent, that were unknown to the borrower, but known to the lender, and were of a nature to cause injury to persons or property, and if such defects have in fact been prejudicial to the borrower, the lender is not answer able therefor if the loan was gratuitous, unless there was on his part fraud or intention to do harm. If the loan bears interest, the lender is responsible even lor hidden defects of which he was unaware, but which he might have known. The dispositions of Arts 741 to 748 with respect to rehibitory actions in case of sale are, in so far as they are applicable. to be also applied to loans.

Art. 878.— Arts. 484 to 487 are applicable to a loan made in money in specie or in paper money having forced currency. The lender, however, can only stipulate for repayment of a named value in gold or in silver, or in money of one of these descriptions as permitted by Art. 486, in so far as he has in reality lent the same value, cither in specie of the same kind, or in its equivalent in another money or in paper money.

Art. 879.— Where a loan has been made in bullion, the borrower must return bullion of like kind, weight and quality, as in the case of any other merchandise.

Art. 880.— The borrower of sums of money, of commodities, or of merchandise can undertake to pay under the name of “interest” as the price of the service rendered, and in addition to what is loaned, a certain sum of money or things of value proportionate thereto.

Art. 881.— Interest cannot be claimed from the borrower unless it has been promised. Where it has been agreed that the borrower is to pay interest without the amount thereof being fixed, it is to be paid at the legal rate. The borrower cannot reclaim, nor can he deduct from the principal, interest that he has paid within the limits allowed by law, but which he was under no obligation to pay.

Art. 882.— Conventional interest can only exceed legal interest in those cases in which it is not prohibited by law. Where it has ostensibly been fixed at a higher rate than that allowed by law, it is to be reduced to such rate, and whatever has been paid over and above the same may be deducted from the principal or may be reclaimed. Such illegal interest is, however, in no part due, and, if paid, can be reclaimed for the whole amount, where the creditor has concealed its existence in whole or in part by procuring the acknowledgment of a principal larger than that actually loaned, or in any other manner.

Art. 883.— Where the lender receives back the whole or part of the principal due without reservation as to past interest he is presumed, until proof to the contrary, to have received it or to have surrendered his claim to it.

Art. 884.— Where a loan for interest has been made for a time of more than ten years, the borrower, notwithstanding any condition to the contrary, has always the privilege of repaying the same at the expiration of ten years. Such repayment, however, cannot be made where the periodical payments comprise in addition to interest a gradual paying off of the principal.

Art. 885.— The dispositions of Arts. 881 to 884 are applicable to every obligation in sums of money or things of quantity other than that arising from loan, and to legal as well as to conventional interest.

SECTION II. ANNUITIES IN PERPETUITY.

Art. 886.— A lender for interest can deprive himself of all right to at any time demand return of the loan ; in this case the contract takes the name of “creation of an annuity in perpetuity.” Such deprivation must be formal or must clearly result from the circumstances.

Art. 887.— A person borrowing subject to the condition of an annuity in perpetuity can at any time, notwithstanding any agreement to the contrary, repay the principal received. Nevertheless, he can bind himself not to make such repayment before a certain time not exceeding ten years. Such undertaking can at any time he renewed, provided it never exceeds ten years ; when it does so, it is to be reduced to that period. Repayment, in the absence of any agreement to the contrary, must be integral. The debtor must give the creditor six months previous notice of his intention to repay, unless some other time has been agreed upon by the parties. In default of repayment at the time he has fixed the debtor is liable for damages ; but he cannot be forced to repay, unless there has been novation.

Art. 888.— The debtor can be forced to reimburse the principal in the three first cases in which Art. 425 declares that every debtor forfeits the benefit of the legal term, and also if he fails to make the periodical payments for two consecutive years after he has been duly constituted in arrear; without prejudice, however, in this latter case to the right of the Courts to grant him, in conformity with Art. 428, a time of grace and leave to pay by instalments.

Art. 889.— The provisions of the two preceding articles are applicable to an annuity in perpetuity created as the price for or as a condition of the alienation of an immovable, and also to an annuity in perpetuity created gratuitously. In both cases, reimbursement consists of the principal as valued by the parties, or, in the absence of any such valuation, of such principal as would produce according to the legal rate of interest the periodical annual payments. If such payments consist of commodities, reimbursement of the principal, in the absence of special agreement, is to be made by taking for basis as interest the average price of such commodities for the last ten years.

CHAPTER XVIII. LOANS FOR USE.

SECTION I. THE NATURE OF A LOAN FOR USE.

Art. 890.— A loan for use or accommodation is a contract by which one party hands over to the other a movable or immovable thing for the purpose of his mak ing use thereof, and on condition that the identical thing itself is to be returned after the time expressly or impliedly fixed. This loan is essentially gratuitous.

Art. 891.— The borrower does not acquire any real right of use but only a personal right against the lender and his heirs. The right of the borrower does not pass to his heirs, unless they can prove that the intention of the parties has been different; without prejudice, however, to the possibility of the heirs being allowed by the Court a reasonable time in order to otherwise obtain the use of a like thing.

SECTION II. OBLIGATIONS THAT ARISE FROM THE LOAN AND IN CONSEQUENCE THEREOF.

Art. 892.— The borrower must only use the thing lent fot the purpose for which it is by its nature or by agreement intended, and only during the time for which it has been lent to him. He is responsible for loss or deterioration resulting from employing it otherwise or for making too long use of it, and even for loss from inevitable accident or irresistible force which may have happened at the time of such employment or use.

Art. 893.— The borrower is also responsible for loss resulting from inevitable accident or irresistible force, if he could have prevented the thing borrowed from incurring it by using a thing of his own, or where, in case of a common danger both to his own thing and to the thing lent him, he has preferred to save his own.

Art. 894.— The borrower has to pay all ordinary expenses of keeping the thing lent in good order without any right to repayment by the lender.

Art. 895.— The borrower must return the thing lent at the time agreed on, or, even before such time, so soon as the authorized use thereof is at an end or the lender finds that he himself has urgent and unexpected need of it. Where no time has been agreed on and its use admits of being continued ; the Court, upon the application of the lender, will fix a reasonable time for its return.

Art. 896.— Restitution must be made to the lender or his representative, notwithstanding that the borrower may be aware that the thing belongs to a third person, unless opposition to its restitution has been lodged by such third person in due and proper form. This latter case excepted, restitution must be made at the domicile of the lender or at that of his representative.

Art. 897.— Where several persons have borrowed a thing jointly to use it cither simultaneously or in turn, each of them is jointly and severally bound with the others by the obligations above mentioned.

Art. 898.— The lender is bound to reimburse the borrower all expenses that are necessary and urgent and incurred by him in the preservation of the thing lent.

Art. 899.— He is also bound to indemnify the borrower for any damage which the thing lent has caused him in consequence of its defects, where such defects being non-apparent but known to him were unknown to the borrower.

Art. 900.— The borrower can exercise his right of retention over the thing lent until reimbursement of what is due to him by virtue of the preceding articles.

CHAPTER XIX DEPOSIT AND SEQUESTRATION.

SECTION I. DEPOSIT PROPERLY SO CALLED.

Art. 901.— Deposit properly so called is a contract by which one person hands over a movable thing to another to be kept by the latter, who is bound to return identically the same thing to the former on demand. Deposit is essentially gratuitous. It is either purely voluntary or necessary.

SUBSECTION 1. VOLUNTARY DEPOSIT.

Art. 902.— A voluntary deposit is that which takes place under circumstances which allow the depositor to freely chose the time and place of deposit as well as the individual depositary.

Art. 903.— A deposit can be made not only by the owner, but also by any person who has an interest in the keeping and preservation of the thing, or by their mandatories. It can also be made by the legal representatives of persons without legal capacity.

Art. 904.— A deposit can only be received by persons who have full capacity to contract. Nevertheless, persons without capacity are civilly hound to return the things deposited that are still in their hands, or whatever they have become enriched by in consequence of the deposit; without prejudice to criminal proceedings, if grounds for such exist, in case of breach of trust.

Art. 905.— The depositary must devote the same care to the safe keeping and preservation of the thing deposited as he exercises in respect of his own property. Nevertheless, he is bound to exercise the care of a good administrator, if he has proposed himself as recipient of the deposit, or if the deposit has been made solely in his interests and to enable him to make use of the thing in case of need.

Art. 906.— In the latter case provided for by the preceding article, Art. 893 is applicable to the depositary if he has made use of the thing. In every other case, where the thing deposited and the thing of the depositary happen to be both exposed to a common danger and the depositary can only save one, he must save that of the depositary if it is of considerably larger value; he is, however, to be indemnified for the value of his own.

Art. 907.— A depositary, who has been constituted in arrear is, in conformity with general principles, liable for loss through inevitable accident or irresistible force.

Art. 908.— A depositary must not endeavour to ascertain the nature of the things deposited, where this has been concealed from him, nor should he in any case disclose it to others ; if he does so he is liable for damages, if any are sustained in consequence.

Art. 909.— He must not make use of the things deposited, nor consume the fruits thereof, unless he has the express or implied permission of the depositary to do so. Such permission docs not of itself give to the deposit the character of a loan for use.

Art. 910.— He must return the identical thing deposited with the fruits and products Collected by him in respect thereof, or their value if he has had to convert them into money; without prejudice, however, to the case mentioned in the preceding article. If he has received any indemnity or acquired any right or gain by reason of the thing, he must make over the same to the depositor If he has wilfully consumed, disposed of. or embezzled the thing deposited, he is, as of course, and without being constituted in arrear, liable for all damages; without prejudice to any public action for breach of trust.

Art. 911.— Where the heir of the depositary, being unaware of the deposit, has consumed or disposed of the thing deposited, he is liable to the extent of the benefit he has thus obtained. The same provision is to be applied to the depositary if, either from forgetfulness or mistake he has disposed of the thing believing it to be his own.

Art. 912.— Restitution of the deposit must only be made to the depositor or to his heir or their legal or conventional representative.

Art. 913.— In the absence of a place having been agreed upon for restitution, it is to be made at the place where the thing deposited happens to be and although it may whilst in deposit have been removed by the depositary, provided that the same was done without fraudulent intent.

Art. 914.— The obligation on the part of the depositary to return the thing deposited, whenever requested to do so by the depositor, ceases to exist in the following cases: 1. If he can prove that the thing belongs to him; 2. If he is in a position to avail himself, in conformity with the following article, of the right of retention ; 3. If an attachment, or an opposition to its return, has been notified to him in due form; 4. If he has discovered that the thing lias been stolen and knows the owner of it; in this case he must inform the latter of the fact of deposit with a summons to claim the thing as against the depositor within a specified and reasonable time, and if such time expires without the owner coming forward, he must restore it to the depositor.

Art. 915.— The depositor must compensate the depositary for all necessary expenses incurred in preserving the thing and for any damage which it may have caused him. Until payment in full of such compensation, the depositary can exercise a light of retention over the thing deposited.

SUBSECTION 2. NECESSARY DEPOSIT AND DEPOSIT WITH INNKEEPERS AND OTHERS.

Art. 916.— A deposit is said to be “necessary,” where the depositor is forced to make it by an inevitable and unforeseen accident such as fire, inundation, shipwreck, earthquake, sedition A necessary deposit can be proved by any available evidence ; even by presumption of fact arising from the circumstances of the case. A necessary deposit is, in addition, subject to the rules of voluntary deposits with the exception of the additional punishment provided for by the Penal Code in case of breach of trust.

Art. 917.— Hotel keepers, innkeepers, and keepers of furnished lodgings are considered as necessary depositaries in respect of the effects brought by travellers lodging with them. So are also carriageowners, shipowners and other carriers undertaking transport by land or by sea by way of business in respect of effects entrusted to them for carriage. Nevertheless, the depositaries mentioned in this article are subject to the ordinary liability of persons contracting onerously.

SECTION II. SEQUESTRATION.

Art. 918.— A sequestration is a deposit made in the hands of a third person of a thing that is the subject-matter of litigation or of opposing claims on the part of two or more persons. It can have for its subject-matter movables or immovables. It is cither conventional or judicial.

Art. 919.— A conventional sequestration must be agreed to by all the persons interested in respect of the deposit itself as well as of the choice of the person who is to be sequestrator. A judicial sequestrator is only to be selected by the Court of its own motion where the parties cannot agree as to the choice of one. The Court can appoint as sequestrator a party to the proceedings.

Art. 920.— The sequestrator, whether conventional or judicial, may be paid a remuneration ; he is, in such case, bound to exercise towards the thing the ordinary care of a good administrator.

Art. 921.— A judicial sequestrator can make leases, in conformity with Art. 126; but a conventional sequestrator can only do so by virtue of special authority from the persons interested. They can both bring possessory actions in order to preserve or recover possession. The possession of the sequestrator works for the benefit of the party who finally succeeds in the dispute.

Art. 922.— The thing placed in sequestration must be delivered to the party who is successful. Nevertheless, the sequestrator, in order to protect himself from liability, can require the authorization of the parties concerned or an order of the Court.

Art. 923.— The rules of deposit properly so called are in respect of other matters to be applied to conventional and judicial sequestration.

Art. 924.— The keeping judicially of objects that have been attached, and the deposit or consignment of sums of money or of things of value tendered in payment to a creditor who refuses to receive them are provided for by the Code of Civil Procedure.

CHAPTER XX. MANDATES.

SECTION I. THE NATURE OF A MANDATE.

Art. 925.— A mandate is a contract whereby one party entrusts the other to do something in the name and in the interest or for account of the mandator. Where the mandatory is to act in his own name, but in the interest and for account of the mandator the contract takes the name of “commission.” Commission is provided for by the Commercial Code.

Art. 926.— Mandates can be tacitly given and tacitly accepted.

Art. 927.— Mandates are gratuitous, unless there be an express or tacit agreement to the contrary.

Art. 928.— Mandates arc cither general, limited, or special. A general mandate, or mandate without particular mention of what is to be done under it, only comprises acts relating to the management of the patrimony of the mandator. A mandate is limited when it comprises a class of acts of a particular and limited kind, whether of management, of disposition, or of obligation ; it can also include the taking of certain proceedings judicially whether as plaintiff, as defendant, or as intervener. A mandate is special when it has for subject-matter the doing of one or several acts of the kind above named.

Art. 929.— Every mandate, whether general, limited, or special, tacitly extends to the necessary consequences of the acts that form its subject-matter. Power, however, to contract an obligation for a payment of principal does not include that of paying it. Power also to stipulate for a payment of principal does not authorize the receipt of such payment. Power to sue or defend docs not authorize the appointment of arbitrators, admission of the demand, discontinuance of the action, or even a compromise. Power to compromise docs not permit the reference of the dispute to arbitrators, nor even to the Courts. Similarly power to refer to arbitration does not include that of compromising or of submitting the dispute to the Courts.

Art. 930.— A mandate can be validly given to a person incapable of acting for himself ; but the mandatory incurs towards the mandator only the limited responsibility attaching to persons without legal capacity.

Art. 931.— A mandatory can substitute another person in his place for all or part of the acts of his authority, unless such power has been expressly withheld or unless the nature of the business is such that it must be considered as having been exclusively entrusted to the mandatory : he is in such case as liable for his substitute's management as if it were his own. If the person whom he may substitute for himself has been designated to him, he is not at liberty to select any one else, and notwithstanding that it may be impossible for him to comply with the selection named ; where he has complied therewith, he only incurs liability for incapacity or want of good faith of the substitute if he was or could have been aware thereof in time to inform the mandator, or to revoke the substitute's authority. In the case of substitution being made in spite of prohibition, or in the case of a substitute being selected other than the person authorized, the mandatory is liable for all damages even although caused by inevitable accident or resulting from irresistible force, if the same would not have happened without such substitution.

Art. 932.— In the cases provided for by the two first paragraphs of the preceding article, the mandator can bring directly against the substitute any action relating to the exercise by the latter of his authority. and on the same ground he is directly bound towards him. In the cases of irregular substitution provided for by the third paragraph of the same article, the mandator has the choice between his direct action and an indirect action in the name of the mandatory ; exercise of the former course, however, carries with it ratification of the substitution.

SECTION II. OBLIGATIONS OF THE MANDATORY.

Art. 933.— So long as the mandate is not terminated in one of the ways in Section IV. mentioned, the mandatory is bound, under pain of damages, to fulfil it according to its form and tenor, taking also into consideration the intention of the mandator if known to him, although not specifically expressed. Where complete performance is imposible, partial performance is only obligatory and permissible in so far as it is useful to the mandator.

Art. 934.— Where a mandatory instructed to buy at a specified price has only been able to obtain the thing at a higher price, he can, by waiving his right to claim for the excess, insist on ratification of the purchase by the mandator; the mandator on his side can insist on delivery of the thing at the price that has been paid. Where, in the case of a mandate to sell, the mandatory has sold under the price fixed, he is entitled to have the sale ratified on his making up the difference.

Art. 935.— A mandatory is bound to devote to the carrying out of his mandate all the care of a good administrator. Nevertheless, his faults arc to be regarded with less severity in the following cases: 1. If he renders his services gratuitously ; 2. If he did not propose himself to the mandator; 3. if his want of skill was known or suspected by the mandator ; 4. If other acts of his in the carrying out of his authority have produced for the mandator an unexpected profit.

Art. 936.— A mandatory is bound on the expiration of his mandate, and even before if requested by the mandator, to render an account of his management, with the documents in support.

Art. 937.— He must hand over to the mandator all sums of money and things of value received by him on the latter's account and in consequence of his management, notwithstanding that the same may not have been lawfully due or that he may not have been authorized to receive them, but subject to his right to deduct therefrom whatever may lx: due to him by the mandator in conformity with the following Section. He is to add thereto the total amount of any money or of things of value that he has omitted to collect or that he has lost through his fault, as well as any damages due by virtue of the preceding articles.

Art. 938.— A mandatory who has, without authority, employed for his own use capital of his mandator owes, as of course, interest thereon from the date of such employment, without prejudice to larger damages, if grounds for such exist. In respect of sums of money of which he is merely debtor on a balance of account, he has to pay interest from the time of his being constituted in arrear.

Art. 939.— Where several mandatories, have been appointed for the same matter cither at one and the same time or at different times each of them is only liable for his personal faults, and there is no joint and several liability between them unless it has been stipulated for, or unless the faults have been jointly committed.

Art. 940.— A mandatory is not bound towards third persons for the performance of transactions entered into with them in the name and for account of the mandator unless he has expressly so agreed, or unless he has held himself out to them as having powers which he had not.

SECTION III. OBLIGATIONS OF THE MANDATOR.

Art. 941.— The mandator has : 1. To refund to the mandatory advances and lawful expenses which he has disbursed in the performance of his mandate, together with legal interest thereon from the date of their disbursement ; 2. To pay him whatever remuneration may have been agreed on ; 3. To compensate him for any loss or damage sustained, without any fault on his part, in consequence of or in the course of his management; with the exception, however, of such damage as might have been foreseen and may have alone or in part given rise to the promise of remuneration ; 4. To procure him his discharge or an indemnity from all personal engagements which he may have undertaken .by reason of his management.

Art. 942.— A mandatory is not bound to make the disbursements mentioned in the preceding article, unless he has agreed to do so; he cannot, however, on this account, delay carrying out his mandate, unless he has first established refusal or delay on the part of the mandator to furnish him with the necessary means.

Art. 943.— No remuneration is due until the mandate has been entirely performed, unless it has been stipulated that the same should be paid by instalments. Where performance in full has been prevented by a cause which is not attributable to the mandatory, his remuneration is due in proportion to what he has done.

Art. 944.— Until the mandator has discharged his obligations, the mandatory enjoys a right of retention over whatever he holds by virtue of his mandate and by reason whereof he is a creditor.

Art. 945.— Where a mandate has been created by several persons either separately or together for a matter concerning them in common, each mandator is jointly and severally bound by the preceding obligations, unless it has been stipulated to the contrary.

Art. 946.— The mandator is bound towards third persons with whom the mandatory has dealt for all engagements entered into in his name in conformity with the mandate. He is also bound by whatever has been done in excess of the powers conferred : 1. If he has ratified such acts either expressly or tacitly; 2. If he has benefited thereby, to the extent of such bebefit ; 3. If the third persons have acted in good faith and have had reasonable grounds for believing in the powers of the mandatory.

SECTION IV. TERMANATION OF THE MANDATE.

Art. 947.— Independently of the fulfilment of the mandate or of impossibility to fulfil it and of the expiration of the time of happening of the condition subject to which it was granted, the mandate expires: 1. By revocation by the mandator; 2. By renunciation on the part of the mandatory; 3. By the death, bankruptcy, insolvency, or deprivation of the right to exercise civil rights of the mandator or mandatory; 4. By the termination in the person of the mandatory or of the mandator of the special character by virtue of which the mandate was given or accepted.

Art. 948.— Revocation of a mandate effected in the sole interest of the mandator may, notwithstanding that he has promised a remuneration, be made by him at any time and as he sees fit.

Art. 949.— Revocation only operates for the future and is without prejudice to any thing that may have been previously validly done.

Art. 950.— Where there are several mandators, revocation by one does not terminate the mandate with respect to the others.

Art. 951.— Revocation of a mandate may be tacit and can result from the creation of a new mandatory for the same matter, from the mandator retaking the management into his own hands, or from other circumstances.

Art. 952.— Renunciation by the mandatory, excepting where the same is founded on some lawful or necessary cause, gives rise to compensation in favor of the mandator, if he has been prejudiced thereby. Renunciation can be made tacitly as well as expressly.

Art. 953.— The causes which put an end to a mandate either on the part of the mandator or of the mandatory cannot be set up as between the parties respectively until they have been notified to them or have otherwise come to their knowledge in a definite manner. In the case of death of one of the parties, notice must be given to or by his heirs.

Art. 954.— The said causes for termimination of a mandate cannot be set up against third parties who, since their occurrence, have dealt in good faith with the mandatory, and even although the mandator may have withdrawn his written procuration from the hands of the mandatory.

Art. 955.— Where a mandate has terminated for one of the causes above pointed out, the mandatory or his heirs must look after the interests of the mandator that are already at stake until he or his heirs can look after them cither themselves or by means of a new mandatory. This provision is to be more strictly applied where the termination of the mandate is due to renunciation by the mandatory than where it is due to revocation by the mandator.

CHAPTER XXI. HIRING OUTOF SERVICES AND OF LABOUR OR SKILL.

SECTION I. HIRING OUT OF SERVICES.

Art. 956.— Employes, clerks, servants attached to the person or house of their master, common and day laborers, and agricultural and industrial workmen can hire out their services for wages or salary fixed by cither the year, month, or day. In this case the hiring lasts until terminated by previous notice given by one side to the other at the time established by the custom of the place, or, in the absence of any fixed custom, at any time, provided that the same is not inopportune or that such notice is not given in bad faith.

Art. 957.— The hiring of the services of such persons can also be made for a fixed time, but the same cannot exceed 5 years in the case of employes and servants, and one year for workmen or laborers: without prejudice, however, to what is said hereinafter in regard to contracts of apprenticeship. In the case of an engagement for a longer time, the same is, at the instance of cither party, to be reduced to such period; but without prejudice to the power to renew indefinitely for a like |period.

Art. 958.— Where the hiring out of services has been made for a fixed time, it can be terminated earlier, either by cancellation on the ground of non-fulfilment by one of the parties of his obligations, or for causes arising on either side which are recognized as lawful and imperative. In every case the death of the master terminates, as of course, the hiring out of services, which are personal to him.

Art. 959.— Where the lawful cause terminating a hiring out of services arises on the side of the master or employer, and happens at a time of the year when, according to the custom of the place, it is difficult for the person hiring out his services to enter into a new engagement, he is to be allowed an indemnity which is to be fixed by the Court according to the circumstances of the case.

Art. 960.— In every case the death of the person rendering the services puts an end to the contract; subject, however, to the restitution to be made by his heirs of whatever he has been paid by way of salary or wages for time not yet expired.

Art. 961.— The preceding rules arc applicable to contracts of hiring entered into between actors, musicians, dancers, wrestlers, or conjurers and managers of theatres, shows, and other public entertainments. They also apply to masters or professors of fencing, sword exercise, trades, and industrial arts, and to veterinary surgeons or animal doctors.

Art. 962.— Doctors, advocates, professors of science, literature, the fine arts, and liberal arts, do not hire out their services; they are not civilly bound to give or to continue giving the assistance that they have promised or commenced to give to patients, clients, or pupils, and these on their side are not bound to receive their assistance or services, although they have applied therefor and such have been promised them. If, however, such assistance or services have actually been given or rendered, in whole or in part, fees or remuneration can be judicially claimed, regard being had to the respective position of the parties as well as to the custom of the place and the agreement made. A party who has procured for himself the promise of the assistance and services of such persons, and who, without legitimate grounds, subsequently refuses to receive the same, can be condemned to pay an indemnity to the other party, if he has by such refusal sustained a pecuniary loss. In like manner, a person, who, having promised his assistance or services, subsequently refuses them without legitimate grounds, can be condemned to make good any injury caused thereby.

SECTION II. CONTRACTS OF APPRENTICESHIP.

Art. 963.— A manufacturer, mechanic, or merchant can undertake by a special contract, called “of apprenticeship”, to teach the knowledge and exercise of his trade or calling to an apprentice of either sex, who, on his or her side, undertakes to help him in his work. An apprentice who is a minor cannot enter into a contract of apprenticeship without being assisted or represented by his father, guardian, or other person having authority over him.

Art. 964.— An apprenticeship engagement entered into by a minor who is duly assisted, or by his representative, cannot extend beyond the time of his minority; without prejudice, however, to its being renewed or prolonged by the apprentice after his attaining his majority.

Art. 965.— The contract of apprenticeship regulates the nature and extent of the obligations of the respective parties. Where the same is silent in this respect, the deficiency can be supplemented according to the custom of the place where the calling of the master is carried on.

Art. 966.— The master must, in the absence of any stipulation or of local custom to the contrary, supply the apprentice with lodging, board, and maintenance and the tools or instruments of his business. He must also give him such time, attention, and necessary facilities as will enable him to learn the trade or calling forming the object of apprenticeship. If the apprentice is a minor and ignorant of reading, writing, or arithmetic his master must, notwithstanding any agreement to the contrary, allow him one hour at least every day for his education exclusive of the time allowed for rest.

Art. 967.— The apprentice, on his side, owes to his master all his time and such services as relate to the trade or calling that he wishes to learn.

Art. 968.— If an apprentice from sickness, or from any other irresistible cause attributable to or arising through him, has been prevented from rendering his services for one or several continued periods of a month or more, he must prolong his work by so much, under the same conditions respectively, after the expiration of his time of apprenticeship.

Art. 969.— The contract of apprenticeship comes to an end as of course : 1. By the death of the master or of the apprentice; 2. By the entering of either the one or the other into naval or military service ; 3. By cither being found guilty of crime or delict, and condemned to imprisonment for three months or more; 4. By expiration of time as fixed by the agreement or by law.

