In certain cases a person who performs on behalf of a debtor is subrogated to the right of the creditor, that is, he takes the place of the creditor vis-à-vis the debtor. The Japanese Code provides that the consent of the creditor at the time of performance is essential to subrogation, and also that a person who has a rightful interest in the performance of an obligation is subrogated by operation of law (Articles 499, 500). One of the debtors of an indivisible or a joint obligation, or the purchaser of an object which has been pledged or mortgaged, etc., would come under this provision. The French Code separates subrogation into legal and conventional, and in respect of the latter, it provides that subrogation may take place by the consent of the debtor. This hardly seems just, for by subrogation, the person performing on behalf of the debtor steps into the position of the creditor and exercises whatever rights the creditor might have had against the debtor. It would, therefore, appear to be more reasonable to require that the creditor’s rather than the debtor’s consent should be obtained.
Set-off. — Where parties have incurred toward each other obligations of the same kind, set-off has in various systems of jurisprudence been recognized as a proper means of discharging the reciprocal obligations. In some countries set-off can only be pleaded in defense to an action. In others the discharge of an obligation is effected by operation of law when the conditions necessary to the set-off are fulfilled even without the knowledge of the parties. The French Code has adopted this latter principle (Article 1290). The Japanese Code provides that a set-off takes place by means of an expression of intention made by one party to the other (Article 506). Set-off is a right given to a person, under certain circumstances, as a mode of discharging his obligation. As it is a right, it does not require the consent of the other party. But to provide, as does the French law, that it takes place merely by operation of law even without the knowledge of the parties, would be an undue interference with the private affairs of individuals; while to say, that it can only be pleaded in defense, unnecessarily limits the usefulness of this simple method of discharging an obligation. The Japanese Code pays due deference to the will of the parties by making set-off dependent upon an expression of intention, not confining it to a plea in defense to an action. This is in harmony with the latest legislative precedents as shown by the Saxon and Swiss Codes.
Contracts. — In the French law the term “Contract” is only applied to an agreement by which rights in personam are created. Agreements by which rights in personam are transferred, altered
