7 Law Japan 1 (1974)
The Legal Consciousness of Contract in Japan

handle is hein.journals/lij7 and id is 7 raw text is: 1974]
Waga kuni ni okeru keiyaku no hd-ishiki
Takeyoshi Kawashima
Translated by Charles R. Stevens
From Nihonjin no Ho Ishiki (The
legal consciousness of the Japanese)
Chapter IV (1967)
First let us explain the meaning of the legal word contract (keiyaku).
A contract expresses an agreement between two or more persons with
respect to the rights and duties between them (needless to say, the meaning
of contract as used in daily life is broader than this). On the basis of the
institution of private property, mutual rights and duties are generally created
or extinguished only in cases where individuals who are parties to a relation-
ship agree of their own free will since the fundamental premise is that all
persons are mutually independent and equal. Since capitalistic society in par-
ticular has become possible primarily as a result of the exchange and flow of
goods, contracts are vital and indispensable elements to its dynamics.
There are many problems regarding legal consciousness of contracts. Con-
tracts are the main source of almost all legal rights and duties in today's
society, and as a consequence they have numerous and varied aspects. How-
ever, since it is impossible to cover all of these aspects here, we will make no
mention of contracts in family law or the law of inheritance; we will only take
up contracts in the law of property. Moreover, I think that we must try to
achieve a focus and delimit the problem. This being the case, the problem to
be dealt with is as follows:
One of the important requirements of modern law is that the rights and
duties between individuals be clarified and made specific, and this is especially
true in the area of contracts that are a means for today's capitalistic business
activities. That is to say, it is necessary for capitalistic enterprises to form pre-
dictable property relationships arising out of business activities, to make fore-
casts, and to make rational calculations; for these reasons predictability is
necessary in regard to the rights and duties arising out of contracts which are
tools in their business activities.
Note. Mr. Kawashima is Professor of Law Emeritus, University of Tokyo. B. Jur., 1932,
Tokyo Imperial University; Dr. Jur., 1959, University of Tokyo.
Mr. Stevens is a former editor of Law in Japan, a member of the firm of Coudert
Brothers in New York and Lecturer-in-Law at Columbia University. A.B., 1963, Prince-
ton University; LL.B., 1966, Harvard University.

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