Art. 970.— Cancellation of the contract can be pronounced judicially on demand of the party interested ; 1. For non-fulfilment of its respective obligations, even though due to irresistible force; 2. For bad treatment on the part of the master towards the apprentice; 3. For habitual misconduct of the apprentice; 4. For delicts, committed by the master or apprentice, other than those provided for by the preceding article ; 5. For change of residence by the master to some place beyond the Fu or Ken where it was intended that the agreement should be performed. The party against whom cancellation is pronounced in consequence of this article can, in addition, if he has been to blame, be condemned to pay damages to the other party ; the same also applies in the case of the sentences mentioned in the preceding article.

SECTION III. CARRYING FOR HIRE BY LAND OR BY WATER.

Art. 971.— Railway companies, navigation companies, as well for rivers as for sea, carriage proprietors, and boat and ship owners undertaking as a business the carriage of persons and things are to be deemed to be traders and to be subject, as such, to the provisions in general of the Commercial Code and to the special rules of their business, as well as to the following dispositions. They are only to be regarded as necessary depositaries, in conformity with the second paragraph of Art. 917, in respect of the things entrusted to them for carriage.

Art. 972.— Every person who undertakes the carriage of things in return for hire, cither for a lump sum or according to the size of the consignment and the distance it has to go, is bound to bring to bear in respect to the preservation of such things all the care of a good administrator. All loss and damage is to be borne by him, unless he can prove that it was due cither to the inherent vice of the thing. or to inevitable accident or irresistible force.

Art. 973.— Such liability commences to run from the moment the things to be: carried have been delivered to the carrier or persons in his employ, although not yet loaded or shipped, and even before the price of carriage has been determined where the same has been arranged subject to measurement or some other mode of verification. If the contract of carriage has not yet been formed, even conditionally, delivery in advance of the things to be carried only constitutes a voluntary deposit.

Art. 974.— Any person who undertakes the carriage of persons is responsible for accidents and injuries happening to such persons, where it is proved that they have been caused by his fault or neglect. Such responsibility only commences from the time when such persons have entered into a carriage, boat, or ship which is driven or navigated by the car riage owner, boat owner or master, or by those employed by them. Carriers are responsible for the fault or neglect of their employes to the same extent as for their own.

Art. 975.— Where the things earned have been received by the consignee or his employes without objection or reservation, they arc to be presumed, in the absence of proof to the contrary, to have been received by him in their entirety and in good condition. Nevertheless, where payment of the price of carriage is to be nude by the consignee, such presumption only arises where such price has been also paid without any reservation. Proof to the contrary is no longer admissible, even although obligations or reservations may have been made, if the cases, bales or packages have been opened without the carrier or his employes being present, unless, in the latter case, there be proof of fraud or embezzlement on their part.

Art. 976.— Where in the case of dispute as to the nature or causes of damage the parties cannot agree as to the selection of one or more experts, their appointment is to be made by the Court within as short a time as is reasonable.

Art. 977.— Where no estimate of value of the things to be carried has been fixed by common consent at the time of the contract or subsequently, it is to be determined, in the case of only damage or partial loss, by a survey by experts of what remains, and in the case of total loss, by the ordinary means of proof; but, if the carrier has been free of bad faith, such amount is not to exceed the limit of value, which he might have reasonably anticipated.

Art. 978.— In the case of mere delay in the arrival of the things carried, compensation for loss is to be fixed according to the circumstances, and by taking into consideration whether there has been mere fault or bad faith in conformity with Art. 405. Where a certain time has been stipulated for by the consignee or his representative or has been brought to their notice by the parcel ticket, bill of lading or any other document that has preceded or accompanied delivery of the things, the taking delivery thereof, without protest or reservation on account of delay, purges the fault of the contractor or carrier.

Art. 979.— Any person who has undertaken the carriage of goods is, if the contract for such service has been rescinded, entitled at the termination of the transport or even at its commencement to retain the things entrusted to him until payment of what is due to him for their carriage, as well as for legitimate disbursements advanced by him in respect of them.

Art. 980.— The obligations special to their calling of carriers by railways, boats, ships, or public carriages arc determined by special administrative Regulations,

SECTION IV. HIRING OUT OF LABOUR OR SKILL.

Art. 981.— Where a person undertakes to perform specified industrial or manual work in return for a lump sum or price settled in advance cither for the whole work or for its different parts or stages, the agreement is a hiring out of labour or skill where the principal materials arc furnished by the person requiring the work, and a sale subject to the condition of performance of the work where both the chief materials and work are furnished by the manufacturer or workman.

Art. 982.— Where, in cither of the cases mentioned in the preceding article, the thing on which the work has been already either in whole or in part performed happens to perish by inevitable accident or irresistible force, the loss of the materials is to be borne by the person to whom they belong and the price of the work done is not due to the workman, unless the other party has been in arrear in examining and accepting the same. Where one of the parties has caused the loss or is in arrear in respect of delivery or examination, such party alone has to bear the loss in respect of material as well as labour, without prejudice to larger damages, if grounds for such exist. Where the materials have been furnished by the workman, partial loss or mere deterioration is to be treated in the same manner as total loss, if the thing has thereby lost more than half its value ; where the depreciation is less than a half, Art. 158, the third paragraph of Art. 439, and Art. 440 are to be applied. Where the materials have been furnished by the employer, he is bound to pay for the work to the extent to which the remaining part of the materials has been increased in value thereby.

Art. 983.— In cases in which the materials are furnished by the employer, it can be agreed that the work is to be examined and accepted in portions although delivery thereof is not to be effected until after its complete performance ; in such a case, the workman is released from risk in respect of work done, if the employer has examined and accepted it or is in arrear in its examination. Advances of money or payments on account made by the employer during the course of the work do not of themselves imply acceptance of the work already done; but if the thing perishes before formal acceptance, or before the employer has been constituted in arrear, he can only reclaim such advances or payments on account in so far as they are in excess of the work actually done.

Art. 984.— Acceptance of work by the employer, although made without any reservation, docs not deprive him of his right to withdraw his acceptance and to demand a reduction or a partial return of the price, if he subsequently discovers defects which were not apparent and which render the thing unsuitable for the use for which it was intended. An action of reclamation on this head becomes extinguished three months after acceptance of the whole of the work in the case of work performed on movables or immovables belonging to the employer In the case of things made with materials furnished by the workman Art. 746 is to be applied.

Art. 985.— In the case of constructing for a lump sum buildings, vaults, walls, terraces, dikes or other large works of a like kind to be made on the surface of land, the architects or contractors directing or carrying out the same are responsible for their total or partial loss, or for serious deterioration arising from vice of the soil or from defect of construction, irrespective of whether the contractor has built on the land of another or on his own land or whether he has furnished the materials or not. Such liability continues: For two years after acceptance of the work in the case of walls, terraces, and other works in earth in which wood, stones, or tiles arc used accessorily ; For five years in the case of houses or buildings in which wood is the chief material : For ten years in the case of buildings in stone or in brick, and for kura or dozo.

Art. 986.— Actions of indemnity or for reparation by reason of such liability become extinguished : By the lapse of one year commencing to run from the date of such loss in the case of total loss of the thing ; By the lapse of six months commencing to run from the expiration of the time during which the contractor's liability continues in the case of partial loss or of deterioration.

Art. 987.— The architect or contractor cannot demand an increase of the agreed on price, nor can the employer demand its reduction, under pretext of alteration of the original plans, unless such increase or reduction of price has been arranged for in writing. This disposition docs not apply where there has been an addition of constructions quite distinct from those included in the contract price or where a part of the agreed on works has not been done; in this case in default of the parties agreeing among themselves, the increase or reduction to be made in the original price is to be settled by the Court. The contractor cannot cither, under pretext that the original or modified plans have been forced upon him by his employer; relieve himself of the liability established by Art. 985, unless he has obtained, also in writing, a discharge from liability on such account.

Art. 988.— Whether the contractor furnishes only his work, or whether he furnishes the materials also, the employer or his heirs can cancel the contract at any time they see fit upon their indemnifying the contractor for work already done as well as for loss incurred in respect of materials already prepared for the work, and for any other damage, and upon their paying hint the full amount of legitimate profit that he would have obtained by the contract.

Art. 989.— Although the contract may have been cancelled or the work excuted either in whole or in part with the materials of others, the contractor or workman is at liberty to retain such materials until payment in full of what is due to him for his work as well as for compensation for such cancellation.

Art. 990.— The contract is dissolved by the death of the contractor or by impossibility on his part to perform the work, where his individual work was what induced the employer to contract. In these two cases, the employer is only bound to pay to the contractor or his heirs the value of works or materials which benefit him, regard being had to the object he had in view.

Art. 991.— Subcontractors who undertake different parts of the work arc subject to the preceding rules in so far as concerns their particular relations with the principal contractor. In default of payment by him of what is due to them, they can proceed directly and in their own name against the employer to the extent to which he is still indebted to the contractor. Ordinary workmen, in default of payment of their wages by whoever has hired them, have a like right against such employer.

CHAPTER XXII. HIRING OUT OF LIVE-STOCK OR PROFIT-SHARING LIVE-STOCK LEASES.

SECTION I. ORDINARY PROFIT-SHARING LIVE-STOCK LEASES.

Art. 992.— The ordinary profit-sharing live-stock lease is a lease of large or small cattle, horses, or poultry, by which the hirer binds himself to keep, feed, and look after a flock or certain number of animals in return for a share of the produce thereof. In the absence of any special agreement, the hirer has a half of the young of the animals and of what any shearing produces, and all their milk, eggs, manure, and work.

Art. 993.— The hirer only has to bear the total or partial loss of the animals where the same is the direct or indirect consequence of his fault. He cannot make himself responsible for fortuitous events or inevitable accidents. The estimated value put on the leased animals is to be taken as the standard of the hirer's liability, unless he can show that depreciation from fortuitous causes has subsequently arisen. In the same case, the person hiring out cannot after total loss allege that the animals leased had acquired an increased value.

Art. 994.— The hirer can only claim partition in such of the young as remain over after replacing animals that have died or become unfit for use. He cannot shear any animals until after he has given the lessor previous notice.

Art. 995.— Profit-sharing live-stock leases of which the parties have not fixed the length continue for one year. If a longer period has been fixed, the hirer can withdraw therefrom after one year, provided that he gives the lessor sufficient previous notice to enable him to find a new lessee. Where, whether a time has been fixed or not for the length of the lease, the hirer remains and is left in possession of the animals leased after the time when in regular course it ought to have ceased, this operates a tacit renewal for a period of one year.

Art. 996.— Where the hirer is at the same time lessee of rural property belonging to another owner, the latter can attach the animals leased for payment of rent, if he was not aware that such animals did not belong to his tenant.

SECTION II. PROFIT-SHARING LIVE-STOCK LEASES WITH TENANTS PAYING RENT IN MONEY OR IN PRODUCE.

Art. 997.— Where the lessor of a rural property let at a rent or for a share of the produce hands over to the lessee horses or cattle as constituting a part of the working material, the live-stock lease is accessory to the principal lease and has the same length; in other respects and without prejudice to the following exceptions it is subject to the rules of the preceding Section.

Art. 998.— Where the property is let at a rent the lessee is entitled to every thing produced by the said animals but upon condition that he replaces every year from the young animals those that have died or become unfit for use. He can, by express agreement, make himself responsible for accidental losses.

Art. 999.— Where the property is let for a share of the produce, the lessee is entitled to all the milk, but in respect of the young and the wool he is only entitled to the same share as he has in the produce of the land ; without prejudice, however, to any agreement to the contrary. He cannot take upon himself liability for accidental losses happening to the live-stock. In every case the manure and work of the animals must be exclusively utilized on the leased proPerty.

SECTION III. SHARING PROFITS IN LIVE-STOCK IN COMMON OR IN PARTNERSHIP.

Art. 1000.— Owners of such animals as are mentioned in Art. 992 can, either by equal or unequal contributions, form a common live-stock fund, one of them undertaking to feed, keep, and take care of such animals. The young and wool are to be divided in proportion to the contributions. The milk, manure, and work of the animals is to benefit that contributor alone who has undertaken to look after them. Losses from accident or irresistible force arc to be borne by each contributor in proportion to his contribution.

BOOK IV. SECURITIES OR GUARANTIES OF RIGHTS OF CLAIM OR PERSONAL RIGHTS. PRELIMINARY PROVISIONS.

Art. 1001.— All property of a debtor, whether movable or immovable, present or future, with the exception of things declared not liable to seizure either by law or by the will of man, constitutes the common security of his creditors. In the case of the property seized being insufficient to satisfy all the obligations of the debtor, its value, unless lawful grounds for preference exist, is to be awarded to the different creditors in proportion to the amount of their claims, irrespective of their several subject-matters, grounds, forms, or dates. The mode of proceeding in the seizure and sale of such property as well as in the distribution of the price by order of preference or equally is provided for by the Code of Civil Procedure.

Art. 1002.— The fulfilment of obligations can be secured by cither personal or real special guaranties. Personal securities or guaranties arc : 1. Suretyship; 2. Solidarity, or joint and several liability or right of claim between debtors or between creditors respectively; 3. Voluntary indivisibility. These form the subject-matter of Part I of this Book. Real securities or guaranties are : 1. Lien, or the right of retention ; 2. Pawn, or the pledging of movables ; 3. Antichresis, or the pledging of immovables ; 4. Privileges; 5. Mortgages; These form the subject-matter of Part II.

PART I. PERSONAL SECURITIES OR GUARANTIES. CHAPTER I. SURETYSHIP.

Art. 1003.— Suretyship is furnisherd voluntarily by the debtor to the creditor, except in cases in which it is required by law or ordered judicially. The dispositions of this Chapter are common to these three kinds of surety, ship. Special rules for legal and judicial suretyship are contained in the Appendix hereto.

SECTION I THE OBJECT AND NATURE OF SURETYSHIP.

Art. 1004.— Suretyship is a contract by which a person undertakes to discharge the obligation of a third person in default of performance by the latter. Such undertaking involves that of indemnifying the creditor for such non-performance, in so far as the same is imputable to the fault of the debtor.

Art. 1005.— Suretyship is void as such, if it has for subject-matter any thing other than the principal obligation. A surety can, however, validly promise a sum of money that is regarded as the equivalent of a thing or act promised by the principal debtor, and that is provided for by a penal clause in anticipation of non-performance.

Art. 1006.— The obligation of the surety cannot be greater, or subjected to more onerous conditions or forms than the principal obligation ; where it has been contracted with more extensive limits or in a more onerous manner, it can lie reduced to the limits and forms of such obligation.

Art. 1007.— The prohibitive provisions of the preceding article do not prevent a surety front furnishing to the creditor real securities or guaranties for his accessory obligation where the principal debtor has not given any for the principal obligation, or from his taking upon himself more difficult ways of performance than the debtor. A third person, in such case called “a certifier of surety,” may in his turn become surety for the original surety, and the latter then stands towards him in the position of principal debtor.

Art. 1008.— Suretyship limited to a specified sum or object does not extend to interest, fruits, or other accessories of the thing due. An indefinite suretyship for a principal obligation, however, extends to both stipulated and moratory interest, and to other accessories of the debt whether natural, legal, or the result of agreement; it extends also to the cost of the original demand made on the principal debtor and to those costs incurred against him after the proceedings have been notified to the surety.

Art. 1009.— Every valid obligation can be secured by suretyship. The voidable obligation of a person without legal capacity can also be validly guaranteed by suretyship, and suretyship retains its validity notwithstanding that the obligation is judicially annulled, provided the surety was aware of the debtor's incapacity at the time of his undertaking the suretyship. Other cases of civil suretyship of the natural obligations of other persons arc governed by Art. 588 and following articles.

Art. 1010.— Suretyship can be given for a future debt, and even for one which depends on a condition that is optional for either the creditor or debtor, provided that its nature and extent can be appreciated by the surety.

Art. 1011.— A person can constitute himself surety of a debtor upon mandate of the latter, or unknown to him, or even contrary to his will. The remedy against the debtor in these different cases of a surety who has paid, is provided for by Section II. subsection 2.

Art. 1012.— In order for a person to validly constitute himself surety for another he must have legal capacity to bind himself gratuitously both generally as well as in respect of the debtor. Nevertheless, if the principal contract is onerous, the surety cannot set up against the creditor incapacity in regard to the debtor, unless the latter was aware thereof.

Art. 1013.— The intention to be surety for a debt, where it has not been formally expressed, must clearly result from the circumstances; but it is not to be inferred from the mere fact of having recommended one of the contracting parties to the other, or from having given assurances as to his present or future solvency. Where a doubt exists as to whether one of the signatories of a document is a codebtor or a surety, he is to be deemed to be merely a surety.

Art. 1014.— In the absence of any stipulation to the contrary, the obligations of a surety pass to the burden of his heirs and to the benefit of the heirs of the creditor.

Art. 1015.— Where a debtor has by agreement bound himself to furnish a surety, he can only offer for such position, or as a certifier of surety, a person whose solvency is notorious or easily ascertainable, regard being had, however, to the nature and extent of the debt. Where the surety thus furnished or his certifier becomes insolvent, the debtor must offer another person who complies with the said conditions. The surety must in addition have or elect a domicile within the jurisdiction of the Appeal Court of the place where payment is to be made. The preceding conditions do not apply where the promised surety has been individually designated by the creditor.

Art. 1016.— if the debtor cannot furnish a surety or certifier fulfilling the conditions above required, he is, to be permitted to give real securities, either movable' or immovable, to be approved of by the Court.

Art. 1017.— Special matters relating to the guaranty or suretyship of negotiable instruments and to the guaranty given by commission agents to their principals are provided for in the Commercial Code.

SECTION II. EFFECT OF SURETYSHIP. SUBSECTION 1. EFFECT OF SURETYSHIP AS BETWEEN THE SURETY AND THE CREDITOR.

Art. 1018.— The creditor cannot sue the surety without producing to him proof that a summons to pay or to perform has been served on the debtor and has remained without results. Nevertheless, such summons is not necessary where the debtor has disappeared, or has been declared bankrupt or is in a state of notorious insolvency.

Art. 1019.— The surety can, however, under the restrictions and conditions hereafter mentioned, require the creditor to in the first place proceed to discuss that is have sold the property of the debtor.

Art. 1020.— The surety is not entitled to the benefit of discussion where he has expressly or tacitly renounced it, or where he has bound himself jointly and severally with the principal debtor., He is in every case deprived thereof where he has not set it up against the creditor before contesting the principal debt on the merits.

Art. 1021.— A surety who demands discussion must indicate the immovables of the debtor, within the jurisdiction of the Appeal Court of the place where payment is to be made, that are to be proceeded against by the creditor. He cannot indicate for discussion immovables in litigation, or immovables mortgaged by way of preference to other creditors, or even mortgaged to the suing creditor, if the same are in the possession of a third holder. With respect to movable things or valuables belonging to the debtor, the surety cannot demand their discussion, unless they have been already appropriated to the creditor as real securities.

Art. 1022.— Where discussion of the debtor's property has been validly demanded and, the creditor having failed to proceed thereto, the debtor has subsequently become insolvent, the surety is discharged to the extent of what the creditor would have been able to obtain by such seizure and sale.

Art. 1023.— Where there are two or more sureties of the same debtor, the debt is, as of course, divided between them in equal parts, unless their shares have been otherwise fixed, or unless such sureties have bound themselves jointly and severally either with the debtor or among themselves, or have otherwise renounced their right to division. Such right exists although their obligations may have been separately contracted.

Art. 1024.— Whether a surety has availed himself or not of the benefit of discussion or whether he enjoys or not the benefit of division, he can, when sued judicially, and before making any defence on the merits, set up against the creditor, in accordance with the forms and conditions prescribed by the Code of Civil Procedure, a dilatory plea, in order to have the debtor made a party to the action for the purposes in Art. 1029 mentioned.

Art. 1025.— Where a surety relies on the merits for his defence, he can set up against the creditor any pleas or pleas in abatement that are based on the formation or extinguishment of the principal debt. He can also set up grounds of nullity arising from incapacity of the debtor or defects in the debtor's consent, if he was ignorant thereof when he became surety for the debt.

Art. 1026.— Judgments rendered on such pleas between the creditor and the surety can benefit but cannot prejudicially affect the debtor. Nevertheless, points decided by such judgments that are in connexion with each other cannot have that which is favorable therein to the debtor divided from that which is unfavorable.

Art. 1027.— Acts which directly interrupt the running of prescription against the debtor or which constitute him in arrear produce similar consequences with respect to the surety. Like acts occurring in regard to the surety do not interrupt prescription against the debtor, unless the surety in becoming bound has acted under the mandate of the debtor, or has bound himself jointly and severally with him.

Art. 1028.— The admission or acknowledgment of the debt by the principal debtor and the taking or refusal to take an extrajudicial oath occurring between him and the creditor benefit or work to the prejudice of the surety. Like acts occurring between the surety and the creditor benefit the debtor, but cannot prejudice him unless there be a mandate or solidarity.

SUBSECTION 2. EFFECT OF SURETYSHIP AS BETWEEN THE SURETY AND THE DEBTOR.

Art. 1029.— Where the surety is sued by the creditor, he can, as mentioned in Arts. 419 and 1024, make the debtor a party, to the action by means of an incidental petition on the ground of guaranty, in order that he may be defended by him against the principal claim, if any defence exists, and also in order, in the case of judgment being given against him, that he may obtain judgment against the debtor for the indemnity specified in the following article. The said petition on ground of incidental guaranty can only lx: made by a surety who has constituted himself surety under the mandate of the debtor.

Art. 1030.— A surety, who has voluntarily paid the principal debt, or who has otherwise by a personal sacrifice procured for the debtor his release, has against the latter, under the distinctions following, an action on ground of guaranty in order to obtain indemnification : 1. If he has undertaken the liability in virtue of a mandate from the debtor, he is to obtain reimbursement of all principal and interest from which lie has freed the debtor, or which he has paid in his name, of the expenses which he has had to incur, of interest on his advances from the time of the same being made, and of all other damages, if any. In the said case of mandate the surety can also sue for indemnification on ground that he was as mandatory condemned to pay ; 2. If he has undertaken the suretyship unknown to the debtor and in the capacity of voluntary manager of his affairs, he is entitled to such indemnity according to the extent of usefulness that the same has had for the debtor up to the time of the latter's discharge ; If the surety has bound himself against the will of the debtor, the said indemnity is only to be paid to the extent the debtor still remains benefitted thereby at the time of the surety having recourse against him.

Art. 1031.— In the case of a mandate given to a surety by two or more debtors jointly and severally or undividedly liable, all such debtors, in conformity with Art. 945, are with respect to him joint and several guarantors.

Art. 1032.— The remedy provided for in Art. 1030 does not belong to a surety who has omitted to have the debtor made a party, if the latter can show that he had peremptory grounds of defence to the action. Where the debtor had only dilatory pleas to set up against the creditor, he can in like manner set them up against the recourse of a surety, who has omitted to make him a party.

Art. 1033.— A surety also loses his right of recourse, notwithstanding he may have paid validly, if he has omitted to inform the debtor thereof so as to render the same of use to him, and if the latter has in good faith cither paid a second time or otherwise onerously obtained his discharge. On the other hand, the debtor can, according to circumstances, be held responsible for payment made by the surety after extinguishment of the debt by him, if he has tailed to give the surety notice thereof. In all these cases, the party interested has a right of recourse against the creditor who has received what was not due him.

Art. 1034.— A surety who has bound himself by virtue of a mandate can before he has paid, and even before being sued, take proceedings in the three following cases against the debtor in order to be indemnified in advance or guaranteed against future losses: 1. If the debtor has been declared bankrupt or insolvent and the creditor has not taken steps to share in the liquidation ; 2. If the debt has fallen due ; 3. If the debt has been running for more than 10 years, and no due date has been fixed even by mention of the longest time for which it can remain outstanding.

Art. 1035.— So long as the creditor has not been fully satisfied, the indemnity furnished in advance to the surety by virtue of the preceding article and of Art. 1030 can be placed on deposit, or otherwise kept in reserve by the debtor in the name of the creditor, in order to assure his obtaining his discharge from the latter.

Art. 1036.— Independently of the right of action belonging in his own right under the restrictions laid down in Art. 1032 and 1033 to a surety who has paid the principal debt or otherwise satisfied the creditor, he is subrogated, in conformity with Art. 504,-1, to all the rights belonging to the creditor against the debtor or against third persons. The said benefit of subrogation belongs to every surety even although he may have incurred his liability contrary to the will of the debtor. Where the creditor has a privilege or mortgage over an immovable of the debtor, and has had the same registered, the surety can have his conditional right of claim in view of the right of subrogation to which he has become entitled noted in the margin of the registration made, and in case of alienation the third holder must include him in his offers of purge. Where the creditor has failed to effect registration until too late to be of use the surety is entitled to his discharge as against him in conformity with Arts. 534 and 1045.

Art. 1037.— Where there are two or more joint and several debtors or two or more debtors of an indivisible obligation, a surety, notwithstanding that he has gone surety for some and not for others, is entitled by virtue of the said subrogation to have recourse for the whole against each of them.

SUBSECTION 3. THE EFFECT OF SURETYSHIP BETWEEN CO-SURETIES.

Art. 1038.— Where there arc two or more sureties of one and the same debt, and one of them has paid it in full, whether voluntarily or not, he has, under the conditions, limits, and distinctions above laid down with respect to his right of recourse against the principal debtor, a right of recourse against each of the other sureties for his individual share, either by action on the ground of voluntary management of another's affairs, or by action in the right of the creditor. Where the said surety without having paid all the debt has paid more than his own share, his right of recourse for such excess is to be equally divided between the other co-sureties.

Art. 1039.— If one of the co-sureties is insolvent, the right of recourse of the one who has paid lies against those who have gone surety for or certified the insolvent; in default of certifiers his share is to be divided between the other solvent cosureties including the one who has paid the debt.

Art. 1040.— A co-surety sued by virtue of the preceding article can, upon his observing the rules and conditions laid down on this subject in Art. 1020 and following articles, claim seizure and sale in the first place of the property of the principal debtor if such has not already taken place. The same right belongs to a certifier.

Art. 1041.— Where the different sureties are bound jointly and severally or for an indivisible debt, the one who is sued for integral performance can incidentally on the ground of guaranty have his co-sureties made parties to the action, in order to obtain against them by the same judgment such order as he is entitled to by the preceding articles.

Art. 1042.— The happening of acts causing interruption of prescription or of being constituted in arrear in the case of one surety has no effect with respect to the others unless their obligation is joint and several. Judgments, admissions, acknowledgments, and the taking of an extra-judicial oath or refusal to take it, occurring bet ween the creditor and one of the sureties with respect to the principal debt, can be taken advantage of by the other sureties if occasion arises, but cannot prejudicially affect them.

Art. 1043.— Arts. 1069. 1070, and 1071, under the distinctions therein made, are applicable to sureties that arc jointly and severally liable, either among themselves or together with the debtor, when one or more of them have become insolvent.

SECTION III. EXTINGUISHIMENT OF SURETYSHIP.

Art. 1044.— Suretyship becomes directly extinguished by the ordinary causes that extinguish obligations. Novation, conventional release, set-off, and confusion in regard to suretyship arc governed by Arts. 524, 533, 543,and 560.

