For those of us interested in the contract laws of Asian jurisdictions (see Studies in the Contract Laws of Asia (Oxford University Press)), the publication of this highly readable, comprehensive, and concise textbook on Contract Law in Japan in the English language is a cause for celebration. It is co-authored by four academics: two Japanese scholars with knowledge of common law systems, and two common law scholars and experts in Japanese law. This is an effective collaboration that lawyers from both common and civil legal traditions will find highly accessible.
Contract law lies at the centre of concentric legal fields that regulate daily commercial transactions. The emergence and rise of Asian markets make ignorance about East Asian private law increasingly untenable. Japanese contract law is the best starting point, being the most influential model in East Asian jurisdictions and some Southeast Asian jurisdictions. That said, the study of Japanese contract law poses some obstacles for the common lawyer and other lawyers from outside Japan. The immediate reason is accessibility. Japanese is not an international language, and Japanese legal terms are highly abstract and can be difficult to grasp for outsiders. Moreover, while the Japanese Civil Code was promulgated in 1896 and enforced in 1898, mainly by transplanting the Pandectist style of the German BGB, it deviates from this source in many aspects. It combines elements from French law, English case law, and, most importantly, local rules that are reflective of the domestic culture. These diverse elements, overlaid with the local interpretation of the Code's provisions, combine to produce a uniquely blended civil code. This book penetrates these layers of difficulties and provides an excellent introduction to Japanese contract law We highlight some of the book's key contributions.
Japanese contract law must be seen in the context of Japanese private law. This is crucial in understanding a Pandectist civil law system where the rules of all areas of private law are closely interconnected. The book signposts these and other aspects by providing a succinct General Introduction to the Japanese legal system, including: (i) its historical and cultural context; (ii) the position of the judiciary; (iii) the distinction between civil law, commercial law and consumer law; (iv) the definition and classification of contracts; (v) the relationship of contract law to other fields of private law, such as torts, restitution, property and trusts; and (vi) the significance of good faith and other general principles.
Japan uses a code (or statute) based system, but its drafting style is significantly different from statutes found in common law systems. The Pandectist civil code was developed in a highly deductive way and yielded many provisions that are highly abstract (especially those in the General Part of the Civil Code and the General Part of each Book). Part I of this book explains the meaning of provisions which may otherwise bewilder common lawyers. One example is that the following provisions apply not only in the contractual context, but also to personal rights arising from torts, unjust enrichment and negotiorum gestio: the assignment of claims (106), the creditor's subrogation rights (115), the creditor's right to rescind for the debtor's fraudulent acts (120), the discharge of obligation by performance (130) and the liability for damages (152) Therefore, they are prescribed, not in the section on contracts, but in the General Part of the Law of Obligations. Another example is that the provisions dealing with capacity (71) are found in the General Part of the Civil Code rather than in the section on contract law since they apply not only to contractual parties, but also, inter alia, to those making wills, and grant proprietary interests. With both examples, the authors have extracted the relevant provisions and presented them in the contractual context. In addition, this book draws attention to various special statutes that deal with particular types of contracts, which supplement the Code (eg Consumer Contracts Acts; for more examples, see at 49). This book also offers a brief outline of the drafting style (48–9) of Japanese law, to assist foreign lawyers in understanding how to find the rules or provisions they need.
The traditional systematic configuration in the civil code does not expound the story of contract law from its beginning to end in a separate Book. Instead, it is dissected into many pieces and distributed across the Civil Code (namely, in Book I: General Principles of Civil Law, and in Book III: General Part of the Law of Obligations, and Specific Part of the Law of Obligations etc). Such a traditional configuration may confound readers from other legal traditions and make them apprehensive about exploring Japanese contract law. This book reconfigures the Civil Code in a highly accessible order. Accordingly, Part I of this book on General Principles contains the following chapters: 1. Formation, 2. Conditions for Substantive Validity, 3. The Contents of a Contract, 4. Privity of Contract, 5. Termination of the Contract and 6. Remedies for Breach. This feature, coupled with the succinct and clear translation of legal terms, makes this book a standout. It will be the go-to textbook on Japanese contract law in the international market.
Part II of this book introduces an approach that is axiomatic of the civil law: specific rules dealing with some ‘typical contracts’, which are provided for in Book III on The Special Part of Obligations in the Civil Code. These rules comprise the mandatory rules and the default contractual terms that fill the gaps in typical contracts should the parties’ intentions be ambiguous. This partly explains why contractual documents in civil law jurisdictions are generally much shorter than those in common law jurisdictions. For, while the latter seeks to regulate every aspect of a contract, parties in civil law countries consciously leave some issues for regulation by the civil code or other relevant statutes. Accordingly, there are chapters: 1. Agency, 2. Deposit, 3. Aleatory Contracts, 4. Sale of Goods, 5. Building Contracts, Hire of Work and Skills, 6. Leases, 7. Compromise, 8. Guarantee Contract, 9. Pledge, 10. Loans, 11. Government Contracts, 12. Partnership Contract and 13. Quasi-contracts (see below for comment on some of these categories). Notably, a gift based on an agreement is a contract under Japanese law, but it is discussed in Part I of book to highlight the lack of a requirement for consideration. This book appears to be the only volume available on the market that covers, albeit briefly, all the typical contracts prescribed in the Japanese civil code. This offers readers a valuable overview of how the default or mandatory rules for each typical contract is conceived in Japan.
A difficulty faced by foreign comparative lawyers when studying Japanese contract law is in finding reliable, authoritative and trustworthy secondary materials (articles and books), and cases that expound and apply the statutory material. This book introduces readers to some of the most important scholarship on Japanese contract law in the text and the footnotes. Moreover, a ‘Selected Bibliography’ is provided, which divides into: ‘General Overview of Contract Law in Japan’, ‘Books and Theses’ and ‘Articles and Chapters’. This is a valuable guide to many online and offline resources for the scholars and practitioners searching for more information.
Three substantive points should be considered for future editions. Under Japanese law, (i) while mandate is a type of contract, agency is not classified as a type of contract; (ii) pledge is described as a type of proprietary right rather than a contractual right; and (ii) negotiorum gestio and unjust enrichment are dealt with under the heading of ‘obligations by operation of law’, and this is preferable to ‘quasi-contract’ used by this book since the idea of ‘quasi-contract’ is itself controversial and is not mentioned in the Civil Code. On the issue of extent, the authors may wish to consider the trade-off between size and introducing their readership to the basis of their conclusions.
This text on Japanese contract law in the English language could not be more timely. The Japanese Civil Code went through a major reform in 2017, some 120 years after its original promulgation, and came into force in 2020. The recent reform touches almost every area of contract law, from formation to remedies. Most of the major changes are skilfully incorporated into this little book, which also cites key recent judicial decisions that are crucial to an understanding of the evolution of modern Japanese contract law and which are otherwise very difficult to access in English. This book is an excellent and reliable entry point to what may otherwise be an elusive subject.