Art. 1045.— The surety can demand his discharge as against the creditor, where the latter has diminished or prejudicially affected by a voluntary act or even by mere negligence the securities that the surety could have obtained by virtue of subrogation. The same right can be relied on by all the sureties without distinction, and also by any persons who have certified them.

Art. 1046.— Suretyship becomes indirectly extinguished by any cause which puts an end to the principal obligation. The effect, in regard to a surety, of a giving of something in lieu of payment, of novation, of conventional release, of setoff, or of confusion taking place between the creditor and the debtor is provided for by Arts 482, 523, 528, 543. and 560.

APPENDIX. LEGAL SURETYSHIP AND JUDICIAL SURETYSHIP.

Art. 1047.— Any person who either by disposition of law or by a judgment is bound to furnish a surety must offer one who fulfils the same conditions as would be necessary in the case of his having himself undertaken to furnish a surety, and such as the same arc prescribed in Arts. 1015 and 1016. The proceedings regarding the acceptance of legal and judicial sureties are provided for in the Code of Civil Procedure.

Art. 1048.— The Courts cannot order a surety to be furnished for the carrying out of their judgments, except in those cases in which the law confers on them such power.

Art. 1049.— Neither judicial sureties nor their certifiers can avail themselves of the privilege of having the debtor's property first seized and sold.

Art. 1050.— Legal sureties and judicial sureties are always to be regarded as mandatories of the debtor in respect to their right of recourse against him on ground of guaranty.

CHAPTER II. SOLIDARITY OR JOINT AND SEVERAL LIABILITY BETWEEN DEBTORS AND RIGHT OF CLAIM BETWEEN CREDITORS.

PRELIMINARY PROVISION.

Art. 1051.— An obligation that is simple in regard to its subject-matter, but multiple in regard to the persons who appear therein as principals, can be joint and several, either passively or actively, as stated in Art. 458, and as is explained in the two following Sections.

SECTION I. PASSIVE SOLIDARITY OR JOINT AND SEVERAL LIABILITY BETWEEN DEBTORS. SUBSECTION 1. NATURE AND CAUSES, OF PASSIVE SOLIDARITY.

Art. 1052.— Passive solidarity or joint and several liability between co-debtors constitutes them representatives of each other as well in the interests of the creditor, as in their own common interest. It can result from an agreement made between the parties, from a will, or from a disposition of the law. It is not to be presumed; it must in every case be expressly created, saving, however, what is said with respect to indivisibility in Art. 1089.

Art. 1053.— It is not necessary that the joint and several obligations of the different debtors should have been contracted by the same instrument or at the same time or same place, provided that the subject-matter and the cause of the obligation are the same. Joint and several co-debtors can also be bound by forms and be subject to burdens that are different and unequal.

SUBSECTION 2. EFFECT OF PASSIVE SOLIDARITY.

Art. 1054.— A creditor who has two or more joint and several debtors can claim integral performance of the obligation from any one of them he chooses to sue as if such debtor was sole debtor, and neither the benefit of prior seizure and sale nor of prior division can be set up against him. Such creditor can also sue all the debtors simultaneously, or successively until payment in full.

Art. 1055.— Each of the debtors, whether sued or not, can oblige the creditor to receive from him integral payment of the joint and several debt.

Art. 1056.— Where a joint and several debtor is sued for the whole of the debt or for more than his share, he can demand a necessary delay for his co-debtors to be made parties to the action and to obtain from them on the ground of incidental guaranty their contribution towards the general defence or towards payment. These latter can also intervene in the action of their own motion and at their own expense in order to protect their interests.

Art. 1057.— Where a debtor is sued for the performance of the joint and several obligation, he can set up against the creditor in respect of the whole thereof, both on his own behalf as well as on behalf of his co-debtors. any plea or grounds of defence based on defect in the formation of the obligation or on its extinguishment. If, however, there be question of novation, release of the debt, set-off, or confusion, Arts. 523, 528, 531, 543 and 557 are also to be observed.

Art. 1058.— Grounds of defence based on the want of capacity or on defect in the consent of one of the debtors can only be relied on by such debtor personally; once established, however, they benefit the others in respect of such debtor's share of the debt, whenever such others, in contracting their obligation, may have counted on his contribution towards performance.

Art. 1059.— Judgments, admissions, and the taking or refusal of an extrajudicial oath, as between the creditor and one of the debtors in relation to the different matters provided for in the two preceding articles, produce their consequences in the same degree and with the same distinctions against or in favor of the other debtors.

Art. 1060.— Where such judgment, admission, or taking or refusal of the oath has only taken place in regard to the existence or non-existence of joint and several liability between one debtor and the other debtors, the others are neither prejudicially nor beneficially affected thereby.

Art. 1061.— Causes, which interrupt prescription in favor of the creditor, or effect in his favor a putting in arrear against one of the joint and several debtors, produce the same effect against the others. Causes for suspension of prescription existing in favor of the creditor in respect of one of the debtors do not stop Prescription from running in favor of the others for their share or portion.

Art. 1062.— Where one of the joint and several debtors dies leaving several heirs, whether 'sharing equally or unequally, legal proceedings, judgments to pay, admissions, and the taking or refusal of an oath concerning one of the other debtors have only effect against each of the said heirs for his hereditary share in the total amount of the debt. Each of them can likewise only be sued and is only subject to the consequences of the acts above mentioned for his inherited share ; the effect thereof, in such case, also operates and to alike extent against each of the original debtors. Similar acts taking place between the creditors and one of the said heirs arc without effect for his co-heirs.

Art. 1063.— Where loss of the thing due or any other cause rendering it impossible to perform the obligation happens through the fault of one of the joint and several debtors, or after he has been constituted in arrear, the others are jointly and severally bound towards the creditor in respect of damages or the stipulated penalty, without prejudice to their right of recourse against the one who has been in fault or in arrear. Where one of the original debtors dies, the respective liability of the other debtors and of the heirs of the one who has died is to be settled in conformity with the preceding article.

Art. 1064.— A joint and several debtor who has, either in whole or in part, paid the debt, or procured the common discharge by means of a personal sacrifice, has in his own right a right of recourse against each of the other debtors for their respective actual shares in the debt, or in so much there of as has been paid. Such right of recourse, in conformity with the law of partnership and of mandate, includes, in addition to his disbursements and an indemnity for necessary sacrifices made, legal interest from the date of such disbursements.

Art. 1065.— The debtor who has paid the debt in whole or in part can also, but only to the extent of what the creditor has actually received, exercise the rights and rights of action of the latter by means of legal subrogation, in conformity with Art. 504. He is, nevertheless, bound to divide his right of action against each of his co-debtors as in the preceding article mentioned.

Art. 1066.— Forfeiture of the right of recourse as laid down in Arts. 1032 and 1033 in the case of a surety paying without taking proper precautions, can, in like cases, be decreed against a joint and several debtor who has failed to inform his co-debtors of legal proceedings being taken or of payment.

Art. 1067.— Where one of the co-debtors is insolvent at the time of recourse being exercised in one or other of the ways above prescribed, and negligence cannot be imputed to the claimant, the share of the insolvent is to be proportionately divided between those who are solvent, including the one who has paid.

Art. 1068.— Where one of the joint and several debtors has become insolvent before any payment, the creditor can have himself included in the liquidation of his estate for the full amount of his claim. So much as is not thus paid is due to him by the other debtors, but without their right of recourse for any payment made in excess of their share being able to prejudicially affect other creditors included in such liquidation.

Art. 1069.— If one or more part payments have been made before one of the debtors becomes insolvent, the creditor is only included in the liquidation of such debtor's estate for the balance remaining due, and the debtor or debtors who have made the part payments can claim concurrently with him in the liquidation for reimbursement of what is due to them in conformity with Art. 1064.

Art. 1070.— In the case of all or of several of the joint and several debtors becoming insolvent, before any part payment has been made the creditor is to get himself entered in each liquidation for the full amount of his claim; when, however, he has received a first dividend from one of the liquidations, the further dividends that are awarded to him in the other liquidations on the basis of the full amount of his claim are only to be paid to him in proportion to what is still due, the surplus forms a special fund to indemnify the different liquidations in proportion to what they have paid in respect of the total amount of the nominal debt.

SUBSECTION 3. TERMINATION OF PASSIVE SOLIDARITY.

Art. 1071.— Renunciation of solidarity by the creditor in respect of all the debtors leaves the obligation still subsisting as aq obligation in common between them, such as the same is regulated by the first paragraph of Art. 458, and docs not change its other characteristics.

Art. 1072.— Where renunciation has only taken place with respect to one or more of the debtors, either expressly or tacitly, in conformity with Art. 532, the other debtors arc only discharged to the extent of the share of those in whose favor solidarity has been relinquished. Where amongst the debtors not discharged from solidarity there are some who are insolvent, the creditor has to bear in such insolvency the share of those he has released.

Art. 1073.— Where the creditor has destroyed or allowed to perish all or part of the securities furnished by one of the joint and several debtors to which the others could have become subrogated on making payment, the said debtors can demand to be relieved from solidarity for the share of the one in respect of whom the cieditor has lost the securities. A discharge thus decreed has the same effect as a voluntary release from solidarity.

SUBSECTION 4. OBLIGATIONS THAT ARE INTEGRAL ONLY.

Art. 1074.— In the case of Arts. 152, 398, the second paragraph of Art. 519 and all other articles where the obligation of two or more debtors is declared by law to be integral or for the whole, no grounds exist for applying to such debtors those effects of joint and several liability which are attached to reciprocal mandate, and notwithstanding that all or some of them may have been ordered by judgment to pay the whole. Payment, however, made by any one of them releases all the others with regard to the creditor, and the one who has paid has his right of recourse against the others for their share, either by action on the ground of voluntary management of another, or by any action belonging to the creditor to which he has as of right become subrogated.

SECTION II. ACTIVE SOLIDARITY OR JOINT AND SEVERAL RIGHT OF CLAIM BETWEEN CREDITORS. SUBSECTION 1. NATURE AND CAUSES OR ACTIVE SOLIDARITY.

Art. 1075.— Solidarity between the creditors of one and the same debtor constitutes them representatives for each other for the maintenance and exercise of their right. It can only result from the express terms of an agreement, from a will, or from a provision of law.

Art. 1076.— it is not necessary that the liability of the debtor towards the different joint and several creditors should have been contracted by one and the same instrument nor at one and the same time or place, provided that the subject-matter and cause of the obligation are the same. The debtor can also be Itou nd towards the different creditors under forms and burdens that are different and unequal.

SUBSECTION 2. EFFECT OF ACTIVE SOLIDARITY.

Art. 1077.— Each of the joint and several creditors can claim from the debtor integral performance of the obligation, as if he were sole creditor. Where proceedings have been instituted by one of the creditors, each of the others can intervene in the action for the protection of the general interests as well as of his own.

Art. 1078.— The debtor on his side can require any one of the creditors to receive integral payment of the debt so long as proceedings or demands for payment have not been instituted or preferred against him in due form by another creditor; in such case payment can only be made to the claimant. If two or more demands have been preferred at the same time the debtor can only make payment to the united claimants.

Art. 1079.— A judgment rendered on pleas based on defect in the formation of the obligation is binding in respect of the whole debt for all the creditors, whether it be favorable to them or not, and including those, if any, who have not by name been made parties to the action.

Art. 1080.— Where a judgment has been rendered on pleas based on grounds operating the extinguishment of the obligation, it only has effect so far as concerns creditors who have not been made parties to the action subject to the distinctions following : 1. Payment made to one creditor, under the conditions in Art. 1078 provided, can be set up for the whole against all the creditors ; the same applies to a right of set-off acquired by the debtor against one of the creditors in manner in the third paragraph of Art. 544 mentioned, provided that the causes giving rise thereto originated at a period when the debtor could have validly made payment to such creditor in conformity with Art 1078. 2. Novation, conventional release, or confusion, arising from the act of a single creditor, or from his individual rights, docs not, in conformity with the third paragraph of Art. 523, the first paragraph of Art. 537, and the second paragraph of Art. 557, produce extinguishment of the debt except for the share of such creditor; the above is, however, subject to the condition that such transactions have taken place before any proceedings or claims have been instituted or preferred by any other creditor ; the same applies to the taking or refusal of any extra-judicial oath or to any compromise with respect to such transactions or to payment or set-off.

Art. 1081.— A judgment rendered on a plea which the debtor is entitled to set up against some individual creditor docs not benefit of prejudicially affect the others ; the same applies to the taking or refusal of an oath or to a compromise that has taken place between the debtor * and one of the creditors in respect of the right of the latter to solidarity.

Art. 1082.— Acts of a creditor which interrupt prescription as against the debtor or constitute him in arrear benefit to their full extent the other creditors. Suspension of prescription established by law in favor of any one creditor only benefits him alone, and only for his share in the right of claim.

Art. 1083.— Where one joint and several creditor dies leaving several heirs, division of the right of claim, and of the effect of the above mentioned acts, takes place actively, in the same way as is mentioned in Art. 1062 in the case of passive solidarity.

Art. 1084.— A joint and several creditor who has obtained performance in full or in part of the obligation must share the benefit thereof with the other creditors according to their special relations and respective shares in the interests common to all.

SUBSECTION 3. TERMINATION OF ACTIVE SOLIDARITY.

Art. 1085.— Active solidarity is terminated by renunciation, but the same must be express.

Art. 1086.— Solidarity can be renounced by one or more of the creditors or by all. Renunciation by all the creditors of active solidarity produces between them the same effect as is produced with respect to co-debtors by renunciation of passive solidarity and such as the same is regulated by Art. 1067. Where only one or more of the creditors has renounced, the others are only deprived of their right to sue or to receive payment in respect of the share of those who have renounced.

Art. 1087.— Solidarity can be validly renounced without the consent of the debtor. Nevertheless, such renunciation cannot be set up in respect of payments or other acts which he is by the preceding provisions permitted to do unless the same has been notified to him or has come to his knowledge in some definite manner. The debtor can always rely on a renunciation, if he finds it is in his interest to do so. He may also take exception to it, if it has been made in fraud of his rights.

CHAPTER III. VOLUNTARY INDIVISIBILITY.

Art. 1088.— Independently of indivisibility resulting either from the nature of the subject matter due, from the object that the contracting parties have had in view, or from the debt having by the title creating the obligation been assigned to the burden of one only of the debtors, as mentioned in Arts. 462 and 463, a debt can still be indivisible, either to the burden of several debtors or to the benefit of several creditors and cither in addition to or without passive or active solidarity, for the purpose of securing or guaranteeing integral performance as mentioned in Art. 464. Such indivisibility can be created by agreement or by will and is called “voluntary.” In cither case it must be express.

Art. 1089.— When voluntary indivisibility has been expressly created to the burden of debtors or the benefit of creditors, solidarity of a like description is to be considered as tacitly created unless there be a provision to the contrary.

Art. 1090.— Voluntary indivisibility is only passive, that is it only applies so as to burden the debtors; it does not take place in favor of the creditors unless it be expressly provided that it is at the same time active On the other hand indivisibility created in favor of the creditors does not operate to the burden of the debtors unless it be at the same time declared to be passive.

Art. 1091.— Where voluntary indivisibility, whether passive or active, has been expressly created, the same first produces between the original debtors or creditors the effect of passive or active solidarity if such has not been expressly excluded. Further, if one of the debtors or creditors dies leaving several heirs, performance can still be insisted on integrally against each heir of the debtor or by each heir of the creditor, but without solidarity between them.

Art. 1092.— Causes which interrupt prescription as against one of the original debtors or one of the heirs of a deceased debtor also produce such interruption for the whole debt as against the other debtors or heirs. Causes either of interruption or of suspension of prescription, arising in the individual right of one of the original creditors or one of the heirs of a deceased creditor, operate in favor of the other creditors or heirs.

Art. 1093.— Neither the constituting in arrear nor any fault of one of the heirs prejudicially affects the other heirs. The same applies to any thing adjudged unfavorably for one of the heirs or to any similarly unfavorable admission or extrajudicial oath.

Art. 1094.— Where the claim is at one and the same time joint and several and indivisible, either actively or passively, renunciation of solidarity whether express or tacit, according to the distinctions made in Arts. 532 and 1085, carries with it the renunciation also of voluntary indivisibility. In such a case of accumulation of both securities, renunciation of indivisibility leaves solidarity still subsisting.

Art. 1095.— The dispositions of Arts. 465 to 470, the fourth paragraph of Art. 523, the third paragraph of Art. 528, the first paragraph of Art. 531, Art. 535, the second paragraph of Art. 537, the fourth paragraph of Art. 543, An. 558 and the second paragraph of Art. 559, treating of natural indivisibility, are applicable in so far as circumstances admit to voluntary indivisibility. Art. 1073 can be relied on by debtors who are indivisibly bound against a creditor who has allowed the securities which might have been transferred to them by subrogation to perish or to become less.

PART II. REAL SECURITIES OR GUARANTIES. CHAPTER I. LIEN OR THE RIGHT OF RETENTION.

Art. 1096.— Independently of those cases in which the right of retention is recognized as belonging to a creditor by special provisions in Books II and III of this Code, the same right belongs to every creditor over property, whether movable or immovable, of the debtor of which the creditor is already in possession by virtue of some lawful cause, and where his claim is connected with such possession or arises in respect of such property in consequence of an assignment made by him thereof, or of expenses incurred in its preservation, or of damage caused by it for which the owner is responsible. A person who has managed the affairs of another without mandate is entitled to a right of retention over property of which he has undertaken the management in respect of necessary expenses and expenses of keeping only.

Art. 1097.— If the creditor has only retained a part of the things that he had a right to retain, the part kept guarantees the whole debt if it suffices therefor. On the other hand, the creditor or his heirs can keep, until payment in full, all the things subject to their right, although they may have been paid in part by the debtor or his heirs.

Art. 1098.— A right of retention does not give the creditor a right of privilege over the money value of the thing. Where the thing retained yields either natural or civil fruits or produce, the creditor can collect them in preference to other creditors, and must apply them in the first place to payment of the interest of his claim and then to the principal. He is answerable for fruits and produce that he has neglected to get in.

Art. 1099.— A right of retention does not prevent the debtor from disposing of the thing retained, nor even other creditors from being able to seize it and have it sold, unless it be a thing that is not liable to seizure. In neither case, however, can the acquirer enter into possession without satisfying in full the retention creditor.

Art. 1100.— A creditor retaining a movable or immovable is in other respects submitted to the same responsibility as a pawn creditor or a creditor with a right of antichresis in the manner regulated in the two following Chapters. The other dispositions relating to pawn and antichresis are applicable to a right of retention in so far as there is in this Chapter nothing contrary thereto; in particular the right of retention is lost when the creditor has voluntarily neglected to exercise it effectively or has ceased to do so.

CHAPTER II. PAWN OR THE PLEDGING OF MOVABLES.

SECTION I. NATURE AND FORMATION OF THE CONTRACT OF PAWN.

Art. 1101.— Pawn is a contract by which a debtor specially provides as security for his obligation one or more movables.

Art. 1102.— A contract of pawn can also be made between the creditor and a third person who provides the security on the debtor's behalf, either under mandate from the debtor or of his own free will. In cither case the third person providing the pawn has his right of recourse against the debtor in the same manner as a surety, and in conformity with Arts. 1030 and 1031.

Art. 1103.— Whether the pawn has been given by the debtor or by a third person, if the obligation thus secured is purely natural, the case is governed by Arts. 588 and 589.

Art. 1104.— Pawn can only be validly effected by a person having capacity to dispose of the thing given in pledge The same applies to conventional, legal, and judicial mandatories and administrators, who must, moreover, keep within the limits of their mandate. If the pawn has been furnished by a third person who is not interested in the debt, he must have capacity to dispose gratuitously of his property as is in Art. 1012 mentioned.

Art. 1105.— The right of pawn can not be set up against third parties who have dealt with the debtor in reference to the same things, or against his other creditors, unless a document in writing has been prepared bearing a specified date and setting forth clearly an exact mention of the principal claim and its accessories, if any, as well as that of the objects given in pawn. The said objects must be described, and in case of need valued, so that their identity cannot be changedIf they are things of quantity they must be mentioned by their kind, and quantity, and their weight, number, or measure.

Art. 1106.— The preparation of a written document is not required in those cases in which, by law, the claim can be proved by witnesses ; in this case their testimony either together with other evidence or by itself can establish the amount of the claim, and the identity, nature, and value of the things given in pawn.

Art. 1107.— A pawn cannot either be set up against third persons or other creditors, unless the pawn creditor has been put and has remained in actual and continuous possession of the corporeal things appropriated to the pledge. The deposit thereof can, however, be made in the hands of a third person chosen cither by the parties, or by the creditor upon his own responsibility. These provisions apply also to documents of claim payable to bearer.

Art. 1108.— Where the thing pawned consists of a nominative right of claim, the pawn creditor must be put in possession of the authentic or private document or documents of title which arc evidence of it. It is, moreover, necessary that the creation of the pawn should be notified to the original debtor in the usual form for notifying assignments of transfer, or that such person should voluntarily become a party to the transfer thus made by way of security. Art. 367 is applicable to such transfer for its remaining provisions: but this article is without prejudice to what is laid down in the Commercial Code with reference to securities that arc negotiable by indorsement.

Art. 1109.— In the case of a nominative share or obligation in a civil -or commercial association, the transfer by way of security must, apart from the handing over of the documents of title, be notified to the association and inscribed in its registers in the form required by the statutes of such association or by law in the case of assignment of shares or obligations.

Art. 1110.— A pawn is, in accordance with the presumed intention of the parties, indivisible actively as well as passively, but without prejudice to any express agreement to the contrary. It continues in force over all and each of the things given as security until payment in fell of principal, interest, and costs, and notwithstanding that the debt may have been paid in part by the debtor or by one of his heirs. Where one of the heirs of the creditor has been satisfied in respect of his sliare, the pawn remains appropriated in its entirety as security to the other heirs for their share in the claim.

SECTION II. EFFECT OF THE CONTRACT OF PAWN.

Art. 1111.— The pawn creditor is bound to devote to the looking after and preservation of the thing until it is returned all the care of a good administrator. He can not let it without being authorized so to do by the debtor, nor can lie without a like authorization employ it for his own personal use, unless such user is the natural way of keeping it in good order, and preserving it. He can be declared to have forfeited his right if he abuses it.

Art. 1112.— He can himself give it in pawn to one of his own creditors but at his own risk in, which are included cases of inevitable accident and irresistible force if the same would not otherwise have happened.

Art. 1113.— Where the thing renders fruits or produce, the pawn creditor has, in regard thereto, the rights, and obligations laid down in the second paragraph of Art. 1098 for creditors exercising a right of retention. In the case of a right of claim having been given in pledge, he also receives the interest accruing therefrom with right to appropriate the same to payment of his own claim ; but he is not entitled to receive the principal without the special authority of his debtor, except in the case of a document of claim that is negotiable by endorsement.

Art. 1114.— If the pawn creditor has incurred necessary expenses in keeping the thing in good order or preserving it, reimbursement thereof is secured by the pawn in preference to the claim itself. The same applies to indemnity for any damage he may have sustained in consequence of non-apparent defects in the thing.

Art. 1115.— The pawn creditor can retain possession of the thing pawned as against the debtor and his assignees, until payment in full of principal and accessories of the pawn debt, as well as of all sums due to him in accordance with the preceding article. So long as his claim has not become due, he can object to seizure and sale by auction of the thing pawned by other creditors of the debtor.

Art. 1116.— In default of the debtor fulfilling his obligation when the pawn debt becomes enforceable, sale by public auction of the thing pledged can be applied for by the pawn creditor or by any other creditor, and the pawn creditor is to be paid in preference to the other creditors whatever is due to him both in respect of principal, interest, and expenses, as well as by way of indemnity for the causes mentioned in Art. 1114.

Art. 1117.— Where sale by auction has not been applied for by the other creditors, or where it cannot take place, the pawn creditor, if he cannot arrange with the debtor, can demand the Court, upon an application which has been communicated to the latter, to order that the thing pawned be allotted to him by way of payment, in so far as its value as estimated by experts will suffice. In case the value of the thing pawned is in excess of the pawn debt, the creditor must pay over such excess to the debtor.

Art. 1118.— Every provision of a contract of pawn and every agreement entered into prior to the debt becoming enforceable, whereby the creditor is empowered to keep the thing pledged in lieu of payment either of whole or of part of his claim without having it valued judicially, is void as of course. Sales made by a debtor to his creditor with a right of repurchase, whether there be insufficiency of consideration or not, or whether the thing sold be leased to the debtor or not, and all other agreements made with a view to elude such prohibition may be declared void. The grounds of nullity prescribed by this article cannot be set up by the pawn creditor but only by the debtor or those entitled under him.

Art. 1119.— The mere fact that the thing pawned remains in the hands of the creditor docs not suspend in his favor the running of liberatory prescription in favor of the debtor.

Art. 1120.— Possession of the thing pawned is always precarious, and acquisitive prescription cannot be set up by the pawn creditor whatever may have been the length of his possession, and notwithstanding that the debt has been extinguished by payment or otherwise. Nevertheless, the precarious character of the possession terminates in the two cases provided for in Art. 197.

CHAPTER III. ANTICHRESIS, OR THE PLEDGING OF IMMOVABLES.

SECTION I. THE SUBJEST-MATTER, NATURE, AND FORMATION OF ANTICHRESIS.

Art. 1121.— A contract of antichresis gives to the antichresis creditor the right to receive the fruits and revenue of an immovable in preference to other creditors, but on condition that he appropriates the same to payment of the interest of his claim and subsidiarily, if any balance remains, to payment of the principal, or if his claim does not bear interest then that he appropriates the whole to the principal.

Art. 1122.— Antichresis can be created by a third person on behalf of the debtor: it produces as between the debtor and such person the consequences determined by Art. 1102 for a pawn created in the same manner.

Art. 1123.— Antichresis can only be created by the person who is owner of the immovable or by some one who has at the least a real right, as extensive or greater than the antichresis, to the enjoyment of the premises as usufructuary, emphyteuticary, lessee or tenant, or even as antichresis creditor, and has legal capacity to dispose thereof according to the distinctions mentioned in Art. 1104 in the case of pawn. Antichresis cannot in any case exceed the length of the right of enjoyment of the person creating it.

Art. 1124.— Antichresis can only be set up against third persons dating from the time when it has been made public, in conformity with Art 368 (1) and (3), by transcription either of the instrument in writing that establishes it, or of the judgment declaratory of the existence of the verbal agreement which constituted it.

Art. 1125.— The transcribed instrument or judgment must contain, in addition to the exact designation of the immovable given in antichresis, the amount of the claim both in principal and interest. In case of insufficiency in such description the same can be amended by the noting of a supplementary agreement in the margin of the transcription already made.

Art. 1126.— If the real right given in antichresis is a usufruct, or a right of lease, of emphyteusis, or of prior antichresis it is sufficient that the antichresis should be noted in the margin of the transcription of the instrument establishing such right.

Art. 1127.— The antichresis creditor must, moreover, be placed and must remain in actual possession of the immovable right guaranteeing his claim, as mentioned in Art. 1107 when treating of pawn.

Art. 1128.— Antichresis is indivisible both actively and passively as mentioned when treating of pawn in Art. 1110.

SECTION II. EFFECT OF ANTICHRESIS.

Art. 1129.— The antichresis creditor can lease the premises or the right which he has received as security for his claim within the limits laid down in Arts. 126 to 129. He can also himself give it in antichresis, but only for so long as his right continues and at his own risk, in manner mentioned in Art. 1112 in the case of pawn.

Art. 1130.— He is bound to pay all contributions and other annual charges on the revenue. He is also bound under pain of damages to do all ordinary repairs as well as any important repairs, that are necessary and urgent.

Art. 1131.— Before appropriating fruits and revenue to his claim, the creditor can deduct therefrom the said payments, as well as expenses of cultivation and management. Nevertheless, the parties can agree that the fruits and gross revenue shall be appropriated in a lump as payment of the interest of the claim ; such agreement, however, can be disputed by the debtor or his creditors, if the antichresis creditor derives therefrom a benefit considerably and evidently greater than the interest allowed by law; in such case the benefit derived is to have the excess deducted.

Art. 1132.— The creditor can at any time, and notwithstanding any agreement to the contrary, renounce for the future his antichresis, if it appear to him to be too onerous.

Art. 1133.— The antichresis creditor can retain possession of the premises, or of the right subjected to antichresis, until payment in full of what is due to him both on account of principal and accessorily. lie cannot, however, object to a sale, cither by private arrangement or by public auction, being effected by the debtor or by his other creditors either before or after the debt has fallen due; but the acquirer is in either case bound to respect his right of retention.

Art. 1134.— If the creditor has at the same time a privilege or a mortgage over the premises subject to his right of antichresis, he can, in case of sale, take advantage in his proper rank of the said grounds for preference without losing his right of pledge in respect of any balance that may still be due to him. If, however, he has himself brought about the sale by auction, his right of antichresis is extinguished, unless the same has at the time of sale been expressly reserved.

Art. 1135.— Arts. 1111,1114,1115,1118, 1119, and 1120 are applicable to an antichresis creditor as well as to a pawn creditor.

CHAPTER IV. PRIVILEGES.

PRELIMINARY PROVISIONS.

Art. 1136.— Privilege is. in the absence of any conventional pledge, a right of preference attached to the causes that give rise to certain claims. Privileges only exist for such causes, under such conditions, and in regard to such things, as are specially determined by law. The cases in which privilege gives a right to follow against third holders, and the conditions of the exercise of such right arc also determined by law.

Art. 1137.— Privileges arc indivisible both actively and passively, as is mentioned in Arts. 1110 and 1128 in the case of pawn and antichresis.

Art. 1138.— If things charged with privileges have perished or have suffered deterioration at the hands of third persons, and an indemnity is due in respect thereof to the debtor, the privilege creditors can enforce, in preference to the other creditors, the right of the debtor to such indemnity, provided that they have, before payment, lodged an objection thereto in proper and due form. The same applies where a thing subject to privilege has been sold or leased, and to every case where grounds exists for payment to the debtor of a sum of money or of money value in consequence of the exercise of legal or conventional rights in respect of such thing; without prejudice, however, to what is said in Art. 839 with reference to the indemnity due by insurers in case of accident.

Art. 1139.— Privileges arc : 1. General, or over all the movables of the debtor and subsidiarily over all his immovables; 2. Special, over certain movables ; 3. Special, over certain immovables.

Art. 1140.— The respective rank of creditors having general or special privileges is regulated in the first three Sections of this Chapter. Creditors with privilege over immovables have priority of creditors with a mortgage over the same immovables, except in cases in which it is otherwise provided by law. Creditors with the same title to privilege or in the same rank arc paid in proportion to the amount of their claims.

Art. 1141.— The privileges established by this Code are not to prejudice those which are or may be established by the Commercial Code or by Special Laws in favour either of private persons or of the public treasury. Such privileges are, however, governed by the general rules hereinafter laid down in regard to every point for which there may be no provision to the contrary.

SECTION I. GENERAL PRIVILEGES OVER MOVABLES AND IMMOVABLES. SUBSECTION 1. THE CAUSES GIVING RISE TO GENERAL PRIVILEGES.

Art. 1142.— Claims that have a privilege over movables and immovables, within the limits and subject to the conditions hereinafter contained, are: 1. Law costs ; 2. Funeral expenses; 3. Expenses of a last illness ; 4. Wages of persons in service ; 5. The cost of materials of subsistence.

1. Privilege of Law Costs.

Art. 1143.— The privilege of those expenses called “Law costs” belongs to creditors who have made money advances, or to whom is due a remuneration for fees, for any judicial or extra judicial step lawfully taken in the common interest of the creditors, either to assure the preservation of the property of the debtor, or to procure its liquidation and realization, and distribution of the price amongst those entitled. Where certain costs have been incurred in respect of only certain property, or have not been of use to all the creditors, the privilege is only special, and can only be set up against those creditors in whose interest the costs were incurred.

2. Privilege of Funeral Expenses.

Art. 1144.— The civil and religious expenses incurred for the interment, burial, or cremation of the debtor, in so far as the same arc customary having regard to his social position, are privileged. The same privilege also applies to expenses incurred for the funeral of any member of the debtor's family for whose support he is responsible, and who is living with him. It docs not include expenses, although customary, consecutive to the funeral.

3. Privilege of the Expenses of a Last Illness.

Art. 1145.— The privilege of the expenses of a last illness include the expenses of doctors, surgeons, chemists, nurses, and others, incurred at the time of the illness which has preceded either the death of the debtor or of any member of his family designated in the preceding article, or the debtor's bankruptcy or insolvency. In the case of a long illness, the privilege of expenses incurred in respect thereof is limited to those of the last year. The privilege still exists, notwithstanding the debtor or his relative may have died in consequence of an accident, or from some cause other than the illness in respect of which the expenses have been incurred.

4. Privilege of Wages of Persons in Service.

Art. 1146.— The privilege of persons in service belongs to servants attached either to the person of the debtor, or of any relative for whose support he is responsible and who is living with him, or to his house or urban or rural properties. It only secures remuneration or wages for the last 12 months.

5. Privilege of the Cost of Materials of Subsistence.

Art. 1147.— The privilege of the cost of materials only applies to alimentary provisions supplied to the debtor or members of his family living with him, and to his or their servants. It only includes materials supplied during the last 6 months.

SUBSECTION 2. EFFECT AND RANK OF GENERAL PRIVILEGES.

Art. 1148.— General privileges only take effect over the immovables of the debtor for what remains due to the privileged creditors after marshalling them upon the movables. Nevertheless, if the distribution of the monies realized by the immovables precedes that of those obtained for the movables, the creditors can have themselves provisionally marshalled upon the monies derived from the immovables, but upon condition that they only take in such marshalling so much as will be left unpaid by the movables. Creditors, who have omitted to semi in their claims in time to share in the distribution of the price of the movables, forfeit their right of preference over the immovables for so much as they could have received from the movables.

Art. 1149.— In the case of there being concurrence of all or some of the general privileges with each other, they are marshalled in the respective order in which they are numbered in Arts. 1143 to 1147. All claims entering under the same legal denomination such as the same is established by the said articles arc marshalled in the same rank. Where they compete over movables with special creditors, their rank, in respect to these latter, is regulated by Section II hereafter. General privileges have, in the absence of fraud, to give way to special privileges over immovables and to special mortgages, even although these were subsequently created, but they take priority of general mortgages, even although these were acquired before they originated. In the case of simultaneous sale of all the immovables charged with general mortgages, the general privileges are marshalled over all in proportion to the price of sale of each. If the sales of the said immovables take place successively, the general privileges arc to be ranked for their full amount upon the proceeds of the first sale, and subsidiarily upon those of the subsequent sales; apportionment between the immovables is only effected by the means of recourse available to those creditors who have in the first place had to bear the burden of the said privileges.

Art. 1150.— General privileges are absolved from being inscribed over immovables in order to admit of their being set up against other creditors, so long as such immovables belong to the debtor.

SECTION II. SPECIAL PRIVILEGE OVER MOVABLES. SUBSECTION 1. CAUSE AND SUBJECT-MATTER OR SPECIAL PRIVILEGES OVER MOVABLES.

Art. 1151.— Independently of the pawn creditor whose privilege is determined by Chapter II here-above, the following have a right of privilege for the claims and (over the movables hereafter designated : 1. Lessors of immovables; 2. Persons supplying seeds or manure ; 3. Agricultural and industrial workmen ; 4. Persons preserving movables; 5. Vendors of movables; 6. Inn and hotel keepers; 7. Carriers by land and water ; 8. Creditors on account of misconduct of a public official, guaranteed by suretyship; 9. Persons who have lent the monies for such suretyship.

1. Privilege of the Lessor of an Immovable.

Art. 1152.— The lessor of dwelling houses, shops, or other buildings has a privilege over the movables placed therein for the use, trade, or industry of the lessee. Privilege takes place even although such objects do not belong to the lessee, if the lessor was ignorant of such fact, and had no sufficient reason to foresee it at the time he became aware the things had been brought into the leased premises. The privilege of the lessor does not extend to ready money, jewelry, or precious stones intended for the personal use of the lessee or his family, or to documents of title to claims even although the same be to bearer.

Art. 1153.— The lessor can require the lessee to keep in the leased premises sufficient movables to guarantee the payment of rent for the current term as well as for a term yet to run ; in default thereof, or in default of payment in advance for the said terms or of other equally good security, he is entitled to have the lease cancelled and to recover damages, if grounds for such exist. If the movables which have been brought into the leased premises have been removed therefrom without the permission of the lessor, but without fraudulent intent, the lessor can only have them brought back if his security has become insufficient, and only in so far as the rights of the lessee to the same extend. Nevertheless, in the case of acts done in fraud of his rights, he can, without prejudice to the right belonging to him by Art. 1138, and under the conditions and distinctions laid down in Art. 361 and following articles, have such acts revoked as against third parties.

Art. 1154.— The lessor of a rural property, whether let at a rent or under an emphyteutic lease, has a similar privilege over movables brought into dwelling houses and into buildings used for working the premises, as well as over animals, agricultural tools, and other implements or machines employed for such working. He has, also, a privilege over the crops and other natural produce of the leased premises, as well over those still attached to the soil as over those that are stored on the said premises. In the case of a mine, mineral surface soil, or a quarry, the privilege attaches over the minerals, coal, stones, and other materials, that have been already extracted, but arc still on the leased premises. The privilege of a lessor under a lease, where rent is payable by a share of the fruits, takes effect over the crops and other produce of the leased premises, by having directly awarded to the lessor in preference to other creditors the share of the produce to which he is entitled, provided that the same is still in the hands of the lessee.

Art. 1155.— The lessee of an emphyteutic lease, as well as a lessee who pays rent in money or in kind, is bound for the security of the lessor to store on the premises the crops and other produce of the current year, if they are of a nature to admit of being kept and if the premises arc suitable or appropriate for such purpose. He cannot in any case remove them, or dispose thereof, without permission of the lessor, unless he has first satisfied his obligations for the current year. The right established in favor of a lessor by Art. 1153 to revendicate objects that have been wrongfully disposed of and to cancel the lease are applicable to a lease of a rural property or. to a lease for any other working of the soil.

Art. 1156.— In the case of assignment of a lease or of subletting, the privilege of the lessor extends over the movables brought upon the leased premises, and notwithstanding that the lessor may be aware that they belong to the assignee or sublessee. In this case, the privilege, in conformity with Art. 1138, extends also over sums due to the original lessee as the consideration for such assignment or sub-letting, and without payments made in advance being able to be set up against the lessor.

Art. 1157.— In the case of general liquidation of the property of the lessee, the lessor, in respect of both rent and other annual charges, only benefits of the privilege provided for in the preceding articles for the last year expired, for the current year, and for a future year still to run. Such privilege gurantees also other conventional obligations resulting from the lease, compensation due to the lessor for fault or neglect of the lessee during the year last expired, and the current year, as well as any damages for cancellation of the lease that he is entitled to have awarded him for the time still to run.

Art. 1158.— The other creditors can prevent cancellation of the lease, and can sublet or can assign the lease for their benefit in spite of any prohibition against subletting contained in the original lease, but they must first secure to the lessor his rent or other income for the time that the lease has still to run.

2.Privilege of Persons supplying Seeds or Manure.

Art. 1159.— Persons who, during the last year, have supplied the owner, usufructuary, lessee, or occupier with seeds or manure to be used on the premises have privilege over the fruits of the crop for which they have furnished such supplies. The same benefit accrues to those who have supplied during the last year silkworms eggs, or mulberry leaves for feeding the silkworms.

3. Privilege of Agricultural and Industrial Workmen.

Art. 1160.— Workmen, other than servants, who have worked in cultivating or harvesting the produce of the current year, have privilege on such produce for the wages that are due to them for such year. The same privilege belongs to workmen who have been employed in working in forests, in mines, mineral surfaces, or quarries, and in silkworm nurseries, but only for the last three months wages of the current year.

4. Privilege of Persons preserving Movables.

Art. 1161.— A person, who is creditor for the costs of repairing or preserving a movable, has privilege over the movable so repaired or preserved, and notwithstanding that he docs not avail himself of the right of retention which belongs to him in accordance with Art. 1096. The same privilege applies to the cost of any judicial or extra-judicial proceeding which has obtained for the benefit of the debtor the recognition, preservation, or realization of personal or real rights to sums of money, things of value, or any other movables whatever.

5. Privilege of Vendors of Movables.

Art. 1162.— A vendor of movables has privilege over the object sold for the price of sale and interest, if any. whether a term has been allowed for payment or not. If there has been an exchange with a difference in value to be paid, and such payment amounts to more than a half of the value of the object parted with, there is privilege for the said difference.

Art. 1163.— Privilege exists so long as the object sold remains the possession of the purchaser and has not been transformed, notwithstanding that it may have been rendered immovable by the purpose to which it has been applied or by incorporation into lan ed property, provided, in this latter case, that it can be detached without injuring the premises.

Art. 1164.— The privilege of a vendor does not prejudice his rights of retention or cancellation, as provided for in Arts. 684 and 721.

6. Privilege of Inn and Hotel Keepers.

Art. 1165.— An inn or hotel keeper has privilege over the effects thought by travellers, and still remaining in his inn or hotel, lor his claim for the lodging and board of such travellers and of the servants and animals of burden or draught accompanying them.

7. Privilege of Carriers by Land or Water.

Art. 1166.— The privilege of carriers by land or water, whether traders or not, takes effect over the objects conveyed by them, either with or without travellers and still in their hands, for the price of transport of such luggage or merchandise, and of the persons travelling with it, and for the price of their food, if any has been supplied, as well as for custom house dues or other legitimate accessory disbursements. This privilege remains in force, even after delivery of such objects, if, within 48 hours thereof, the carrier has called upon the debtor, or the person who has received the objects in his name, to restore to him the possession of the same, or to pay what is owing, and has lodged with the Court so soon as is practicable a petition in order to give effect thereto. In no case, however, can a claim for the return of the objects lie against third persons, except in the case of fraud as provided for by Art. 1153, but without prejudice to the application of Art. 1138.

8. Privilege of Creditors for Official Misconduct.

Art. 1167.— Claims resulting from misconduct, faults, or breach of trust, committed in the discharge of their duties by public officials guaranteed by suretyship haw a privilege over such suretyship.

9 Privilege of Lenders of Suretyship Monies.

Art. 1168.— If the monies deposited in a case of suretyship have been lent by third persons, who have made good their right in conformity with the Regulations either at the time of making the loan, or before any opposition has been raised to its repayment, such persons have a privilege over the said suretyship in second rank as mentioned in Art. 1172.

SUBSECTION 2. RANK OF SPECIAL PRIVILEGES OVER MOVABLES.

Art. 1169.— Where there is conflict between special privileges over movables and all or part of the general privileges, priority is regulated as follows. 1. Law costs rank before all creditors to whom they have been of benefit to the extent and proportion in which they have been so; 2. The four other general privileges rank equally, in proportion to their respective importance and in the order of Art. 1141, before all special privileges, but only in case that the movables not subject to other privileges arc insufficient.

Art. 1170.— Where the conflict arises between different creditors having a special privilege over the same movable; they have preference respectively in the order and under the distinctions following: In the first place comes the creditor who has preserved the subject-matter of the privilege; if there arc several creditors in consequence of successive acts of preservation, the preference belongs to those respectively whose acts of preservation are the most recent ; In the second place is the creditor who has the object in pledge either under an express or conventional pawn, or under an implied pawn as in the case of the lessor of an immovable, an inn-keeper, or a carrier. In the third place is the vendor of the said object. Nevertheless, the pledge creditor is entitled to the first place, if he was unaware at the time of the creation of his pawn that the costs of preserving the said object were owing. On the other hand the pledge creditor has to give way to the vendor, if he was aware that the price of sale was still due. In the case of crops, the first place belongs to the agricultural workmen, the second to the persons who have supplied seeds or manure, and the third to the lessor of t he premises. Industrial workmen rank in like manner before the lessor over the produce of mines, quarries, and other workings of the soil for purposes of extraction or industry. In the case of the suretyship of a public official, his creditors for misconduct rank together and in proportion to their respective claims and without regard to their date ove rall other creditors, including the creditor who has lent the monies for the suretyship; the latter is entitled to a privilege, called of the second rank, over the rest of the suretyship.

SECTION III. SPECIAL PRIVILEGES OVER IMMOVABLES. SUBSECTION 1. THE CAUSE AND SUBJEST-MATTER OF SPECIAL PRIVILEGES OVER IMMOVABLES.

Art. 1171.— The following have privilege over immovables for the claims and under the conditions hereinafter determined : 1. Alienors of immovables, whether by sale, exchange, or other onerous means, or even gratuitously if subject to burdensome conditions, over the immovables disposed of ; 2. Coparceners over the immovables included in the partition ; 3. Architects, engineers, and contractors, over the increased value resulting from their works on immovables; 4. Lenders of money which has at the time of the transaction giving rise to privilege been paid in whole or in part to the alienor, coparcener, or creditor for works, over such immovables ; 5. Creditors and legatees of a succession, demanding separation of the deceased's estate from property of the heir, over the immovables of such succession.

1. Privilege of Alienors.

Art. 1172.— The privilege of an alienor belongs: 1. To a vendor for the fixed price of sale, whether it be a sum in principal or a perpetual or a life annuity, as well as for interest or periodical payments, and other burdens imposed by the sale; 2. To a person making an exchange for the money difference which may be due to him, and any burdens he may have to bear, as well as for the guaranty against any eviction he may sustain in respect of the objects received in exchange ; 3. To a donor, or those entitled under him, for the burdens imposed by the donation; And generally to every alienor of immovables, whether disposed of onerously or gratuitously, for the certain or contingent counter-value that may be due to him, as well as for the burdens imposed on the acquirer.

Art. 1173.— In addition to the price of sale and the difference payable in case of exchange, the burdens imposed by these alienations as well as those imposed by donations, and the contingent indemnity payable under the guaranty against eviction in cases of exchange and other onerous agreements, must be fixed in money either by the instrument of alienation itself or by a later and separate instrument. Such documents must, moreover, be made public in manner mentioned in the following Subsection.

Art. 1174.— The privilege for guaranty against eviction in the case of immovables received by way of counter-value under an exchange is not effective, unless eviction has taken place within ten years from the time of the exchange, and unless, eviction having once taken place by virtue of a judgment that is no longer subject to revocation, the claim on ground of guaranty has been lodged and made public within a year thereafter. With respect to movable rights received as counter-value, the privilege of guaranty is not effective, unless the eviction has taken place within one year and the claim has been lodged and made public within one month from the time when the judgment became no longer subject to attack.

2. Privilege of Coparceners.

Art. 1175.— Coheirs, partners, or other joint co-owners have privilege respectively over the immovables obtained by the others in the partition, whether effected by drawing by lot, by division, by agreement, or by partition sale, for claims that such partition has given birth to, namely: 1. For the difference in value payable on a lot, over the immovable that has fallen to the coparcener who lias to make such payment; 2. For the price of the petition sale, over the immovable sold : 3. For the guaranty in case of eviction of one of the coparceners from his lot, over all the immovables that have fallen to the share or been assigned to the others, but only to the extent of each one's share in the obligation.

Art. 1176.— Such guaranty applies to an eviction sustained by a coparcener from movables that have fallen to him by the partition as well as from immovables. It applies also: 1. To the insolvency of a coheir or coparcener bound toward another with payment of a difference in value or of the price of the partition sale; 2. To the insolvency of a debtor of the succession, or of the partnership in liquidation, and whether a coparcener or a stranger, when the right to claim his debt has been put into only one or only some of the lots and such debtor was already insolvent at the time of partition.

Art. 1177.— Art. 1174 is applicable between coparceners to the privilege of the guaranty against eviction. In the case of the insolvency of a debtor, whether a coparcener or not, the guaranty against the same is not due, either between the parties themselves as well as with respect to third persons, unless the demand has been lodged and made public within one year from default of payment of all or part of the principal that has fallen due. If the debt consists of a perpetual or a ilfe annuity, the guaranty is no longer in force if the insolvency of the debtor has not happened within 10 years from the date of the partition. The same applies where the debt consists of a principal sum bearing interest, and does not become due within 10 years from the partition.

3. Privilege of Architects, Engineers, and Contractors of Work.

Art. 1178.— Architects, engineers, and contractors have a privilege for their claim arising out of works directed or executed by them for the construction or repair of buildings, terraces, dikes, or canals, for the drainage, irrigation, reclaiming, or filling up of tends, and for all other works of an analogous character made on the soil. The same privilege belongs to engineers and contractors for subterraneous or surface works relating to either the opening or working or to the closing or abolition of mines, mineral surfaces, or quarries.

Art. 1179.— The privilege resulting from the above mentioned works only takes effect over the increased value given to the land or buildings by such works and still existing at the time of exercising such privilege. The said increased value must be established by means of three reports to be prepared by an expert appointed by the Court. The first report must be drawn up before the commencement of the works. It must show the actual condition of the premises and indicate generally the projected works. The second must be drawn up within three months of the completion of the works, or of their being stopped for any cause whatever, and notwithstanding that their acceptance may have been disputed or delayed, and must show the amount of increased value that has actually resulted from such works. The third must be drawn up at the time of demand for marshalling creditors, and must show how much of such increased value still remains.

4. Privilege of Persons Lending Money.

Art. 1180.— The privileges laid down in the preceding articles belong directly and by Virtue of law to those who at the time of the alienation, partition, or contract with architects, engineers, or contractors have lent money for payment of the price in case of sale or partition sale, for payment of difference in value in case of exchange or partition, or for payments made on account of works; in every case, however, the loan and its employment must have been mentioned in the transaction to which they relate. If such money has only been furnished after privilege has arisen in favor of alienors, coparceners, or creditors for works, such privilege is only acquired by the lenders in so far as they have obtained by agreement subrogation from the creditor or from the debtor under the conditions and in the form prescribed by Arts. 502 and 503. In cither case if the lender of the money has only paid the debt in part, he ranks in conformity with Art. 508 along with the principal or original creditor in the exercise of the privilege in proportion to the extent that he has satisfied him.

5. Privilege of the Right of Separation in the ease of the Estates of Deceased Persons.

Art. 1181.— The conditions to which arc subjected the rights of creditors and legatees of a succession to demand separation of the estate of the deceased from the property of the heir are regulated in the Chapter on Successions.

Art. 1182.— The privileges of alienors, coparceners, and creditors and legatees who have demanded separation of an estate do not extend to any increase or improvement that has been made to the immovables by the act or by means of the debtor and at his expense.

SUBSECTION 2. THE EFFECT AS BETWEEN CREDITORS AND THE RANK OF SPECIAL PRIVILEGES OVER IMMOVABLES.

Art. 1183.— The privileges specified in the preceding Subsection cannot be set up against other creditors except in so far as the same have been made public and preserved by the means, under the conditions, and within the limes hereinafter determined.

Art. 1184.— The privilege of vendors and of persons making exchange for the price of sale and for the difference in value is preserved by transcription of the document of title transferring the ownership and mentioning that the price or difference in value is still due in whole or in part. Transcription of such title preserves also the privilege for the guaranty against eviction in the case of exchange, and for the accessory burdens imposed by the sale, exchange, or other contract passing the ownership, provided that such guaranty and burdens have had their value estimated in money in the document itself.

Art. 1185.— The privilege of coparceners is preserved by transcription of the document declaratory of ownership that effects judicial or extra-judicial partion, and which contains mention of the amount of the price of partition sale, or of the difference in value payable on the lots, as well as the estimated value of the guaranty against eviction and of the other fixed or contingent burdens attached to each lot.

Art. 1186.— So long as the said instruments of alienation or of partition have not been transcribed, any real security conferred by or derived from the acquirer or copareener, with the exception of privileged claims resulting from works done, cannot be set up against a creditor entitled to privilege or to those claiming under him by either a general or a special title, and notwithstanding that the right has been made public; any persons interested can, however, at any time, and even without the consent of the original contracting parties, have such transcription made.

Art. 1187.— If the document transcribed, whether of alienation or partition, does not contain mention that the counter-consideration is still due in whole or in part, or that there arc burdens attached to it, such omission can, so long as the debt is existing, lie rectified by a subsequent document, and the same can be made public by the creditor together with the document of alienation. If the said document has not been made public with the transcription, the alienation can always be made known by inscription of its material parts, according to the form determined in the Chapter on Mortgages; the privilege, however, in such case becomes lowered to a mere legal mortgage. Such mortgage cannot be set up against third persons, who, in the interval between the two publications, may have acquired in right of the debtor, and duly made public, real rights over the immovable transferred to him. The same applies where the burdens imposed by the transcribed instrument of alienation or of partition, or the contingent claim of guaranty, have only been estimated in value in a document subsequent to the principal one. The inscription of such document by way of mortgage only confers rank on the creditor from the date of its being made.

Art. 1188.— Where the privilege of vendors and other alienors, or of coparceners, becomes lowered to a legal mortgage, an action for cancellation for non-performance of obligations cannot be brought to the prejudice of third persons, who before inscription of the said mortgage have acquired through the title of the debtor and have duly preserved real rights over the immovable, which is the subject-matter of alienation or partition.

Art. 1189.— The privilege of architects, engineers or contractors of works is preserved by inscription of the two first reports required by Art. 1179. The first, stating the actual condition of the premises and setting out the works to be done, must be inscribed before the works are commenced; the second, stating the increased value resulting from such works, whether completed or stopped, must be inscribed within a month from preparation of the same within the time fixed in the said article. The effect of the inscription of the second report operates from the date of the inscription of the first, and secures to the privileged creditor priority over the increase in value against all persons who have contracted with the debtor either before the works were done or subsequently. Inscription of the said reports made by one of the parties interested benefits the others although done without any man date from them, and secures to all the same rank for proportionate payment of their claims, provided that they have furnished in proper time the necessary proofs in support.

Art. 1190.— If inscription of either of the reports has not been made within the time allowed therefor by the preceding article, the privilege is lowered to a legal mortgage and its rank over the increased value is determined as follows: 1. At the date of the late inscription of the first report, if the second has been prepared within three months of the completion or stoppage of the works and inscribed within the month following; 2. At the date of the inscription of the second report, if it has not been prepared within the said three months, or if, having been prepared within the said three months, it has not been inscribed within the month following.

Art. 1191.— The privilege belonging, under the conditions of the first paragraph of Art. 1180, to persons, who have at the commencement lent money for purchase, partition, or works, is preserved in the same manner as that of the creditors whose place they have taken. It they have subsequently succeeded to such creditors by subrogation, and the making public of the privilege has not yet taken place, they are to make the same effective by transcription or inscription of the original document of title and of the document of subrogation. If the making public has preceded subrogation they are to request that the instrument of subrogation be noted in the margin of the document transcribed. The same publicity is to be given by the assignees of privileged claims. In these two latter cases the person subrogated or the assignee who has delayed to have the required noting made cannot object to payments or other liberatory acts that have previously and in good faith taken place between the debtor or those entitled under him and the original creditor.

Art. 1192.— Privilege or mortgage claims carrying interest or periodical payments, and preserved in manner above mentioned, cannot be marshalled in the same rank as for capital for more than two years interest or periodical payments; without prejudice, however, to the right of the creditor to have special mortgage inscriptions made as occasion arises and according to the amount thereof for what have fallen due at a more distant date.

Art. 1192 (bis).— Creditors and legatees claiming separation of an estate in respect of the immovables of the deceased must have their claim or legacy inscribed on the property that they wish to retain as their security within six months from the opening of the succession. The inscription must mention the amount of the claim or legacy and the object for which it is made. Inscriptions or transcriptions made within the said time in right of the heir cannot affect such persons claiming separation, but without prejudice, however, to what is said in the following article when treating of the privilege of persons undertaking work.

Art. 1193.— Amongst creditors with a privilege over immovables, priority takes place respectively in the order following : 1. Architects, engineers, and contractors of works notwithstanding that their claims may have originated after those of others; in case of insufficiency of the increased value resulting from their works to pay them in full, they are all to be marshalled in the same rank in proportion to their claims; 2. Alienors or coparceners; in case of successive alienations or partitions the preference belongs to the creditors of longest standing respectively. Persons lending money have the rank of the creditor that their money has served to satisfy in whole or in part, cither from the beginning or by virtue of subrogation by agreement. Creditors and legatees, demanding separation of an estate only, have to yield preference in regard to the property of the deceased to architects, engineers, and contractors who have given an increased value to the property of the estate since it came into the hands of the heir. Separation of a deceased's estate does not alter the respective rights of the creditors and legatees of the deceased.

Art. 1194.— The rules relating to the manner of making inscriptions of privileges, and renewing, erasing, or modifying the same as occasion requires, arc common to both privileges and mortgages and are set out when treating of the latter in the following Chapter.

SUBSECTION 3. THE EFFECT AGAINST THIRD HOLDERS OF PRIVILEGES OVER IMMOVABLES.

Art. 1195.— Privileges duly made public and preserved in manner mentioned in the preceding Subsection, follow the immovable charged therewith into the hands of third holders. In default of these latter satisfying the privilege creditors by one of the means which will be herein subsequently determined, the immovable can be seized in respect thereof and sold at public auction, so that the price thereof may be distributed among the privilege and mortgage creditors according to their order of preference.

Art. 1196.— General privileges only confer the right of following immovables that have passed into the hands of third holders, if they have been inscribed before the transcription of the title by which the immovable has been acquired.

Art. 1197.— Creditors that arc privileged under an alienation or partition, the transcription of which has not been made before that of the title of a subacquirer originally deriving his therefrom, arc not deprived of the right to follow, unless they have been first summoned by him to have the title transcribed from which they derive their privilege, and a month, exclusive of the increased time allowed on the ground of distance, has passed without such summons being acted upon. Nevertheless, the new acquirer is not bound to issue such summons, and is entitled to consider himself as protected from any privilege of former owners, if his assignor has been in civil possession of the immovable for more than ten years.

Art. 1198.— Creditors that arc privileged in consequence of works on immovables can exercise the right of following by reason of inscription of the first report, where transcription of a title of alienation has been effected before the completion or the stoppage of the works. If the works have been completed or stopped, and if double the time allowed for acceptance and for inscription of the second report has not yet expired, the said creditors only forfeit their privilege after the expiration of such period, or after having been ineffectively summoned to have the second report inscribed within a month.

Art. 1199.— Privilege creditors, who have not given to their privilege the publicity necessary for the prescription and exercise of the right of following, do not forfeit their right of preference over the price of assignment due by the third holder, if they have made themselves known, and have proved their claim before payment of the price or before closure of the list of creditors in the case of a list having been opened.

Art. 1200.— The rules common to privileges and mortgages in regard to the right to follow, to its conditions and consequences, and to the means by which third holders can avoid expropriation, as well as the causes which extinguish privileges, are determined in the manner in the Appendix to the following Chapter, when treating of mortgages, mentioned.

CHAPTER V. MORTGAGES.

SECTION I. THE NATURE AND SUBJECT-MATTER OF MORTGAGES.

Art. 1201.— Mortgage is a real right over immovables appropriated by law or by the will of man to the payment of certain obligations in preference to others, and without any pledging of the same being necessary.

Art. 1202.— Mortgage, is indivisible, actively as well as passively, in the same manner as is provided in the case of pawn and antichresis unless there be an agreement to the contrary.

Art. 1203.— Mortgage can be created not only over the absolute ownership of immovables, but also over usufruct, other than the usufruct belonging by law to parents, over rights of lease, of emphyteusis, and of superficies, and also over a bare ownership or over a property denuded of the said rights. Nevertheless, the absolute owner cannot separately mortgage the bare ownership, or the usufruct, or the soil without what is built or planted on it, or what is built or planted without the soil. On the other hand, however, he may mortgage a portion, either divided or undivided, of his property. Real servitudes cannot be mortgaged separately from the dominant tenement, nor can immovables that are so by reason of the purpose for which they are employed be mortgaged separately from the tenement to which they are attached. In cases where the working of a mine has been conceded, mortgage can be effected over the mine and over the surface separately, in favour either of the same creditor or of different creditors, and whether they belong to the same owner or not.

Art. 1204.— The following cannot be mortgaged : Rights of use and habitation or other property that is inalienable or not liable to seizure; The immovable rights of claim mentioned in Art. II (2) (3); Government annuities and the other immovable rights of claim mentioned in Art. II (4), unless the law declaring the same immovable authorizes their mortgage; Movables; without prejudice, however, to tvhat is said with regard to ships and boats in the special laws relating thereto.

Art. 1205.— The provisions of this Code are applicable to the mortgages provided for by the Commercial Code or by special law in respect of all matters that are not otherwise regulated by such laws.

Art. 1206.— Mortgage, in the absence of fraud with respect to other creditors, extends as of right to all additions or improvements that may accrue to the tenement, whether arising from fortuitous or gratuitous causes as in the case of alluvion, or from the act and at the cost of the debtor as in the case of buildings, planting of trees, and other works ; without prejudice, however, to the privilege belonging to architects and contractors of works over the increased value as regulated in the preceding Chapter. It does not extend to contiguous premises which the debtor may have acquired, even gratuitously, and notwithstanding that they may have been incorporated into the mortgaged tenement by means of new enclosures or by doing away with those previously existing. Loss, decrease, or deterioration of the property mortgaged arising from fortuitous causes or irresistible force, or from the act of a third party, work to the prejudice of the creditor, saving his right over the indemnity, if any, in manner in Art. 1138 mentioned when treating of privileges.

Art. 1207.— If property mortgaged has become diminished in size or deteriorated by the act of the debtor, or by want of keeping in order, to such an extent that the security of the creditor has become insufficient, the debtor is bound to give to the creditor a supplementary mortgage. In the case of this not being possible, he is bound to repay the debt, although not yet due, to the extent to which the security of the creditor has become insufficient.

Art. 1208.— So long as the property mortgaged has not been seized, the debtor preserves his right to lease it for the periods of time in Arts. 126 and 127 specified, to dispose of the fruits and produce thereof, although still attached to the soil, and to do all acts of management.

SECTION II. DIFFERENT KINDS OF MORTGAGES.

Art. 1209.— Mortgages arc either legal, conventional, or testamentary.

SUBSECTION 1. LEGAL MORTGAGE.

Art. 1210.— Mortgage exists by virtue of law independently of any stipulation : 1. In favor of married women for all claims they may have against their husbands over all immovables of the husband, even though he be a minor, including both those that belonged to him at the time of the marriage as well as those he may have acquired or come into possession of subsequently under any title whatever. 2. In favour of non-emancipated minors, and of persons either judicially interdicted on account of insanity or interdicted by law as a consequence of a criminal sentence, for all claims they have against their guardians over all property present and future belonging to them; 3. In favor of the State, Fu and Ken, Gun and Ku and public institutions over the property of those liable to them by reason of their management, to the extent and under the conditions determined by the administrative laws. Mortgages originating out of privileges that have been lowered in the terms of Arts. 1187 and 1190 arc also regarded as created by law.

SUBSECTION 2. CONVENTIONAL MORTGAGE.

Art. 1211.— Conventional mortgage can only be created, under pain of absolute nullity, by means of an agreement entered into before a notary in the form usual for authentic documents. A procuration authorizing the giving of a mortgage over the property of the mandator must be special and also executed before a notary, and its contents must be recited in the mortgage contract.

Art. 1212.— Agreements of mortgage entered into in foreign countries with respect to property situated in Japan can take effect if they have been entered into in the form in use in the foreign country between the nationals thereof for such description of document; but registration by reason of such agreements can only be made in Japan subject to observance of the conditions prescribed in Art. 1219, and in Art. 1224 and following articles.

Art. 1213.— Every document creating a right of mortgage must specially designate by their description and situation the immovables appropriated as security for the obligation. If the title creative of the mortgage includes the whole or a part of the existing immovables of the debtor without specially designating each of them, it can be limited, on demand of the debtor, to such as arc necessary as security for the claim. The creation of a mortgage, whether general or special, over the future property of the debtor is void in its entirety.

Art. 1214.— The document creating a conventional mortgage must also clearly designate the cause, form, and subject-matter of both the obligation in chief and of its accessories. The subject-matter thereof is to be valued in money, if it is not directly constituted in such value ; this latter condition, however, need only be complied with in the registration of the mortgage, as mentioned in Art. 1226.

Art. 1215.— A mortgage cannot be given by a person unless he has the right of ownership or of enjoyment that he intends to submit to mortgage, and unless he has legal capacity to dispose thereof onerously or gratuitously according to the cause of the debt; without prejudice, however, to what is said in Art. 1217 with respect to the creation of a mortgage by a third party. In the case of a temporary right, the mortgage cannot produce any effect beyond the time assigned to the principal right. Nevertheless, if before the expiration of such time the mortgage right has by the happening of some event become transported over an indemnity representing the value of the thing the creditor exercises his right over such indemnity.

Art. 1216.— The property of minors, or of interdicted or absent persons, can only be mortgaged by their representatives for the causes and according to the formalities in Hook 1 determined. The capacity to mortgage of emancipated minors, and of married women authorized to trade, is regulated in the Commercial Code.

Art. 1217.— A conventional mortgage can be given to guarantee the debt of a third person, as mentioned with regard to pawn and immovable pledge in Arts. 1102 and 1122. It constitutes always a free gift with regard to the debtor; it also constitutes such a gift with respect to the creditor were the cause of the right of claim has been gratuitous, or were it has been created subsequently to the principal agreement although onerous, without its having been promised.

SUBSECTION 3. TESTAMENT MORTGAGE.

Art. 1218.— A right of mortgage cannot be conferred by will over one or more of the testator's immovables except by way of guaranty for all or some of his legacies or for the debt of a third person. In this latter case, for a testamentary mortgage to be validly created, there must be capacity respectively to give and receive by testament on the parts of the testator and the debtor and creditor.

SECTION III. PUBLICITY OF MORTGAGES. SUBSECTION 1. THE CONDITIONS, FORM, AND DURATION OF REGISTRATION.

Art. 1219.— No mortgage, whether Legal, conventional, or testamentary, can be set up against third persons, unless it has been registered, under the conditions and with the formalities hereinafter determined, at the Registry office of the place where the mortgaged immovables are situated. If a property on account of its size is within the districts of two or more offices and has been mortgaged for the whole, registration must be effected at the office in whose district lies the chief part of such property ; in the other offices only a note of such registration and of its date need be entered.

Art. 1220.— Mortgages cannot be validly registered against a debtor in the two cases following: 1. When subsequently to their formation the debtor's insolvency has been regularly declared, or has become notorious by seizure of the whole or of the greater part of his property; without prejudice, however, to any other restrictions which may be imposed by the Commercial Code on the right of registration in case of bankruptcy; 2. When the debtor has died and his succession has not been unconditionally accepted by all the heirs entitled by law to receive it. If the property charged with mortgage has been alienated, the extent of the rights of the creditor to registration as against third holders is regulated by Section V.

Art. 1221.— Where the creditor has not the management of his own property, registration is to be effected by his legal or judicial representative. The registration of mortgage rights comes both within the rights and duties of a general mandatory, as well as within those of a special mandatory intrusted with the execution of a document to which a legal or conventional mortgage is attached. Registration can also be effected, without the mandate of the creditor, by any person voluntarily managing his affairs acting on his behalf.

Art. 1222.— The legal mortgage of a married woman can be registered upon her demand, and without the authorization of her husband, or of the Court, immediately he has become her debtor, • although only conditionally, and whether by contract or otherwise; such registration can be effected over all or over only a part of such immovables, as the wife deems fit; without prejudice, however, to the right of the husband to have the same abated as mentioned in Art. 1241. In the absence of registration by the wife, the husband, in the case mentioned in which he is her debtor, must, if he can, himself effect registration for her over immovables that are free from encumbrance, or only partially encumbered, and that are sufficient to secure her. In the absence of registration having been effected by the wife or by the husband, it can be done, even without any mandate, by a relation or a relative by marriage of the wife, unless she has opposed the same or renounced her right.

Art. 1223.— The legal mortgage of a minor must be registered by the exercise of care and diligence on the part of his guardian in like cases and under like conditions to that of a wife by her husband. In the absence of registration at the hands of the guardian, registration is to be effected by the assistant guardian or by any member of the family council, under penalty, in default thereof, of their being jointly and severally ordered to pay damages to the minor. The mortgage can also be registered upon the application of the minor himself after he has been emancipated.

Art. 1224.— The provisions of the first two paragraphs of the preceding article are applicable to the legal mortgage of persons, who arc interdicted, whether on account of insanity, or in consequence of a criminal sentence. In this latter case, registration can be demanded by a special mandatory of the interdicted person.

Art. 1225.— Any one applying for the registration of a mortgage must satisfy the registrar in manner following of the existence of the mortgage in his favor, or in favor of the creditor he represents : In the case of the legal mortgage of a married woman, of a minor, or of an interdicted person, by proof of the marriage, or of the state of tutelage from which the mortgage results by virtue of law; In the case of a conventional mortgage by an authentic copy of the instrument creating the mortgage; In the case of a testamentary mortgage by the original will, or by an authentic copy. If, in any case, the registrar disputes the proofs furnished him of the existence of the mortgage, or if the identity of the debtor with the owner, as appears by the register of the immovable in respect of which registration is demanded, is not sufficiently made out to him, he can, upon his own responsibility, refuse to register, but must comply with the provisions of Art. 1304 in order to have the matter decided as therein provided.

Art. 1226.— The applicant is in addition to hand in a memorandum in duplicate original containing a precise description: 1. Of the creditor, by giving his name, Christian name, profession, and domicile or residence; 2. Of the debtor, in the same manner so far as may be possible ; 3. Of the cause of the mortgage, and in the case of a mortgage other than a legal mortgage, by giving the nature and date of its title of creation ; 4. Of the claim, by giving the nature of its title, its date, the amount of the sum appearing due by such title, or its present value in money in the case of a claim of which the value has not been determined, and the enforceable character of the debt; 5. Of the property subjected to mortgage by giving its nature and situation. In the case of an assignment or a subrogation, whether conventional or legal, to be noted in the margin of a previous registration, it suffices to mention in the memorandum a description of the new creditor and of his title.

Art. 1227.— Where the claim secured by the legal mortgage of a married woman, a minor, or an interdicted person, docs not result from some document of title, the memorandums must set out substantially the facts relied on by the applicant as the cause of the claim and the estimated value in money of the alleged right.

Art. 1228.— If the actual domicile of the creditor is not within the district in which registration is effected, a special domicile must be chosen for him in the registration for the serving of such notices as have to be given him in consequence of the registered mortgage. Such domicile can at any time be changed, under like conditions of place and publicity.

Art. 1229.— The registrar upon receipt of the documents above mentioned is to give to the applicant a receipt therefor, to be detached in his presence from a register kept in counter-part. Such receipt bears the date of its delivery, as well as a number showing its order of delivery on such date, so as to ensure the application of the provision in Art. 1253 contained.

Art. 1230.— If the applicant applies as heir or assignee of an original creditor, he can effect registration in the name of the latter only, or in the joint names of himself and such former creditor. If registration is applied for by a mandatory or by a person voluntarily managing the affairs of the creditor, special mention is to be made of his name and position as well as of those of the mandator.

Art. 1231.— If the debtor has died, registration can be effected against him, or against all his heirs collectively, at the option of the applicant. In the case where, by partition of the succession, the immovable charged has fallen to one heir alone, registration can be effected against such heir alone. Where the mortgage has been created for the debt of a third person, registration is effected against the mortgagor.

Art. 1232.— When the registrar has entered in the registration book the contents of the memorandums, he is to certify upon each of these the fact, place, and date of registration, with mention of the volume and page in which it has been made, as well as its number in order in the receipt register; he is then to stamp the two memorandums with a single seal leaving a part of the impression on each page of each. One of such memorandums is to be returned to the applicant together with the title establishing the mortgage; the other is to be kept by the registrar for his own protection. It may be determined by Regulation that the memorandums thus approved of and stamped, and annually collated, shall constitute the originals of registrations, and that the register book shall only contain an index of them.

Art. 1233.— A registration can be declared void for omissions, insufficiencies, or inaccuracies in the memorandums of the matters above required to be mentioned upon demand of third parties, if they prove that they have been prejudicially affected in consequence of having been left by such incomplete registration in ignorance of some material element of the mortgage which they were interested in knowing.

Art. 1234.— Registrations of legal, conventional, or testamentary mortgages only remain operative for thirty years, after which they lapse and notwithstanding that prescription of the claim may have been interrupted or suspended. This time runs against persons without legal capacity, but without pre judice to their right of recourse against their representative. Nevertheless, if the registration has been renewed before the expiry of thirty years, with a clear reference back to the date of the previous registration, it preserves for the mortgage its rank as at that date. Renewal after the registration has lapsed only takes effect from the date thereof like an ordinary registration.

Art. 1235.— Renewal of registration within the space of thirty years is permitted, notwithstanding that the bankruptcy, insolvency, or death of the debtor may have occurred since the original registration ; but the same events, for the reasons mentioned in Art. 1220, prevent renewal of a registration that has lapsed.

Art. 1236.— The registrar makes the renewal upon production of an application in duplicate original containing reference to the previous registration; one of these originals is returned to the applicant duly scaled and with a certificate thereon of the renewal having been made and of its date.

Art. 1237.— The costs of registration, in the absence of any agreement to the contrary, and if the claim has been acquired by virtue of an onerous title, are to lie borne by the debtor and by the creditor in equal shares. The costs of renewal arc to be borne by the creditor only.

Art. 1238.— All disputes in reference to registrations arc to be brought before the Court of the place where the property mortgaged is situated, and citations or notices to the creditor arc to be served at the domicile of election mentioned in the registration.

SUBSECTION 2. CANCELLATION, ABATEMENT AND RECTIFICATION OF REGISTRATIONS.

Art. 1239.— Grounds for cancellation of a registration exist: 1. Where the claim to which it relates is void or voidable, or where the same has been extinguished in full; 2. Where the mortgage in virtue of which such registration has been made has not been validly created or does not legally exist; 3. Where the registration itself is voidable by virtue of Art. 1233. The above is, however, without projudice to the cancellation of a registration in respect of certain immovables as mentioned in Art. 1245.

Art. 1240.— The cancellation of a registration must be judicially declared, upon demand of the debtor or those entitled under him, unless it be authorized by the creditor in the manner hereinafter provided.

Art. 1241.— Where the legal mortgage of a married woman lias not been limited to certain immovables, or where the claim has not been estimated at a fixed sum either by the marriage contract or by a special agreement between the husband and wife, and registrations have been effected over more immovables than are necessary as security for the wife against contingencies, or for a larger sum than the real value of the right of claim, the husband, or those entitled under him, can judicially demand the abatement of such registrations, cither as regards the immovables or the estimated amount.

Art. 1242.— Likewise, a guardian or those entitled under him can demand the abatement of registrations that have been effected over and above what is necessary for the security of the minor or of the person interdicted, where the limiting of the mortgage to certain immovables, or the valuation of the right of claim at a fixed sum, has not been made by resolution of the tutelage council either at the time of his entering upon his duties or subsequently.

Art. 1243.— Where the mortgage is* conventional, the debtor can only judicially demand an abatement if it is general over existing property and is excessive in manner mentioned in Art. 1213. The debtor can in every case demand an abatement of the valuation set by the creditor upon the claim in the registration, where no valuation is contained cither in the title of creation or in a separate document.

Art. 1244.— A testamentary mortgage can be also abated on the demand of the heir, where it has been created by the testator without limitation as regards the immovables of the succession, or without estimate of value as regards the right of claim.

Art. 1244 bis. Grounds exist for abatement of the registrations of all three kinds of mortgages, but only in respect of the registered amount, where the debt has been more than half extinguished. The debtor can at any time have a note made at his own expense in the margin of the registration of any part payments he has made.

Art. 1245.— The judgment which decides in favor of the whole or part of the debtor's demand has to point out the immovables, if any, freed from the mortgage, or the sum to which the valuation has been brought down. In the first case the registration effected over the discharged immovables is cancelled ; in the second case it is abated. Such cancellation or abatement is not to be effected until the judgment has become final.

Art. 1246.— Where, in case of the abatement of a registration to certain immovables in accordance with the preceding articles, such immovables become, although by fortuitous causes or irresistible force, insufficient for the guaranty of the creditor, the latter can demand a supplementary mortgage.

Art. 1247.— Cancellation or abatement of registration can only be agreed to by the creditor by means of an instrument in writing duly authenticated.

Art. 1248.— If such voluntary cancellation or abatement is based upon the total or partial extinguishment of the debt, it is sufficient, in order to consent thereto, that the creditor should have legal capacity to receive such payment or to acknowledge it. If it is based on one of the other grounds mentioned in Art. 1239, the creditor must have capacity to compromise ; If it has the character of a gratuitous renunciation of the mortgage or of a conventional release, it is necessary that the creditor should have legal capacity to dispose gratuitously of his claim.

Art. 1249.— The procuration for the purpose of consenting to the cancellation or abatement of a registration must also be given by an authentic document. If, however, the cancellation or the abatement is based upon the total or partial extinguishment of the debt, it can be agreed to by any mandatory having the power to take part in the debtor's discharge. In the case of a compromise or of gratuitous renunciation the procuration must be express.

Art. 1250.— Cancellation and abatement are effected by a note in the margin of the registration either of the agreement that has authorized them, or of the judgment that has ordered them. The registrar only makes such note upon production of an authenticated copy of the notarial document or of the judgment; in this latter case, the court clerk must have certified upon the copy that the judgment has become no longer liable to attack. The last paragraph of Art. 1225 and Art. 1304 are to be applied in case of the refusal of the registrar to register, and they also govern his liability.

Art. 1251.— If the cancellation or abatement has been annulled or cancelled by a later judgment, such judgment is in its turn to be noted in the margin of the registration, and the same comes again into effect in respect of the former creditors, but without its being able to be set up against third persons who have acquired rights over the immovable between the two judgments, and have registered them before the second has been made public.

Art. 1252.— If the first registration, or its renewal, cancellation, or abatement presents inaccuracies or omissions, which are insufficient to justify its annulment, they are, in the absence of agreement between the parties, to be rectified by a judgment.

SECTION IV. THE EFFECT AND RANKING OF MORTGAGES BETWEEN CREDITORS.

Art. 1253.— Every mortgage creditor validly registered on an immovable takes priority of simple creditors to the extent to which he is marshalled with advantage to himself over the price realized from such immovable Between creditors with a mortgage, whether legal, conventional, or testamentary, the order of marshalling is determined by the respective priority of the registrations, and notwithstanding that two or more registrations concerning different creditors have been effected on the same day; without prejudice, however, to rights of action against the registrar, on ground of his responsibility, if he has not followed, in Conformity with Art. 1229, the numerical order of the applications handed in to him.

Art. 1254.— Registration secures to the interest of the claim and the periodical accessories mentioned in the registration the same rank as it dues to the principal, but only for the last two years: without prejudice, however, to the right of the creditor to effect subsequent registrations in respect of interest of longer standing, but the same only operate from the date of their being made.

Art. 1255.— The rank of a mortgage is determined by its registration, even although the right of claim be conditional, or arise out of successive payments as in the case of an open credit.

Art. 1256.— Where a creditor has a right of mortgage over several immovables whose value is realized at the same time, his claim is to be divided between them in proportion to their respective importance. Where they are realized at different times and such creditor is paid in full by the price of one of them, thereby causing loss to one or more other creditors having only a right of mortgage after him over such immovable, these are for their own claims, and in their respective order, subrogated by law to the rights of mortgage that the satisfied creditor had over the other immovables, to the extent to which such immovables ought to contribute to the claim which had a right of priority over them.

Art. 1257.— Such subrogation operates against creditors who have been registered over the said other immovables subsequently to the creditor whose rights are thus transmitted. Where the subrogated creditors have their subrogation noted in the margin of the registrations effected, they must be included by name in the ranking proceedings and no cancellation or abatement can be made in the registration entry without their consent. If the mortgage of the satisfied creditor has not been registered over the other immovables which have been appropriated for it, registration can be effected and the above mentioned noting made by the subrogated creditors in order to obtain the same results.

Art. 1258.— Every mortgage creditor capable of disposing of his claim, or authorized so to do, or duly represented, can renounce his mortgage, or only his rank, in favour of another creditor, whether mortgage or simple, of the same debtor, but without prejudice to what is said in reference to novation in Arts. 522 and 525. If a mortgage claim has formed successively the subject-matter of assignments, renunciations, or subrogations, priority belongs to that person claiming under the mortgagee who has the first made public the fact of his acquisition by a note of the instrument creative of his right in the margin of the registration already made, or else by registration of such instrument itself, if registration lias not been already effected.

Art. 1259.— Art. 1191 is applicable to the cases in the two preceding articles mentioned in respect of matters not therein provided for.

Art. 1260.— The knowledge, even though admitted, that a mortgage or simple creditor may have of an unregistered mortgage does not deprive him of the right to avail himself of the absence of registration.

Art. 1261.— Mortgage creditors, who have not been satisfied in full by the price obtained from the sale of the immovables, become simple creditors for what is still owing to them If the said distribution of all or part of the movable assets precedes the sale of the immovables, the mortgage creditors are provisionally to be admitted to share therein, as if simple creditors, for the full amount of their claims. When the distribution of the price realized by the mortgaged immovables subsequently takes place, such creditors arc to be marshalled as if they had received nothing from the movable assets ; those, however, who will thus be paid in full are only to receive the amount for which they have been marshalled in respect of their mortgages after deducting therefrom whatever monies they have received as simple creditors, and which are to be restored to the movable assets. With respect to such as can only be paid in part by their mortgage, their rights in regard to the movable assets are definitely settled according to the amount for which they have unsuccessfully ranked ; whatever they may have received over and above such amount is to be withheld from what they are to lie paid in their mortgage marshalling and is to be restored to the movable assets. Sums thus restored become the subject of a new distribution between the purely simple creditors and such mortgage creditors as have not derived benefit from been marshalled or have only done so for a portion of their claims.

SECTION V. EFFECT OF MORTGAGES AGAINST THIRD HOLDERS. PRELIMINARY PROVISIONS.

Art. 1262.— Where a mortgaged immovable has been either alienated in whole or in part, or charged with usufruct or other real right, every mortgage creditor registered over the immovable before the transcription of the instrument creative of alienation or of the dismemberment of the right of ownership preserves the right as against the third holder to demand payment of what is owing to him, and subsidiarily to take proceedings for the expropriation of such immovable as if it had not been alienated or dismembered, in order to be paid out of the price in his mortgage rank. Nevertheless, leases made or renewed for the periods of time mentioned in Arts. 126 and 127 must be respected by the previously registered creditors.

Art. 1263.— Where the mortgage is over a dismemberment of the right of ownership and the debtor has renounced his right, the creditor, if registered before such renunciation has been transcribed, preserves his right to follow notwithstanding such renunciation.

Art. 1264.— Mortgages cannot be set up against simple creditors who have seized the mortgaged immovable and had it sold, unless the registration thereof has been effected before transcription of the order of adjudication ; without prejudice, however, to the nullity of registrations made in the two cases in Art. 1220 mentioned.

Art. 1265.— The bankruptcy, insolvency, or death of a third holder does not prevent the registration of a mortgage, so long as transcription of the title under which such third holder acquired has not been effected.

Art. 1266.— A third holder is, according to the circumstances, entitled : 1. To pay all the mortgage debts, 2. To purse, 3. To set up the plea of benefit of discussion, 4. To abandon, 5. To submit to expropriation.

SUBSECTION 1. PAYMENT OF THE MORTGAGE DEBTS.

Art. 1267.— A third holder cannot be expropriated or disturbed if he pays the mortgage debts as they fall due.

Art. 1268.— If he has paid such debts, either in whole or in part, he becomes, in conformity with Art. 504 (1) and Art 505 (2) and (3), subrogated to the other mortgages, securities, and advantages of the creditors he has satisfied. He acquires also the right of subrogation contingent to the mortgages charging the immovable he holds, in the event of expropriation proceedings being taken against him by creditors he has not satisfied.

SUBSECTION 2. PURGE.

Art. 1269.— A third holder can, without paying all the registered mortgage debts, free the immovable therefrom by paying to the creditors, in the order in which they are registered, or by depositing for their account, the price he paid for his acquisition, or the estimated value of the immovable, or some larger sum, the same being accepted by them, cither expressly or tacitly, after offer made and the procedure called purge effected, in manner hereinafter regulated.

Art. 1270.— An acquirer subject to a suspensive condition cannot purge, so long as his right has not become absolute by accomplishment of the condition. An acquirer subject to a resolutory condition can purge, even though his right has not yet become absolute by non-accomplishment of the condition. If in such case the offer made by the third holder has been accepted, but his acquisition is rescinded after the cancellation of the mortgages for the payment of which the property did not suffice, the cancelled registrations thereof are to be restored in conformity with Art. 1249. If in the same case, the immovable, owing to the offer not having been accepted, is sold at public auction in manner hereinafter provided, the adjudication decreed either in favour of the third holder, or of any other person, remains for the future secured against the said resolutory condition.

Art. 1271.— The right to purge mortgages does not belong to a third holder personally bound for the mortgage debt, either as principal or as surety. It does not belong to an heir of the debtor who has paid only his hereditary share of the debt, or to any person, or the heir of any person, who has created a mortgage over his property for the debt of a third person.

Art. 1272.— Adjudications after public sale in the case of immovables that have been seized, of higher biddings, or of mortgage actions, as well as any others in which the mortgage creditors are required to intervene do not give rise to purge. The same applies to expropriation on grounds of public utility. Without prejudice, however, to the right of the mortgage creditors to be marshalled in their order on the adjudication price or the ejectment indemnity.

Art. 1273.— There is no purge of rights of use or habitation, or of real servitudes; creditors having a right of mortgage over the immovables charged by the debtor with these rights can enforce the sale of such immovables against the debtor without having regard to the rights thus conferred. The same applies to leases made by the debtor in excess of the limits mentioned in Art. 1262.

Art. 1274.— The third holder can purge at any time so long as he has not been sued by the creditors, but must do so, under pain of forfeiture of his right, within one month at the latest from the time of being summoned to pay or abandon. Nevertheless, such forfeiture does not take place as of course ; application therefor must be made to the Court, and it is not to be decreed by it if the third holder proves that he was prevented on good grounds, and the creditors fail to show that they have been seriously prejudiced by the delay. Forfeiture cannot, moreover, be decreed, if the creditors have permitted the time of one month, allowed to them by Art. 1278 (2) for replying to the offer made, to expire without making their application.

Art. 1275.— The third holder must, as a preliminary to purge, have his title transcribed in order to make good his right as against third parties, and to disclose the privilege of the alienor in conformity with Arts. 1184 and 1185. After so doing, he receives from the registrar a statement of the privileges or mortgages with which his immovable is charged.

Art. 1276.— Within the said period of one month the third holder must notify to all the registered creditors, as well as to those in regard to whom transcription is equivalent to registration in the terms of Arts. 1184 and 1185 : 1. A statement of his title of acquisition, setting forth its nature, its date, the date of its transcription, a precise description of the alienor and of the acquirer, and of the immovable over which the right is ceded, the price and burdens of the assignment, or the estimated value of the right in case it has been acquired by exchange, donation, or legacy ; 2. A table of the registrations, showing in respect of each of them the date, the folio of the register on which it is entered, the name and elected domicile of the creditor, and the amount of the sum registered in principal; 3. The domicile elected for the third holder within the territorial jurisdiction of the civil court of the place where the immovable is situated ; 4. A declaration that the third holder is ready, in the absence of being overbid by the said creditors in manner provided by law and within the time of one month or such further time as may be occasioned by distance, cither to pay them in the order of their registration the price or estimated value of the immovable, or even a higher sum, or to deposit the said monies in their name, without making any distinction between claims already due, and those that arc subject to a term of time or to conditions.

Art. 1276 bis.— Where amongst the registered creditors there is an alienor, or a copartitioner, with a right of privilege, and notwithstanding that the same may have become lowered to a legal mortgage in the terms of Arts 1187 and 1188, the declaration required by Art 1276(4) must be accompanied by a citation to such creditor to declare in his turn within the same interval of time whether he intends to make use of the right of cancellation which belongs to him.

Art. 1277.— If the instrument of alienation includes several immovables of which some arc not mortgaged, or includes movables that have not been rendered immovable, the acquirer is only to make his offer for the mortgaged immovable and any higher bid is only to have reference to such offer.

Art. 1278.— Any registered creditor, who does not accept the offer here-above provided for, must demand the sale by public auction of the immovable or right assigned according to the following formalities, within the following time, and under the following conditions: 1. The requisition must, under pain of nullity, be accompanied by an increased bid of at least one tenth over ami above the sunt offered together with a declaration that the requisitionist is prepared to give a sufficient surety or guaranty for the total price as thus increased and for expenses: the whole to be signed on the original document by the requisionist or his specially authorized representative; 2. The said requisition must, under a like pain of nullity, be served on the third holder at the domicile elected by him within a month from the notification of the offer, with the addition thereto of one day for every ten ri in order to allow for the going and coming of documents between the domicile elected by the debtor and his actual domicile in Japan ; 3. A similar service must be effected on the preceding owner, whether the principal debtor, or not, within the same time, but subject to a like increase in consequence of the distance off of his actual domicile ; 4. Where the mortgage over file alienated property has been created by a person other than the debtor, service must be effected also on the latter, within the same time. The said periods become merged in each other to the extent of the length of the shortest.

Art. 1278 bis.— An alienor or co-partitioner who has made a higher bid in the manner provided in the preceding Article without reserving his right of action to obtain cancellation is to be deemed to have waived the same. If he wishes to preserve his said right of action, he must, under pain of nullity, notify such intention to the third holder within the same time as is allowed to him to make a higher bid ; such is, however, without prejudice to a like notice being sent to the last owner, and the principal debtor.

Art. 1279.— Where a valid higher bid has been notified with the prescribed formalities and within the prescribed time, the higher bidder cannot withdraw his bid without the consent of the other registered creditors, and these can proceed to public sale on such higher bid. Where a public sale takes place. Art. 1290 and following articles arc applicable.

Art. 1280.— If no creditor has validly demanded a sale by public auction, the immovable becomes purged by payment of the price to the creditors in their order as settled either by arrangement or judicially, or by depositing the same in the name of those entitled thereto, without any actual offer being previously made. In such a case all the mortgages arc cancelled, including those for which the property has not sufficed.

Art. 1281.— After purge has been thus effected the third holder has his right of recourse on ground of guaranty against his assignor according to the distinctions following: 1. In the case of a sale, for whatever he has offered and paid over and above his price of acquisition; 2. In the case of an exchange or other onerous contract, for whatever he has paid over and above his obligations to the assignor, if he has not obtained restitution of the counter value he furnished; 3. In the case of a donation between persons living or of a testamentary donation, for whatever he has paid in order to liberate the donor; And in every case for all costs of proceedings incurred by him.

SUBSECTION 3. PLEA OF BENEFIT OF DISCUSSION.

Art. 1282.— A third holder who is not personally and principally liable for the mortgage debt can require the suing creditor to discuss, that is to have first sold other immovables mortgaged for the same debt, provided : 1. That they are situated within the jurisdiction of the Court of appeal of the place where payment is to be made ; 2. That they still belong to the principal debtor; 3. That they are not the subject-matter of litigation; 4. That they are not manifestly insufficient to procure for the creditor payment in full, regard being had to his rank of registration and to their value. Such pica must be brought forward so soon as proceedings arc commenced.

Art. 1283.— A third holder who renounces his right to benefit of discussion to which he is entitled in the capacity of surety is not thereby deprived of his right to the benefit of mortgage discussion.

Art. 1284.— Any person who has mortgaged his immovable for the debt of another, as also his heir, can set up the plea of discussion. The same applies also to any heir of the principal debtor who has paid his share of the debt before the commencement of proceedings.

SUBSECTION 4. ABANDONMENT.

Art. 1285.— Third holders can at any time during expropriation proceedings abandon the immovable forming the subject matter of suit By abandonment the third holder only relinquishes his actual possession to the suing creditors ; he preserves his right of ownership and the civil possession of the immovable, which remains at his risk.

Art. 1286.— Abandonment can only be availed of by third holders who are not personally liable for the debt either principally or as sureties. It can be made by a surety who has given actual security and by such heirs of the debtor as have paid their share of the debt, and notwithstanding that they have only done so during the course of the proceedings.

Art. 1287.— In order to validly abandon it is sufficient if the person have legal capacity to appear as defendant in expropriation proceedings in his own name or as legal, judicial, or conventional representative of the third holder.

Art. 1288.— Abandonment is made at the court clerks office at the Court of the place where the property mortgaged is situated by means of a declaration signed by the person abandoning, or his special mandatory, and notified to the suing creditor. Upon the request of the latter, of the third holder, or of any other interested person, the Court appoints a trustee of the abandoned property against whom expropriation proceedings arc to be taken.

Art. 1289.— The third holder, or his representative, can at any time up to adjudication withdraw his abandonment by observing the same formalities as when effecting it, and upon paying, or depositing, within a month the total debts due to all the suing creditors and costs incurred to date; without prejudice, however, to the right of action of other creditors, or to his right of purge with respect to the same if the times prescribed for purge have not expired.

SUBSECTION 5. SALE BY AUCTION AND EXPROPRIATION.

Art. 1290.— If the third holder has neither paid nor abandoned, nor proposed purge, or if, his offer made with a view to purge not having been accepted, a higher bid has been made, the immovable is put up to auction with the formalities and publicity provided for by the Code of Civil Procedure.

Art. 1290 bis.— Where a preceding alienor or a co-partitioner lias in the terms of Art. 1278 (bis) declared his intention to avail himself of bis right of action for cancellation in preference to his privilege or legal mortgage, he must take steps so. as to obtain judgment in such action within the time fixed by the Court, on the request of the third holder, for his so doing, and before the auction takes place.

Art. 1291.— In every case where cancellation has either not been applied for or has not been sanctioned, the third holder can bid at the time of auction. If adjudication is decreed in his favour, the judgment of adjudication is merely noted in the margin of the transcription of his original title as confirmatory thereof.

Art. 1292.— Where adjudication is decreed in favour of a person other than the third holder, the judgment is to be independently transcribed as the instrument transferring the ownership, and a note thereof is also to lie made in the margin of the prior transcription.

Art. 1293.— In the same case, where transcription is decreed in favour of a person other than the third holder, rights of servitude existing between the tenements adjudicated and any other tenement belonging to the third holder come again into existence actively as well as passively, notwithstanding the previous confusion which then becomes cancelled. The same applies with respect to rights of usufruct, of lease, and other dismemberments of the property which belonged to the third holder before he acquired the same.

Art. 1294.— In either case of adjudication, if the third holder himself had a registered mortgage over the adjudicated immovable, he is marshalled in his order of rank.

Art. 1295.— If, after the adjudication price has been paid to the creditors according to their order of registration, there remains a balance undisposed of, the same belongs to the third holder, whether the adjudication has been made in his favour or not. If prior to the adjudication, mortgage registrations have been effected over the immovable by his own creditors, such creditors are marshalled after those registered against the preceding owners.

Art. 1296.— Where the premises mortgaged have sustained deterioration in consequence of any thing done by the third holder during his time of possession, or if the latter has made upon the premises any necessary or useful outlay, he is, as between himself and the mortgage creditors. entitled to have the same made good to him.

Art. 1297.— With respect to fruits, the third holder is not bound to account for the same to the creditors except from the time of his being summoned to abandon or to pay.

Art. 1298.— In every case, after pay. ment or deposit of the price, all registered mortgages, even those for which the premises have been insufficient, are cancelled, and the immovable stands purged from all of them.

Art. 1299.— After adjudication the third holder has a right of recourse on ground of guaranty against his assignor as follows: If he has had the adjudication decreed to him, he is to be indemnified as in the case where his offer with a view to purge has been accepted, and as is in Art. 1281 mentioned; It the adjudication has been decreed in favour of a stranger, he has his right to guaranty against eviction, in conformity with general legal principles, and according as to whether his contract was onerous or gratuitous; 1. If there was a sale or other onerous acquisition and the adjudication price has exceeded the original price of acquisition, or counter value given, such difference is to appear as in. creased value in the damages to which he is entitled ; 2. In the case of a donation between persons living or by testament, he is only to be indemnified by the donor or his heir to the extent to which the adjudication has freed them from the mortgage debts. The costs of the proceedings are to be repaid him by the person in whose favour the adjudication is made.

SECTION VI. LIABILITY OF REGISTRARS.

Art. 1300.— Independently of what is said in respect of the register in counterpart as in Art 1226 provided, special regulations determine the number, description, and manner of keeping the registers for transcriptions and registrations, as well as the fines to which the registrars are subject in case of breach of duty.

Art. 1301.— Art. 375 with respect to the civil responsibility of registrars of transcription registers, is applicable to their omissions or inaccuracies in the case of mortgage registration.

Art. 1302.— If the registrar has omitted one or more registrations in the certificate handed to the third holder after effecting the transcription of his title, and if, in consequence of such omission, the registered creditors have not been included in the offer of purge or in the adjudication proceedings, the immovable is none the less purged from such mortgages.

Art. 1303.— So long as the time fixed by Art. 1278 for over bidding the purge offer has not expired, the creditors that have been omitted can make known to the third holder the omission made with regard to them, can demand him to communicate to them the offer made and the higher bid, or even to have themselves joined in the expropriation proceedings if such arc not already concluded, but without being able to have the same delayed. They can in every case have themselves included in the list of creditors that has been made out either by agreement or judicially so long as it has not been closed. The above is, however, without prejudice to their right of recourse against the registrar for any damage that they can prove themselves to have sustained through his omission. The registrar himself has a like remedy against the principal debtor and his sureties for whatever he has thus paid in their discharge.

Art. 1304.— The registrar cannot refuse to make a transcription, registration, or marginal note, unless he is irregularly applied to to do so, or unless the documents in support required by law have not been presented to him together with the amount of the costs of drafting and of such other costs as he is by law authorized to collect. In the case of refusal, the registrar is bound to hand over, even although not so requested, an acknowledgment of the demand and a statement setting out the grounds for his refusal. The interested party can upon production of this document make application to the Civil Court of the place, and such Court must decide so soon as practicable, both as to the validity of such refusal and the liability of the registrar.

SECTION VII. THE EXTINGUISHMENT OF MORTGAGES.

Art. 1305.— A mortgage becomes extinguished : 1. By the total and final extinguishment of the principal obligation, save what is said with respect to novation in Art. 525; 2. By the renunciation of the creditor to his mortgage right ; 3. By prescription; 4. By purge, resulting from an offer accepted by the creditors, and followed by payment or deposit of the sum offered, as mentioned in Art 1280; 5. By an adjudication, followed by payment or deposit of the price, in conformity with Arts 1272 ami 1298: 6. By the total loss of the mortgaged immovable, but without prejudice to the transfer of the right of the creditor to the indemnity to which the loss may give rise, in conformity with Art. 1207; 7. Ry expropriation on ground of public utility, but subject to the payment of the indemnity to the mortgage creditors.

Art. 1306.— If the extinguishment of the obligation has been annulled, rescinded or revoked upon legal and judicially recognized grounds, the mortgage is restored to its previous rank, although the registration thereof may have been cancelled. Nevertheless, this is not to be acted on to the prejudice of creditors who have obtained registration subsequently to the cancellation but prior to the new registration, or to the noting of the judgment restoring it in the margin of the previous registration.

Art. 1307.— Renunciation of a mortgage cannot be made by a creditor, unless he has capacity to dispose of the claim itself, either onerously or gratuitously as the case may be. The same applies where the creditor only renounces his mortgage rank. Renunciation of the mortgage or of mortgage rank may be only tacit. Where the creditor has been a party to the alienation of the mortgaged immovable conjointly with the assignor, he is only to be deemed to have renounced his mortgage in regard to his right to follow, and not even this if his intervention was required by law in consequence of some special title.

Art. 1308.— Prescription of a mortgage only takes effect together with prescription of the claim itself, if the immovable has continued as the property of the debtor. in such case, any acts which interrupt, or causes which suspend, the course of prescription with regard to the claim produce the same effect with regard to the mortgage.

Art. 1309.— If the mortgaged immovable has been alienated by the debtor and is in the possession of the acquirer or those claiming under him, the registered mortgage only becomes extinguished by a prescription of 30 years, undisturbed by mortgage proceedings, counting from the day when the acquirer registered his title, but without prejudice to any case in which the claim itself becomes sooner extinguished by liberatory prescription.

Art. 1310.— If the immovable has been assigned by a person other than the true owner, prescription becomes effective in favour of the person in possession, as against registered mortgage creditors, after such lapse of time as is necessary in order for him, according to whether he acted in good or bad faith, to obtain prescription against the owner. The same applies to any person who is in possession of the immovable without any title thereto.

Art. 1311.— Prescription extinguishing mortgages in favour of third holders is not interrupted by the renewal of registration, but only by voluntary acknowledgment on the part of the holder, by a summons served on him to abandon or to pay, such as is provided for in Art. 1274. or by any other judicial or extrajudicial measure tending to give effect to the mortgage right.

Art. 1312.— Prescription in favour of the third holder against a mortgage is not suspended by any term of time or condition affecting the claim.

APPENDIX. PROVISION FOR MORTGAGES APPLICABLE TO PRIVILEGES OVER lMMOVABLES;

Art. 1313.— The provisions of Sections III, V, VI and VII of this Chapter are applicable to rights of privilege over immovables, in so far as they are not opposed to the special rules governing the same, as established in the preceding Chapter.

BOOK V. EVIDENCE AND PRESCRIPTION. PART I. EVIDENCE. PRELIMINARY PROVISIONS.

Art. 1314.— Any person who in a judicial proceeding, makes in his own interest a positive or negative allegation of fact must prove the same, that is must demonstrate the truth thereof to the judge. The adversary has in his turn either to substantiate his denial of the fact made out against him, or to prove facts which he alleges do away with the consequences thereof.

Art. 1315.— A plaintiff or defendant who fails to substantiate, as by law required, all or part of his allegations, or who has not succeeded in convincing the judge, in cases in which he has free power to appreciate the evidence, must fail in his petition or defence on the points that are not substantiated.

Art. 1316.— A party can apply to the Court by way of original application, and without any proceedings having been instituted, for leave to give evidence as to facts the verification of which is of importance to him for the future, upon his showing that such an interest exists and that there is danger of losing such means of proof.

Art. 1317.— The rules hereinafter laid down apply equally to the proof of both real and personal rights. They are without prejudice to any special provisions as to evidence contained in the three preceding Books. Subject to what is specially provided in regard hereto in Book I, they apply also to questions concerning personal status.

Art. 1318.— Evidence consists of: 1 The personal experience of the Court; 2. The testimony of man, which constitutes direct evidence; 3. Presumptions, or indirect evidence.

CHAPTER I. THE PERSONAL EXPERIENCE OF THE COURT.

Art. 1319.— The Court can decide the matter in litigation by personal experience, where it acquires certainty as to the facts alleged : 1. By hearing the statements of the parties or their representatives anti by an examination of the objects in litigation and the documents of the action ; 2. By a visit to the scene of litigation ; 3. By a report of experts.

SECTION I. HEARING THE PARTIES, EXAMINATION OF THE OBJECTS IN LITIGATION AND THE DOCUMENTS OF THE ACTION, AND INTERPRETATION OF THE LAW.

Art. 1320.— Where, in cases other than those in which there is an admission of the party, it appears from the statements and explanations of the parties or their representatives before the Court that the claim or plea, either in chief or incidental, is not justified, or that it is premature, the Court cither dismisses the same or postpones the decision thereof. The same applies, where such conviction on the part of the Court results from an examination of the objects in litigation or the documents of the action other than the proofs in writing.

Art. 1321.— If the litigation only relates to the assessment of damage sustained, of profit lost, or of any other value to be furnished on grounds that arc not disput ed, and the Court, after having heard the parties or their representatives, has the requisite material for arriving at such assessment, it can itself make the same.

Art. 1322.— If the litigation depends only on points of law in regard to facts that are not disputed, the Court, after having heard the parties or their counsel, derives its conviction from the provisions of the law interpreted according to its spirit as well as according to its terms. In case of silence or insufficiency of the law it must decide the litigation according to the general principles of positive law, of equity, and of natural reason.

SECTION II. VISITING PREMISES.

Art. 1323.— Where, in actions relating to the boundaries of lands, real servitudes, possession, damage to property, the performance of works on any tenement, or other similar disputes, or where there is only question of establishing the state of any movable which cannot be easily moved, the judge considers it necessary or advisable for throwing light on the proceedings to make himself directly and in person acquainted with the facts alleged, be can, either of his own motion or on the application of any of the parties, himself go for such purpose to the place where the objects of the litigation or the elements necessary for its decision happen to be. Where the Court that is sitting consists of several judges, it is to appoint one of its member as judge-commissary to make such visit and to furnish it with a report thereon.

Art. 1324.— The parties must be summoned in advance by the judge to be present at the time of his visit, in person or by mandatory, at the place, day, and hour fixed by him ; but neglect on their part to be present does not affect the validity of such visit.

Art. 1325.— The judge can take with him when making his visit of inspection a ZU~e~ competent expert, according to the nature of the litigation. Where the expert is named in the judgment ordering the visit, the rules with respect to inspections as laid down in the following Section are to be observed. Where the expert is only called in at the time of making the visit, in order to assist the judge in his examination, he is not sworn and does not make a report to the Court; but the fact of his being present and his opinion are to be set out in the judge's report.

SECTION III. INSPECTION BY EXPERTS.

Art. 1326.— In cases, other than those in which the Courts are by law required to have recourse to an inspection by experts the Court can always, where the deciding of the litigation demands some special knowledge, order, cither of its own motion or on the application of any of the parties, the making of a report by experts in order to assist its own personal experience. The judgment ordering an inspection is to specify the facts in respect of which it is to be held.

Art. 1327.— One or three experts are to be appointed by the judgment according to the importance or difficulty of the matter in litigation. The parties can, however, after having been informed of their right by the Court, agree amongst themselves on one or three experts to be appointed by the Court. Where they only agree that they are each to propose one, the third expert is to be selected by the Court.

Art. 1328.— Unless the parties agree otherwise no person can be appointed by the Court as expert, unless he is a Japanese subject and enjoying the exercise of civil rights. Nevertheless, if the deciding of the matter in litigation requires the examination of foreign documents or products, or if it is impossible to find in the locality Japanese subjects with the necessary qualifications, the Court can appoint one or more foreign experts after having heard what the parties have to say with reference thereto, but it must state in its judgment the fact of such impossibility, as well as the fact of the parties having been heard.

Art. 1329.— The experts take oath, in the form prescribed in the Code of Civil Procedure, to discharge their mandate with care and fidelity. Such oath is taken before the Court ordering the inspection or before the Court of the place where the inspection is to be held.

Art. 1330.— The inspection is to be made in the presence of the parties, or in their absence if they have been properly cited to appear. The grounds on which experts can be challenged and the form in which their reports are to be drawn up and presented to the Court are provided for in the Code of Civil Procedure. The preceding provisions are to be applied, in so far as is practicable, where the Court deems it advisable for the purpose of throwing light on the proceedings, in respect of facts adduced on one side or the other, to obtain the opinion of persons versed in scientific, technical, or artistic subjects.

Art. 1331.— The Court is not bound to follow the opinion of the experts, even though the same be unanimous. It can, moreover, order a fresh inspection, either in whole or in part, for which it will itself, if it thinks it advisable, appoint new experts. It must in every case mention in its judgment in the main action that it has made itself acquainted with the reports of the experts.

CHAPTER II. THE TESTIMONY OF Man OR DIRECT EVIDENCE.

Art. 1332.— There is direct evidence resulting from the testimony f man : 1. In private writings ; 2. In verbal ad missions or acknowledgments made in judicial proceedings ; 3. In the taking or refusing of the extrajudicial oath ; 4. In an authentic instrument, that is in the testimony of a public official; 5. In the testimony in judicial proceedings of individuals.

SECTION I. PRIVATE WRITINGS.

Art. 1333.— The probative force of private writings is greater or less extensive according to whether they are or arc not signed or sealed by the person against whom they are set up.

SUBSECTION 1. WRITINGS UNDER PRIVATE SlGNATURE OR SEAL.

Art. 1334.— A private document containing the assertion or acknowledgment of a fact unfavorable to the party against whom it is set up and bearing his written signature and usual seal or stamp or one or other of such marks constitutes on his part an extrajudicial admission or testimony against him. Letters of correspondence having the same purport and likewise signed or sealed have the same probative force as documents drawn up in form.

Art. 1335.— Any person in whose favor there exists a document under private signature or seal can at any time, and even before any legal proceedings, call judicially upon the person whom be alleges or believes to have signed or sealed the same to acknowledge the handwriting, signature, or seal. The alleged signatory must cither acknowledge or formally deny, and either all together or separately, the genuineness of his writing, signature or seal. If. after having had his attention drawn by the Court to this provision of law, he refuses to deny all or part of the document, the Court may declare that the document is to be taken as acknowledged in so far as the same has not been formally denied.

Art. 1336.— In the case of a seal, the person to whom it is submitted can, whilst acknowledging the identity of his seal, deny that it was placed thereon by himself or with his authority, but he is bound to furnish proof thereof by all possible means. If this reservation has not been made by him before signifying his acknowledgment, he cannot subsequently avail himself of such defence. In like manner, where he has acknowledged his signature or seal, he is no longer to be permitted to allege any duress, mistake, or fraud by which his signature or seal was obtained, if such duress had at such time ceased, or if the mistake or fraud had been already discovered by him, and he made no reservations with respect thereto. Such reservations, if any, are to be mentioned in the judicial document that formally states the acknowledgment of the writing.

Art. 1337.— Where the demand for acknowledgment is preferred against the heir of the alleged signatory or against any person claiming under him or against his representative, the defendant can confine himself to declaring, either that he is not generally acquainted with the signature or seal of the person he represents, or that he cannot speak with certainty as to the genuineness of their use in the case in question. Such heir, person claiming under the alleged signatory, or representative, docs not lose the right to avail himself of any grounds of nullity resulting from the seal having been illegally placed thereon or from defects of consent, even though he may have omitted to make any objections or reservations with regard thereto.

Art. 1338.— The acknowledgment of a signature or seal, even though made without reservation, docs not deprive the defendant of the right to subsequently prove that the signature or seal is a forgery, or that the signature or seal in blank has been fraudulently made use of. Such misuse, however, of a signature or seal in blank cannot, unless it has been the subject of reservation, be set up as grounds for nullity of the document of title against third persons who have treats ed in good faith in consequence of such document, knowing it to have been acknowledged without reserve.

Art. 1339.— Where a document under private signature or seal has been countersigned or countersealed by one or more witnesses, these are if possible to be called for the purpose of verifying the hand writing.

Art. 1340.— The formalities and periods of time to be observed in applications for verification of handwriting, seals, or sig natures, and the cases in which, in default of the defendant or his representatives appearing, the seal or signature can be taken to be acknowledged by them, are determined by the Code 6f Civil Procedure. The rules of procedure for the verification of handwriting in the case of a formal denial thereof by the alleged signatory, or of the absence of acknowledgment thereof by his heir or person entitled under him, are laid down in the same Code.

Art. 1341.— An instrument under private signature or seal intended to formally set out a synallagmatic or bilateral contract must be prepared, and signed or scaled, in as many originals as there are principals to the same with opposing interests. The number of originals that have been drawn up must, moreover, be noted on each original. Nevertheless, the parties can prepare only one original if they agree that it shall remain deposited in the hands of a third person designated by them in the said instrument; in this case such person must communicate its contents to each party whenever required, but cannot part with its possession without the consent - of all.

Art. 1342.— The drawing up of the instrument in several originals and the noting of the number that have been drawn up, or the deposit which takes the place thereof, is regarded as a condition to which the parties have subordinated the forming even of the agreement. Nevertheless, the party who has performed in whole or in part a contract, the proof of which has not been prepared in conformity with the preceding article, is not at liberty to avail himself of the non-fulfilment of such condition.

Art. 1343.— Where an instrument under private signature or seal setting forth a unilateral contract contains a promise to give, to pay, or to hand over a sum of money or other things of quantity, and the body of the document has not been written out by the debtor or his representative, he must, in addition to his signature or seal, make a note with his own hand saying “correct” or “approved” for such sum or quantity. Such “correct” or “approved” can, however, be replaced by the countersignature of two witnesses. Where there are two or more joint and several debtors the “correct” or “approved” of one only is sufficient. If the instrument is written out in foreign characters the sum or quantity must be mentioned therein, or in the “correct” or “approved,” in words and not in numbers.

Art. 1344.— Where there is a discrepancy between the sum or quantity in the body of the document and that in the “correct” or “approved,” the obligation is to be deemed to be only for the less sum or quantity, and notwithstanding that the body of the document and the “correct” or “approved” be both in the handwriting of the debtor; without prejudice, however, to cases where it is proved by writing or otherwise on which side the mistake lies.

Art. 1345.— A document bearing only the signature or seal of the debtor, and not clothed with the “correct” or “approved” or with the countersignature or counterseal of two witnesses as above prescribed, can, however, be made use of as a part proof in writing so as to admit of proof by witnesses, but only to the extent of the sums of money or quantities which are mentioned in it. The same applies where a document has not the amounts written out in full in cases in which this is prescribed. A debtor who has fulfilled in whole or in part the obligation contained in such a document can no longer dispute the same to the extent to which fulfilment has taken place.

Art. 1346.— The formality of duplicate originals, or of a “correct” or “approved”, is not required on the part of traders, except where the same is specially prescribed by the commercial law.

Art. 1347.— An instrument under private signature or seal, written out in conformity with the preceding articles, and acknowledged or taken by the Court as acknowledged by the person against whom the same is set up, constitutes conclusive proof against him as regards its operative part and the statements contained in it, which have a direct relation to such part or arc complementary thereto. Other statements can only serve as part proof in writing. The principle of the indivisibility of admissions, as laid down in Art. 1365, applies, moreover, with the same distinctions to the different parts of the document.

Art. 1348.— Where a document is attacked on the ground of misuse of a signature or seal in blank, or of forgery, as in Art. 1338 mentioned, its probatory force is suspended by the sending of the accused person before the criminal Court, and civil judgment is postponed until the decision of the said Court has become final. If criminal proceedings have not been taken in consequence of the death of the suspected person or for any other reason, the Civil Court is to postpone deciding the main action, until it has given its decision on the plea of non-admissibility based on the alleged offence. Where a preliminary criminal enquiry is pending, the Civil Court can also, upon the application of either of the parties or of its own motion, postpone rendering judgment.

Art. 1349.— Documents under private signature or seal have the same effect as evidence either in favor of or against persons entitled under the several parties as between the parties themselves, where such persons have treated with the parties subsequently to the making of such documents ; but their date cannot be relied on to make distinctions between persons claiming under the parties unless it is certain.

Art. 1350.— Documents under private signature or seal acquire a certain date ; 1. By fiscal registration; 2. By their being mentioned in the report of an affixing of seals or of taking an inventory, or in any other authentic document, or even in a document under private signature or seal having a certain date ; 3. By the death of any of the signatories, whether parties or witnesses, or by a judicial declaration of their absence. In such cases, the document takes its date from the date of the registration, from the date of the document in which the mention is made, from the date of the death, or from the date of the last news.

Art. 1351.— Where, in the case of the mention of one document in another, the rights constituted by the two are inconsistent, the preference belongs to that document which is mentioned as preexisting. In other cases in which two documents acquire simultaneously certain date, the preference belongs to that which is strengthened by possession, and in the absence of possession to that which is first made use of in judicial proceedings. If neither instrument has a certain date, preference is regulated by like distinctions. Nevertheless, such preference is in every case lost to a party against whom it is proved by his admission that he had, at the time when he treated, knowledge of a document inconsistent with his own, although the same had no certain date.

Art. 1352.— Receipts or discharges and causes for compensation, although not having a certain date, can be set up against assignees of rights of claim, persons entitled by subrogation, and execution creditors, where there is no ground for believing them to be antedated. In commercial matters, the date of documents under private signature or seal is, in the absence of proof of mistake or of fraud, presumed to be correct.

SUBSECTION 2. WRITINGS WITHOUT SIGNATURE OR SEAL.

Art. 1353.— Traders books arc evidence as against them with respect to every one, including even non-traders; but the admission resulting there from cannot be divided by any person relying on such books. They are not evidence in their favor as against non-traders.

Art. 1354.— The weight to be attached as between merchants to such books is regulated in the Commercial Code.

Art. 1355.— The books of non-traders, and their private memoranda and papers are never evidence in favour of the person in whose hands they are. They are evidence against him under the distinction hereafter mentioned.

Art. 1356.— The writings of a creditor are evidence against him : 1. If they formally state a payment received or contain any other entry of a liberatory nature in favour of the debtor, unless the creditor prove that the same had reference to a receipt that was prepared to be given to the debtor in return for payment; 2. If a liberatory memorandum has been written on the document of title of the debtor or on a prior receipt, and if such writing is in his hands.

Art. 1357.— The writings of a debtor arc evidence against him if, containing mention of an obligation that is onerous for him, they state in addition that they were intended to serve as title to the creditor.

Art. 1358.— In the cases provided for in the two preceding articles, writings that have been crossed out or cancelled are not to be taken into consideration, unless it be proved that such cancellation has been made fraudulently or by mistake.

Art. 1359.— Non-traders are not bound to produce in judicial proceedings their books and private papers ; but they cannot withdraw them, if they have voluntarily produced them, until extracts have been made in their presence, or in their absence if they have been duly summonsed, of so much of the same as relates to the matter in dispute.

SECTION II. VERBAL ADMISSIONS.

Art. 1360.— The verbal admission by a party of a fact which may produce as against him legal consequences can be cither judicial, that is made in judicial proceedings, or extra-judicial.

SUBSECTION 1. JUDICIAL ADMISSIONS.

Art. 1361.— A judicial admission can be either spontaneous, or else obtained upon questioning as to facts or things in manner in the Code of Civil Procedure provided.

Art. 1362.— An admission, in order to be valid, must be made by a party who has capacity to dispose of the right which depends on it, and the facts acknowledged must be those of which the law docs not prohibit proof. An admission made by a mandatory is only valid where made by virtue of special authority, unless it has reference to a fact occurring during his management ; without prejudice, however, to what is provided in the Code of Civil Procedure with regard to admissions made by the judicial representatives of parties, and to the formalities and conditions of the disavowal which may be made with respect to their statements.

Art. 1363.— Where an admission, made in conformity with the preceding article, has been accepted by the adversary or has been formally received by the Court, it constitutes conclusive proof against the person making it. Nevertheless, it may be withdrawn on ground of mistake of facts.

Art. 1364.— It cannot be withdrawn on the ground of mistake of law, or of the legal consequences of the fact acknowledged. A direct or indirect acknowledgment of a right of the adversary does not, however, deprive the person making the same from being able to dispute the original grounds or the present existence of the alleged right.

Art. 1365.— Any person desiring to avail himself of a complex or modified admission cannot divide it as regards the circumstances and the different facts stated: he cannot put aside declarations which narrow the consequences of the admission, nor even those that entirely remove them, provided the facts, although of prior or subsequent date to the principal fact, arc connected with it. Nevertheless, allegations that modify the principal fact can be contested by the ordinary means of proof.

Art. 1366.— The consequences of judicial admissions are not invalidated by want of jurisdiction of the Court, unless such want of jurisdiction constitutes a breach of public order. Where they are so, the admission has only the value of an extra-judicial admission.

Art. 1367.— The Code of Civil Procedure, when treating of the examination of witnesses and questioning of the parties as to facts and things, determines the cases in which, where a party is required to answer as to the existence or not of certain facts of the action, he is to be held to acknowledge the same in the absence of denial.

Art. 1367 bis.— Where a party by reason of infirmity or for other established reasons is not able to speak, but can answer the Court by writing or by signs in a way that is deemed clear by the Court, the rules governing judicial admissions are to be applied.

SUBSECTION 2. EXTRA-JUDICIAL ADMISSIONS.

Art. 1368.— An extra-judicial admission is not valid unless made cither verbally in the presence of the adversary or his representative, or in a letter or other document addressed or forwarded to either of them. Apart from this latter case, a verbal admission, unless it has been repeated before an authority with competency to receive and record it, cannot be proved by witnesses except in cases in which the subject-matter of the litigation itself admits of the evidence of witnesses.

Art. 1369.— The provisions of the preceding articles concerning the capacity necessary for the validity of judicial admissions, their probative force, their withdrawal, and their indivisibility are applicable to extra-judicial admissions. Nevertheless, the judges before whom they are set up should only take into consideration such admissions as are so precise and so formal as not to admit of being attributed to surprise or inadvertence.

Art. 1370.— The preceding provisions are without prejudice to those cases in which performance in whole or in part is considered by law as tacit admission of an obligation.

Art. 1371.— An extra-judicial admission, although validly withdrawn, produces, interruption of prescription in favor of the adversary; but the prescription begins to run again from the day of the withdrawal for so much of the time as had still to run at the date thereof.

SECTION III. EXTRA-JUDICIAL OATHS.

Art. 1372.— A judge can under no circumstances defer the oath to a party who is plaintiff or defendant, either in chief or as intervener, as to his petition or defence, nor as to the amount of the interests in dispute. The parties, also, cannot defer the oath to each other in judicial proceedings with respect to the same points. The deferring of such oath can only be extra-judicial, and in compliance with the conditions hereinafter prescribed.

Art. 1373.— The parties can agree to defer to each other the extra-judicial oath to prevent or put an end to a dispute, although no evidence may yet have been adduced in favor of either side. Such agreement has the character of a compromise and it is as such governed by the provisions of Arts. 757 to 762, but subject to the modifications hereinafter mentioned.

Art. 1374.— Where the parties agree that their differences are to be settled in full, or in part, by the oath of either of them, they must determine ; 1. To which party the oath is to be deferred; 2. As to what facts, positive or negative, it is to be deferred ; 3. In what place, at what time, and in the presence of what persons the deferring is to be made ; 4. Whether the party is to swear by calling upon the divinity of his re ligion to be witness to his veracity or whether he is simply to affirm •• upon his honor” or “upon his conscience.”

Art. 1375.— Such agreement cannot be proved by witnesses, except in cases in which, in conformity with Section VIII hereafter, the nature and importance of the matters in litigation allow of such proof. The taking of the oath, or the making of solemn affirmation, and its conformity with the agreement can be proved by the testimony of the persons who were summoned by the parties to be present thereat.

Art. 1376.— The party to whom the oath is deferred can refer it back to the other party in the same form and under the same conditions.

Art. 1377.— The oath can only be deferred or referred with respect to facts that are personal to the adversary, or with respect to the personal knowledge he may have of facts that are not personal to him, but they must in either case be of a nature to influence the decision of the matters in litigation.

Art. 1378.— A party who has proposed by way of compromise the deferring the extra-judicial oath, or who, having accepted such compromise, has referred back such oath, is to be deemed to acknowledge the positive or negative facts with respect to which he has deferred or referred back the oath, on condition that •r they are affirmed in proper form. He cannot withdraw his proposal if it has been accepted, so long as the time allowed for taking the oath has not expired. On the other hand, where the party who has accepted the proposal refuses to take the oath or to refer it back to his adversary, he is to be deemed to tacitly admit the existence of such facts.

Art. 1379.— Where the proposal has not been withdrawn, the oath can still be taken, even though the time fjxed for so doing has passed, if the adversary is present in person or by special representative. Absence of the adversary, however, does not affect the validity of the oath when taken at the time and place agreed on.

Art. 1380.— Where the oath has been once taken in conformity with the compromise, it cannot be impeached as false in civil proceedings by the party who deferred it or referred it back.

Art. 1381.— The effect of an extra-judicial oath as between the different persons interested incases of suretyship.solidarity, or conventional indivisibility, is provided for in Arts. 1028, 1059, 1060, 1062 and 1092.

SECTION IV. AUTHENTIC WRITINGS.

Art. 1382.— An authentic writing is the testimony of a public official with respect to facts that he has been called upon by the parties to verify. A writing drawn up by a public official in his capacity of representative of the State or of any public office is also an authentic writing. A writing is not authentic unless the public official who has received it is competent as regards the place, the nature of the writing, and the persons who appear therein as parties, is not himself temporarily incapacitated, and has complied with the formalities required by law. The competency of notaries and other public officials required to lend their services to the parties, as well as the formalities requisite for their writings, are determined by special laws and Regulations.

Art. 1383.— A writing prepared in conformity with the preceding article is evidence. until fraudulent alteration be recorded, as to ail declarations of the public official with regard to facts anti statements relating to such writing of which he is either himself the author or which have taken place in his presence. It is in like manner evidence of the date it bears. A writing drawn up under the name of a public official with his signature anti seal attached is presumed, in the absence of fraudulent alteration being complained of or recorded, to have emanated front him. The procedure with regard to recording fraudulent alteration is regulated by the Code of Civil Procedure.

Art. 1384.— The dispositions of Art. 1348 with respect to the suspension, in consequence of proceedings being taken on ground of fraudulent alteration, of the probatory force of a writing under private signature or seal that has been duly acknowledged are applicable to authentic writings. Art. 1347 also applies to them in regard to various declarations having a direct or indirect relation with the chief provisions.

Art. 1385.— If the writing fails to comply with any of the conditions above prescribed for its validity as an authentic writing, but is validly signed or sealed by all the parties, it has the weight of a writing under private signature or seal, although it may not comply with the condition as to duplicate originals, or the memorandum of “correct” or “approved,” as required by Arts. 1341 and 1343.

SECTION V. DEFEAZANCES.

Art. 1386.— The parties can by a defeazance, that is by a declaration intended to be kept secret, modify or destroy in whole or in part the effects of an authentic writing or of a writing under private signature or seal; such defeazance, however, even though made in an authentic form or under private signature or seal with certain date, only takes effect against the signatories themselves and their heirs. Nevertheless, defeazances can be set up against creditors and persons claiming under the parties by virtue of special title, if it be proved, in conformity with general principles, that they had knowledge thereof when treating with such parties.

Art. 1387.— Defeazances relating to immovable rights become clothed with the usual consequences of an ordinary document so soon as they have been made public, either by transcription or registration, or by a note in the margin of cither.

Art. 1388.— Defeazances can always be set up against a parly or his heirs by persons claiming under the other party whether under general or special title.

SECTION VI. ACKNOWLEDGEMENTS.

Art. 1389.— An acknowledgment is a writing by which a party acknowledges the existence, in opposition to his interests, of a prior instrument of title, cither authentic or under private signature or seal. It does not relieve the creditor from producing such prior title, and in so far as its contents are greater, less, or different, they remain inoperative.

Art. 1390.— The instrument of acknowledgment, however, replaces the prior title in the three cases following : 1. If it states that it reproduces the tenor thereof; 2. If it states that it is intended to replace it; 3. If it is of twenty years dale and has already by itself served for the exercise of the creditor's right.

Art. 1391.— Where, in cases other than the preceding, the creditor cannot produce his prior title, the acknowledgment only serves in his favor as a part proof in writing. In every case it interrupts the running of prescription.

SECTION VII. COPIES OF DOCUMENTS.

Art. 1392.— Copies of documents do not relieve the party relying thereon from producing the original, unless he can prove the same to be lost. Where the original is an authentic writing, or a writing under private signature or seal which has been acknowledged in judicial proceedings, and the same is deposited in the archives of a public official, the production thereof before the Court is effected in such form and under such conditions as may be determined by the Court in conformity with the Code of Civil Procedure and the Regulations for public officials.

Art. 1393.— In the case of loss of the original, a copy thereof has equal probatory force in the four cases following : 1. If it be the original copy of an authentic writing prepared by the public official who received the same: 2. If, being a copy of an authentic writing, or of a writing under private signature or seal, acknowledged in judicial proceedings, that is deposited in the records of a public official, it has been prepared by the latter upon the request and in the presence of the parties; 3 If the copy has been prepared under order of the Court by the official, who is the lawful depositary, even though temporarily, of the original, in the presence of the parties or in their absence if duly summonesd ; 4. If, in cases other than the three . above mentioned, the copy has been prepared by the official who is legal depositary of the original and is of more than twenty years date without having been made the subject of attacks. The copy must mention : In the first case that it is the original copy; In the second case that the parties were present; In the third case that they were summonsed to be present by order of the Court, and whether they were present of not; In every case the copy must mention that it has been compared with the original or that it agrees therewith.

Art. 1394.— In cases, other than the four in the preceding article mentioned, copies of documents prepared by a public official can only serve as part proof in writing.

Art. 1395.— Copies of copies that have been prepared by a public official can only be used as mere information, and only in cases in which proof by witnesses is admissible. Nevertheless, there is part proof in writing in the case of the copy, or the note of the first copy, of an authentic act made in a public register of transcriptions or registrations. A similar copy, or note, of an original document under private signature or seal that has been acknowledged in legal proceedings will, in like manner, only have value as a part proof in writing ; but if the copy is in full and is twenty years old without having been disputed, it constitutes conclusive proof in conformity with Art. 1393, 4.

SECTION VIII. THE TESTIMONY OF INDIVIDUALS OR EXAMINATION OF WITNESSES.

Art. 1396.— Every fact of a nature to create, transfer, modify, or extinguish a real or personal right must be put in writing where the interests resulting therefrom for both or either of the parties exceeds the value of 50 yen at the time at which such fact takes place. The evidence of witnesses can only be received by the Courts where such value is not exceeded or in cases expressly or impliedly excepted by law ; without prejudice, however, to what is laid down in relation hereto in the Commercial Code.

Art. 1397.— In synallagmatic contracts only the amount of the most extensive right is to be taken into consideration in considering the necessity of a document in writing. Nevertheless, in the case of an association having, in the teams of Arts. 766, the character of a juridie person, the estimated value of the interest involved is to be based upon the total amount of its capital.

Art. 1398.— Where the subject matter of a claim is not a sum of money, and the defendant objects to the evidence of witnesses alleging that the value of the matter in litigation exceeds 50 yen, the Court is first to put a preliminary valu ation thereon upon a consideration of the circumstances of the case, or by means of a survey.

Art. 1399.— Where a writing has been prepared, the evidence of witnesses, although the interests involved are less than 50 yen, cannot be received to prove the contrary of what is contained in such document nor to vary it, nor to prove what may have been said before, at the time of, or after its preparation, so as to modify its purport. This prohibition does not exclude the evidence of witnesses, in manner above mentioned, to establish the payment, release, novation or any other grounds of extinction of an obligation, or a modification of later date of the right set forth in writing. In every case, the omission of the date or of the place of the fact alleged, or of the time or place fixed for performance, can be supplied by the evidence of witnesses, if there is not attached there to an interest which, when joined to the principal matter, brings up the value to more than 50 yen.

Art. 1400.— Where the interests in dispute exceed 50 yen, the plaintiff cannot prove the same by witnesses by limiting his claim to a sum of money or to a part of the thing not exceeding the fixed amount. This also applies where the claim is for a sum of money or for a thing of value of less than 50 yen, but the same is the balance or a part of a sum of money or of a thing of higher value than that figure.

Art. 1401.— Where, in cither of the cases mentioned in the preceding article, the result of the examination of witnesses is to disclose interests originally of value of more than 50 yen, the examination must be annulled by the Court that has received it. The same applies in all other cases in which the examination itself discloses facts or circumstances by reason of which it was not by law admissible.

Art. 1402.— The above provisions do not prevent the plaintiff, in cases where the scale of 50 yen is only exceeded in consequence of compensatory interest or of a penal clause, from waiving his right to these accessories in order to prove by witnesses his title to the principal. Where, however, the excess is only the result of moratory interest, or of damages not stipulated for in case of delay or nonperformance, the evidence of witnesses is admissible in respect of the whole claim.

Art. 1403.— Any person instituting several claims which are not entirely established by writings, and in respect of which the evidence of witnesses is admissible, must unite them in one and the same action whatever their cause or origin may have been, provided they arc all due and come within the competence of the same Court. In default of his so doing he is no longer to be allowed to prove by witnesses the claims that have been omitted.

Art. 1404.— Where one party sets up against the other several distinct rights the sum total of which exceeds the value of 50 yens, he is not to be allowed to unite them and prove them by witnesses as in the preceding article mentioned, unless such rights proceed from different causes, either in his own person, or in that of the persons from whom he derived them.

Art. 1405.— Proof by witnesses is admissible, without regard to the value of the matters in dispute, and notwithstanding that the same may tend to prove otherwise or contrary to what appears in writing, in the cases following : 1. If there exists a part proof in a writing, either authentic or under private signature or seal, emanating from the person against whom it is set up or from any person represening him or by whom he has been represented. and rendering probable the fact alleged ; 2. Where the creditor first proves by witnesses or otherwise that he has lost his document of title by the happening of some event due to irresistible force, or by some fortuitous event which was not imputable to his own fault or neglect; 3. Where it has not been possible for the creditor to procure a proof in writing at the time the alleged fact took place.

Art. 1406.— The third exception mentioned in the preceding article finds its chief application : In the cases of necessary deposit in Art. 916 and the first paragraph of Art 917 mentioned ; In the ease of obligations contracted under circumstances of accident, unfore seen danger, or urgent necessity; In the case of obligations resting on a cause other than agreement. Nevertheless, if, in these latter cases, the obligation that is alleged to have arisen from an undue enrichment, an unlawful injury, or from the provisions of the law presupposes some legal transaction of such a nature as ought to be proved by writing, this evidence must first be furnished.

Art. 1407.— Where, iq cases other than those in which the evidence of witnesses is admissible by law, the party' interested in objecting thereto consents to its being taken, the Court may either refuse the same, or, if the matter appears to it simple, may allow it, but only in the form of a summary examination taken at the hearing of the action.

Art. 1408.— The witnesses before giving their evidence must swear in the prescribed form “to speak the truth and the whole truth.” The Code of Civil Procedure contains the rules relating to the formalities and the time to be observed in respect of the examination of witnesses in chief and in reply, the characteristics requisite for facts that it is desired to prove by witnesses, anti the grounds for challenging or objecting to witnesses.

Art. 1409.— When the examination is concluded, whether witnesses have been produced in favor of the opposite party or not by means of examination in reply, the Court, no matter how great the number or position of the witnesses produced on one side or the other may have been that have not been validly challenged or objected to, is not bound by their testimony; and it has to decide according to its own firm conviction.

SECTION IX. COMMON REPORT.

Art. 1410.— Independently of those cases in which evidence of common report is specially authorized by law, such evidence is admissible each time that the law declares its provisions to be applicable to certain facts if they are notorious. In evidence of common report the witnesses can depose to the knowledge they have of facts, not directly or personally, but only by public notoriety.

CHAPTER III. PRESUMPTIONS OR INDIRECT PROOFS.

Art. 1411.— Presumptions are those inferences or consequences which the law. in the absence of human testimony, itself draws from known facts and applies to unknown facts, or which it entrusts to the intelligence and prudence of the judges to draw and apply. The former are called “presumptions of law” the latter “presumptions of fact or of man.”

SECTION I. PRESUMPTION OF LAW.

Art. 1412.— According to the degree of their probatory force and the cause giving rise to them, presumptions of law are: 1. Absolute, of public interest ; 2. Absolute, of private interest; 3. Simple.

SUBSECTION 1. ABSOLUTE PRESUMPTIONS OF LAW OF PUBLIC INTEREST.

Art. 1413.— Absolute presumptions of law of public interest do not admit of proof to the contrary, except in the cases and by the means expressly determined by law ; these presumptions are: 1. The binding effect of what has been judicially decided'; 2. Acquisitive or liberatory prescription which is treated of in Part II of this Book.

Art. 1414.— Whatever has been judicially decided is presumed to be true. Nevertheless, judgments which have not become final can be attacked by the parties in such manner and within such times as is determined in the Code of Civil Procedure.

Art. 1415.— Where, after a judgment has become final, the same dispute is again made the subject of judicial proceedings, they arc to be dismissed by reason of the binding effect of what has been judicially decided.

Art. 1416.— Where a claim in whole or in part concerns public order the plea of non-admissibility on the ground of its having been judicially decided can be introduced by the Court of its own motion. In other cases it must be set up by the party interested.

Art. 1417.— To admit of the plea of matter already judicially decided being set up against the new claim, it is necessary that this should show when compared with the prior claim : 1. Identity of the subject matter claimed, or of the alleged right ; 2. Identity of the cause of the right relied on : 3. Legal identity of the parties, both plaintiff and defendant.

Art. 1418.— Where the subject matter of the new claim only differs from that of the former in extent or quantity, it is to be considered as having been included in the former in all cases in which, from the conclusions arrived at, the judges of such claim had the power to grant such amount, if they had found it just to do so.

Art. 1419.— Where the first petition had for its aim the rescission, revocation, or cancellation of an agreement or will, the different causes of action which were not submitted to the first judges, but which were then existing and of like nature, and known to the plaintiff, arc to be presumed to have been abandoned by him, and cannot serve him as ground for a new claim. The same applies to defects of form which have not been set up in a prior action directed to having a document declared void on ground of defect of form. The various kinds of defect of consent and the different kinds of want of capacity arc, for the purposes of this article, to be considered as causes of like nature in an action for rescission or nullity, and the various cases of non-fulfilment of contracts as like causes in an action for cancellation.

Art. 1420.— The binding effect of what has been judicially decided is attached not only to the operative part of a judgment, but also to its reasons, where the same are based on the cause orabsence of cause for the alleged right.

Art. 1421.— Legal identity of the parties exists where they have personally appeared in a like capacity in the prior action, or where they have been represented therein by the persons from whom they acquired their rights, or by conventional, legal, or judicial mandatories, or where the association together of different persons interested implies a tacit mandate of mutual representation.

Art. 1422.— Apart from those cases in which the criminal courts have decided with respect to the civil reparation claimed in respect of offences brought before them, all judgments rendered in criminal, correctional, or police matters have the conclusive effect of decided matters in respect of the civil interest attaching to the offence, but only in so far as relates to their decision with respect to the existence of the incriminated act itself, its criminal character, and the guilt of the accused, and which points cannot be again contested in another action.

SUBSECTION 2. ABSOLUTE PRESUMPTIONS OF LAW OF PRIVATE INTEREST.

Art. 1423.— A presumption of law is absolute as of private interest in those cases in which the law, in the interest of persons with particular qualities, annuls certain writings as presumed to have been made in fraud of its provisions. Such legal presumption of fraud docs not admit of proof to the contrary, except in the cases and by the means expressly provided by law. Nevertheless, it can be always upset by an admission or an extra-judicial oath, such as the same are defined in Sections II. and III. of the preceding Chapter.

SUBSECTION 3. SIMPLE LEGAL PRESUMPTIONS.

Art. 1424.— Other legal presumptions are called “simple” and admit of any evidence to the contrary, even though such has not been expressly reserved by law. All evidence to the contrary must, however, be produced in the form and under the conditions belonging to it, such as the same are laid down in the preceding Chapter. Simple legal presumptions can also be combatted with presumptions of fact or of man. in cases in which such evidence is admissible in conformity with Section II hereof.

SECTION II. PRESUMPTIONS OF FACT OR OF MAN.

Art. 1425.— Apart from those particular cases in which the law authorizes the Courts to base their decision upon the circumstances of the case, they can also, in every case in which the evidence of witnesses is admissible, and even though no testimony or other direct proof should have been produced, decide the matters in dispute submitted to them for decision according to their conviction resulting from the state of the facts.

PART II. PRESCRIPTION. CHAPTER I. THE NATURE OF PRESCRIPTION AND ITS APPLICATION.

Art. 1426.— Prescription is the legal presumption of acquisition of a real right, or of discharge from an obligation, by the effect of time under the special conditions determined by the law ; without prejudice, however, to what is laid down in Art. 1481 and following articles with respect to the immediate prescription of movable effects.

Art. 1427.— The presumption of lawful acquisition or release is absolute and of public order: it does not admit of proof to the contrary, except in the cases and by the means determined by law, and such as the same arc in Art. 1498 provided.

Art. 1428.— The consequences of acquisitive prescription relate back to the day on which possession effectively commenced. Those of liberatory prescription, subject to the distinctions in Art. 1461 and following articles mentioned, relate back to the day since which the creditor has been able to exercise the right that he has neglected to exercise.

Art. 1429.— The limit of time allowed by law for the bringing of any particular action before the Courts is regulated by the general rules of acquisitive or liberatory prescription according to the nature of such action ; without prejudice, however, to those cases where the law expressly or impliedly provides otherwise.

Art. 1430.— Prescription can be set up by any person whatever, whether a public body or a private individual. In like manner, it runs against every one, except those in whose favor it is by law declared suspended.

Art. 1431.— Things that arc trafficable arc susceptible of prescription, with the exception of those with respect to which it is by law otherwise provided. Things that arc not trafficable are imprescriptible; this is the case with all property, even though movable, that is the public property of the State.

Art. 1432.— Mere facultative rights that a person can exercise in respect of his own property, or with regard to others, arc not lost through not having been made use of during any particular time, excepting, always, those eases which are otherwise provided for by law, by agreement, or by will.

Art. 1433.— Judges cannot of their own motion introduce supplementarily a ground of action or a means of defence based on prescription ; the same must be set up by the person in whose favor the conditions for the same have been fulfilled;

Art. 1434.— Persons entitled, either under general or special title, through a party interested in setting up prescription can set up the same in his stead, cither as plaintiff, or as defendant. Creditors have the same right in conformity with Art. 359.

Art. 1435.— Prescription can be set up at any stage of legal proceedings ; it may even be set up for the first time on appeal, but it cannot be set up before the Court for final appeals on ground of error in law.

Art. 1436.— Prescription that becomes acquired by lapse of years or months is computed according to the legal calendar. Prescription acquired by a certain number of days is counted by so many 24 hours. The day on which the prescription has begun to run, or that on which it has recommenced its course after interruption or suspension, is not to be counted. The last day must have completely expired.

CHAPTER II. RENUNCIATION OF PRESCRIPTION.

Art. 1437.— Prescription cannot be renounced in advance ; without prejudice, however, to the right of a person in possession to acknowledge in respect of the future the precarious nature of his possession, as in the second paragraph of Art. 1456 mentioned Prescription that has been acquired can be renounced ; so can, even during its course, the benefit of any time that has a ready expired. Prescription is then interrupted as if it was an acknowledgment of the adversary's right in manner in Art. 1454 and following articles provided.

Art. 1438.— Renunciation can be tacit, but it must clearly appear from the circumstances.

Art. 1439.— In order to validly renounce an acquired prescription, there must be capacity to alienate the right that is presumed acquired, or to contract the obligation that is presumed extinguished.

Art. 1440.— Creditors can in their own name, under the conditions and by the means in Art. 360 and following articles mentioned, attack any renunciation of prescription made by their debtor in fraud of their rights.

CHAPTER III. INTERRUPTION OF PRESCRIPTION.

Art. 1441.— Prescription is interrupted where the benefit of the time already run is destroyed by any of the causes hereinafter mentioned. Prescription that has been interrupted begins to run again so soon as the cause of interruption has ceased.

Art. 1442.— Interruption of prescription is natural or civil. Natural interruption only takes place in respect of acquisitive prescription. Civil interruption is common to both kinds of prescription.

Art. 1443.— Natural interruption exists where the person in possession of an immovable, of a universality of movables, or of any individual movable, has been deprived of possession for more than a year by the act of the real owner or of a third party. There is no natural interruption where the temporary deprivation of possesion is the consequence of irresistible force. A new prescription begins to run when possession is recovered.

Art. 1444.— Natural interruption works in favor of every person interested.

Art. 1445.— Where the person in possession has voluntarily relinquished possession during a certain time, his possession is called “discontinuous:” the consequences of discontinuity arc provided for in Art. 1475.

Art. 1446.— Civil interruption results : 1. From the taking of legal proceedings ; 2. From a citation to appear or from a voluntary appearance before a judge of conciliation ; 3. From an order or summons; 4. From a seizure; 5. From a voluntary acknowledgment; Provided always that such steps of procedure, or such acknowledgment, concern the right of the person against whom the prescription is running.

Art. 1447.— A claim made in an action, whether as the main ground of action or only incidentally or by way of counterclaim, interrupts prescription, even though it be void in form or brought before an incompetent Court. Nevertheless, in these two cases of nullity interruption is considered as not having taken place, unless a new citation in due form is given within one month from the judgment dismissing the previous claim.

Art. 1448.— Interruption is also considered as not having taken place : 1. Where the claim has been dismissed on the merits; 2. Where the plaintiff has desisted from pressing it; 3. Where the right to proceed has been declared barred for discontinuity of proceedings during the time fixed by the Code of Civil Procedure for lapse of proceedings.

Art. 1449.— Interruption resulting from a claim preferred before the Courts lasts as long as the action that has been commenced, and until judgment therein has become irrevocable.

Art. 1450.— Interruption of prescription by citation or voluntary appearance in proceedings for conciliation takes place even in eases which do not admit of this preliminary. It results from counter-claims set up, as well as from the original claim. Nullity of the citation for defect of form or for want of competence does not prevent interruption, provided a new citation is properly given within one month of the first being set aside. In the case of conciliation not being effected, or of the defendant not appearing after being duly cited, the interruption is considered as not having taken place unless proceedings are instituted within one month.

Art. 1451.— Interruption resulting from an order to carry out either a judgment or an agreement entered into in executory form is considered as not having taken place unless it is followed up within a year by an execution seizure. Nullity of the order for defect of form does not prevent the interruption of prescription, provided that such order complies with the conditions hereinafter prescribed for interruption by summons.

Art. 1452.— A summons to execute an obligation only interrupts prescription in cases in which it clearly sets forth the subject matter and the cause of the obligation, and where it is followed within six months by the institution of proceedings before the Courts or in conciliation. A summons given to the third holder of a mortgaged immovable to either abandon or to pay the debt, as is in Art. 1274 provided, interrupts as against him the prescription tending to extinguish the mortgage.

Art. 1453.— Interruption resulting from an execution or an attachment only preserves its consequences if the seizure proceedings are regularly continued up to their conclusion, in which case the interruption becomes itself continuous. A provisional seizure does not interrupt prescription unless it is followed within a period of six months by an order, by a taking in execution, or by the institution of proceedings before the Courts or in conciliation. Where such seizure is not exercised against the person himself who is acquiring prescription it has no interrupting effect against him except from the time of his receiving notice thereof.

Art. 1454.— Interruption of prescription by the acknowledgment or admission of the right of the person against whom the prescription is running can take place in judicial proceedings or by an extra-judicial act either verbal or in writing. An acknowledgment made in judicial proceedings can be either spontaneous or elicited upon questioning by the judge.

Art. 1455.— An acknowledgment can be express or tacit. A tacit acknowledgment opposed to acquisitive prescription notably exists where the person in possession acquiesces in a claim to fruits, or to an indemnity for profits or for damage in respect of the thing possessed, or where, on the other hand, such person himself claims an indemnity for necessary or useful expenditure incurred in respect of the thing A tacit acknowledgment opposed to liberatory prescription notably exists where the debtor acquiesces in a claim for interest, or in the payment in full or in part of the debt, or where, on the other hand, he himself makes an offer of payment, even though unaccompanied by actual tender, or applies for a time of grace.

Art. 1456.— A possessor, who acknowledges the right of the true owner, is not as a rule debarred from the right to recommence at once a new prescription, but he can no longer rely on the advantages of his former good faith. He is debarred from prescription in the future if he has become a precarious possessor ; without prejudice, however, to the application of the two cases of Art 197. in which the defect of precariousness in his possession becomes itself purged.

Art. 1457.— laboratory prescription, interrupted by an acknowledgment, retakes its course immediately; but it is for the future subject to any longer time that has been fixed for such prescription, although originally the prescription may have been shorter.

Art. 1458.— An acknowledgment interrupting prescription is valid when it is made by a person with capacity to manage his own property, or with power to manage for another the property affected by the prescription. Nevertheless, the acknowledgment of a husband, of the guardian of a person without capacity, or of a mandatory, having for its consequence the interruption of acquisitive prescription of an immovable by the wife, the person without capa city, or the mandator, is only valid in so far as acquiescence to a claim concerning immovables enters into their special powers.

Art. 1459.— If the fact of an acknowledgment interrupting prescription is disputed, it can be proved by the ordinary means of proof, and by observing with respect to such proof the conditions to which it is subject.

Art. 1460.— The consequences of prescription being interrupted by acknowledgment or otherwise, in so far as regards the different persons concerned in cases of suretyship, solidarity, and active or passive indivisibility, are provided for by Arts 1077, 1061, 1082 and 1091.

CHAPTER IV. SUSPENSION OF PRESCRIPTION.

Art. 1461.— Prescription docs not commence to run against real or personal rights, the extent or exercise of which is dependent on the opening of a succession, until after the opening of the same.

Art. 1462.— Prescription of the action for nullity, which it is open to an heir to bring against the will of, or any agreement made by, the person through whom he is entitled, only commences to run from the time when cither such will or agreement has been set up against him. or has served as ground for the exercise of a right which prejudicially affects him.

Art. 1463.— Rights the exercise of which is dependent on a period of time, whether the same be certain or not, or rights the coming into existence of which is dependent on a suspensive condition only commence to be prescribed from the expiration of such period or from the happening of such condition.

Art. 1464.— In the preceding cases prescription is not suspended against third holders; without prejudice, however, to the right of the party interested who wishes to interrupt the acquisitive prescription of a right of ownership or the liberatory prescription of a right of mortgage to ask for a writing acknowledging his right, ro to have the same judicially acknowledged, without deciding anything furl her.

Art. 1465.— When prescription is suspended or stopped in its course, the time already expired is counted when the prescription begins to run again.

Art. 1466.— Prescription is only suspended in such cases and in favor of such persons as is by law determined.

Art. 1467.— Prescriptions, the length of which is five years or under, run against minors and interdicted persons in the same way as against persons of full age ; without prejudice, however, to their right of recourse against their guardian, if he has had no good grounds for being ignorant of the right which he ought to have exercised. If. in the case of prescriptions of over five years, the normal period of time therefor has expired during minority or interdiction, a supplementary period of one year is allowed to the minor after he has become major, anti to the person interdicted who has regained capacity, or to their heirs of full age, to make good their right. If the time still remaining to run at the moment when the right became vested in the person without capacity was less than one year, the supplementary period is only equal to the length of such time as had still to run.

Art. 1468.— Prescription runs in favor of third persons against a married woman ; without prejudice, however, to her right of recourse against her husband in case of negligence on his part with regard to property that he is managing for her. Nevertheless, if the normal time for prescription is completed whilst the marriage state exists, the wife or her heirs have in the following cases the benefit, from the time of the termination of such state, of the same supplementary time as minors and persons under interdiction : 1. If there be question of rights the exercise of which by the wife is subject to an option that cannot be then acted on in consequence of matrimonial agreements or provisions of law ; 2. If proceedings by the wife against third parties would have ret reacted against her husband under a guaranty or otherwise.

Art. 1469.— The provisions of the two preceding articles do not affect what is laid down in Arts. 567 and 568 in regard to the suspension of the prescription of actions for the nullity of acts done by persons without capacity.

Art. 1470.— Prescription does not run between husband and wife during the marriage state in respect of rights that they are entitled to exercise one against the other.

Art. 1471.— Prescription is suspended against the legal, judicial, or conventional manager of the property of another in his relations with the person for whom he manages, in so far as regards the rights that he is entrusted with preserving.

Art. 1472.— If in cases other than those above provided for, the person entitled was at the time of the period for prescription expiring, in a position in which it was absolutely impossible for him to act so as to make good his right or to interrupt the running of prescription, in consequence of stoppage of means of communication or because the course of local justice was suspended, he can be freed from the forfeiture provided he has brought forward his claim so soon as the preventive cause has ceased to exist. The same provision is to be applied in favor of soldiers and sailors in time of internal or external war. if they have been prevented from exercising their rights in consequence of their employment.

Art. 1473.— Suspension of prescription consequent on indivisibility of real or personal rights is governed by Art. 311 and the second paragraph of Art. 1092

CHAPTER V. ACQUISITIVE PRESCRIPTION OF IMMOVABLES.

Art. 1474.— For the acquisitive prescription of an immovable there must be possession as owner, and the same must be continuous, uninterrupted, peaceable, public, and for the length of time hereinafter fixed Precarious, violent, or clandestine possession, such as the same is defined in Arts. 196 and 197, cannot be availed of for purposes of prescription.

Art. 1475.— Possession is discontinuous and cannot be availed of for prescription, where the possessor has voluntarily ceased, for a period more or less long, to do in respect of the thing that he was in the way of prescribing such acts of mastership as the thing admitted of. Where such possessor begins afresh the performance of acts of possession, the time of his prior possession does not count in his favor.

Art. 1476.— Where possession, independently of the conditions above required, is based upon a just title, such as is defined in Art. 194, and is in good faith, in conformity with Art 195, the possessor acquires prescription after fifteen years, without any distinction being made on account of the distance of the place where the immovable is situated from the domicile or residence of the person against whom the prescription takes place.

Art. 1477.— A title that is void in form or that has been annulled judicially is useless for purposes of prescription.

Art. 1478.— Where the possessor cannot make good any title, or where, though he should be able to do so, bad faith on his part is proved, as in Art. 199 provided, for the period of acquisitive prescription is thirty years.

Art. 1479.— Prescription, based on a just title that is by its nature subject to transcription, only begins to count from the day on which such title has been transcribed.

Art. 1480.— The adjoining or continuing of possession from the person who has the same to his successors or persons entitled under him, whether under general or special title, is governed by Art. 204.

CHAPTER VI. ACQUISITIVE PRESCRIPTION OF MOVABLES.

Art. 1481.— Any person who under just title and in good faith acquires possession of a corporeal movable object becomes immediately the owner thereof. In this case the possessor is presumed to possess under a just title unless the contrary be proved.

Art. 1482.— Even, however, in the case of the possessor of a movable object who possesses under just title and in good faith, if such object has been previously stolen from its owner or lost by him, the owner can reclaim it from the possessor during the space of one year counting from the loss or theft; but without prejudice to the possessor's right of recourse against the person from whom he holds possession, if he acquired the same onerously. This article docs not apply to objects that have been misappropriated by breach of trust or obtained by swindling; the same are governed by the preceding article.

Art. 1483.— If the thing lost or stolen has been bought in good faith at a sale by auction, in a public market, or from a tradesman dealing in like things or in second hand articles, such right of reclamation can only be exercised by the owner upon his paying the price that it has cost. In such case a right of recourse belongs to the owner for such price against the seller, and to the latter against his transferor and so on back to the thief or finder.

Art. 1484.— Special regulations determine the length of time and the conditions for reclaiming documents of credit that are payable to bearer or transferable by mere delivery of the document of title, in cases in which the same have been lost or stolen.

Art. 1485.— If, in the preceding cases, the possession is proved by the person claiming to be without title or in bad faith, prescription docs not become complete until after the expiration of thirty years.

Art. 1486.— The preceding provisions arc applicable to movables that have been rendered immovable by reason of the purposes to which they are devoted, if the same have been separated from the immovable to which they were attached. They do not apply to incorporeal movables such as nominative rights of claim, rights of literary, artistic, or industrial proprietorship, or to a universality of movables ; with respect to such objects the period of prescription is the same as for immovables, under the distinctions in Arts. 1473 to 1475 made.

CHAPTER VII. LIBERATORY PRESCRIPTION.

Art. 1487.— Liberatory prescription of obligations in general is complete after thirty years of inaction on the part of the creditor, counting from the time when he had the right to move, unless the law fixes some shorter time or dec lares the claim to be imprescriptible.

Art. 1488.— Where the principal of a debt is payable by annual instalments, whether the same include interest or not, prescription is computed separately for each instalment counting from the time it became due.

Art. 1489.— Although the claim may consist of a perpetual or a life annuity the principal of which is not demandable, prescription thereof is complete after thirty years counting from the date of its title. After twenty eight years, however, from such date, the creditor can, in order to interrupt prescription, demand from the debtor a document of title in recognition of his right, which is to be prepared at their joint expense. If the debtor refuses to give the same and the creditor finds himself obliged to obtain judicially the acknowledgment of his rights, all costs are to be borne by the debtor.

Art. 1490.— A personal action for the restitution of a movable or immovable pledge only becomes prescribed from the time of extinction of the debt in some legal manner or by liberatory prescription itself, which is not, however, suspended by the mere fact that the creditor has been in possession of the security as in Art. 1118 mentioned.

CHAPTER VIII. SPECIAL PRESCRIPTION.

Art. 1491.— Rights and rights of action relative to the status of persons arc only prescriptible in those cases in which the law subordinates the exercising of the same to the expiration of a special period of time.

Art. 1492.— The action of petition for heirship, in order to make good the right of a person to be lawful heir or universal legatee or donee, only becomes prescribed by thirty years, counting from the opening of the succession, as against the person who is actually in possession as lawful heir or universal legatee or donee.

Art. 1493.— Liberatory prescription is acquired by the lapse of five years against actions for payment: 1. Of interest, whether compensatory or moratory, on ascertained sums of money; 2. Of annual instalments of perpetual or life annuities; 3. Of annual payments or periodical instalments of alimentary or retired pensions; 4. Of rents of houses or lands; 5. Of annual payments of fruits or commodities; 6. Of fees or salaries of professors, secretaries, clerks, employes, domestic servants, or nurses, when such remuneration is fixed by the year: and generally for all debts of sums of money or of things of value that arc fixed by the year, notwithstanding that payment thereof is to be made at shorter intervals. A debtor docs not lose the benefit of such prescription, even though when relying on it he should admit that he has not paid the sums of money or things of value that the creditor has allowed to accumulate.

Art. 1494.— Prescription is acquired by the lapse of three years against the right of action: 1. Of doctors, surgeons, midwives and apothecaries for their treatment, operations, and medicines; 2. Of professors, employes and other persons mentioned in 6. of the preceding article, when their remuneration is fixed by periods of less than one year, but more then one month ; 3. Of engineers, architects, geometricians, and draftsmen, for their plans, advice, and professional work, even though their services should not be yet concluded ; 4. Of contractors of buildings, embankments, and other works relating to immovables.

Art. 1495.— Prescription is acquired by the lapse of two years against the right of action of notaries, advocates, process-servers, and other persons representing or assisting contracting or litigating parties for what is due to them in respect of their services. In this case prescription only commences to run from the time of the completion of the contract or the termination of the action which has given rise to their claim. Nevertheless, in respect of business that is not yet concluded, they cannot claim reward for work done more than five years previously. The same provisions apply to advances of money and disbursements made by the above mentioned persons in the discharge of their duties.

Art. 1496.— Prescription is acquired by the lapse of one year against the right of action: 1. Of traders and purveyors, whether wholesale or retail, of commodities, clothing, and any other movables whatever, for what they have supplied to persons who arc not traders, or even for what they have supplied to traders or manufacturers when such supplies arc not connected with the trade or manufacture of these latter: 2. Of ordinary or skilled workmen working by the piece on materials or movable objects belonging to their employers, whether traders or manufacturers or not, but subject to the distinctions above made; 3. Of heads of institutions, schoolmasters. and masters of apprentices for their charges for teaching, feeding, maintaining and lodging their pupils or apprentices.

Art. 1497.— Prescription is acquired by six months against the right of action : 1. Of professors, employes, domestic servants, and the other persons designated in Art. 1493 6 and 1494 ; 2, where their remuneration is fixed by the month or some shorter period; 2. Of hotel, inn, and restaurant proprietors for the lodging, food, anti drink supplied by them ; 3. Of workmen, farm laborers, and coolies, engaged by the day, fortnight, or month, for their wages and for the petty materials supplied by them in doing their work.

Art. 1498.— The prescription of payment resulting from inaction on the part of the creditor during the period of time that is fixed for prescription in the four preceding articles cannot be set up by a debtor, who voluntarily, or when examined judicially, admits that he has not as a fact paid. In the case of the heir, the widow, or any other person entitled by general title under the debtor, relying on prescription in the name of the debtor in any such case as above, he or she can be called upon to affirm that he or she in good faith believes that there is nothing due to the claimant in respect of his claim by the person through whom his or her title is derived.

Art. 1499.— Notaries, court clerks, advocates, and process-servers are released after three years from their responsibility for documents which have been handed them in the discharge of their duties, and are exempt from producing proof of the return thereof. They can, however, be compelled to have a search made within one month in their archives or files, upon being paid in advance such search fee as is fixed by the Regulations.

Art. 1500.— The prescriptions legislated for in this chapter are no longer applicable where there has been between the parties a stated and settled account, an acknowledgment of the debt at an amount named, or a judgment against the debtor.

TRANSITORY PROVISION.

Art. 1501.— Prescriptions that are running at the time of the promulgation of this Code shall be subject to the rules above laid down. Nevertheless, in so far as their duration is concerned, if the prescription previously existing required a longer time than the new one, the debtor or the possessor shall continue entitled to the benefit of the former, where the time which still remains to run is less long than would be that of the now prescription counting from the promulgation of this Code. With respect to prior prescriptions having a shorter duration than the new, the time is to be extended, so as to attain to a length equal to that fixed by this Code.