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2015 (Ju) 659

2017.02.21
2015 (Ju) 659
Minshu Vol. 71, No.2
Judgment on a case where, in the context of the intermediation of an individual credit purchase, when a credit agreement was concluded between the intermediary and the purchaser with the purchaser’s consent to be a nominal purchaser, the contents of the statements made by the seller to the purchaser were considered by the Court to constitute “important particulars … which may affect the judgment of the purchaser” as referred to Article 35-3-13, paragraph (1), item (vi) of the Installment Sales Act
Case of a principal action claiming credit payments and of a counterclaim claiming restitution of unjust enrichment
Judgment of the Third Petty bench, quashed and remanded
Sapporo High Court, Judgment of December 18, 2014
Where, in the context of the intermediation of an individual credit purchase, when a credit agreement was concluded at the request of the seller between the intermediary and the purchaser with the purchaser’s consent to be a nominal purchaser, and where the circumstances found by the Court existed, such as that the seller, at the time when the aforementioned request was made, stated to the purchaser that there was an aged person or the like who needs someone who would be a nominal purchaser for him/her, that a sales contract had been concluded with, and relevant merchandise had been delivered to, such aged person or the like, and that even if such aged person or the like failed to make payment, the seller had the intention and ability to reliably pay the amounts payable by the purchaser to the intermediary, the contents of such statements constitute “important particulars … which may affect the judgment of the purchaser” as referred to Article 35-3-13, paragraph (1), item (vi) of the Installment Sales Act.

(There is a dissenting opinion.)
Article 35-3-13, paragraph (1), item (vi) of the Installment Sales Act



Installment Sales Act

Article 35-3-13 (1) If the Seller Affiliated with the Intermediation of an Individual Credit Purchase or the Service Provider Affiliated with the Intermediation of an Individual Credit Purchase conveys false information with regard to one of the following facts while the purchaser or service recipient is being solicited to conclude a Contract Stipulating the Receipt of Monies Subject to the Intermediation of an Individual Credit Purchase in connection with a Contract for a Sale Involving the Intermediation of an Individual Credit Purchase or a Contract for Services Involving the Intermediation of an Individual Credit Purchase arising from Door-to-Door Sales, or while the purchaser or service recipient is being solicited to conclude a Contract Stipulating the Receipt of Monies Subject to the Intermediation of an Individual Credit Purchase in connection with a Contract for a Sale Involving the Intermediation of an Individual Credit Purchase or a Contract for Services Involving the Intermediation of an Individual Credit Purchase arising from Telemarketing Sales, thereby leading the purchaser or service recipient to mistakenly believe that the false information conveyed is true; or if the seller or Service Provider willfully fails to disclose a fact connected with a particular set forth in one of items (i) to (v) inclusive while the purchaser or service recipient is being solicited to conclude such a contract, thereby leading the purchaser or service recipient to mistakenly believe that fact not to exist; and if it is with such a mistaken belief that the purchaser or service recipient manifests the intention to offer such a contract or to accept an offer for such a contract, the purchaser or service recipient may disaffirm the intention so manifested:

(vi) important particulars relevant to the Contract Stipulating the Receipt of Monies Subject to the Intermediation of the Individual Credit Purchase, the Contract for the Sale Involving the Intermediation of the Individual Credit Purchase, or the Contract for Services Involving the Intermediation of the Individual Credit Purchase which may affect the judgment of the purchaser or service recipient, other than what is set forth in the preceding items.
The judgment of prior instance is quashed.

This case is remanded to the Sapporo High Court.
Regarding I and III of the reasons for the petition for acceptance of final appeal filed by the counsel for the appeal, KON Masahiro



1. The appellants concluded credit agreements with the appellee, which is a credit company, for the payment of purchase prices by reason that the appellants concluded purchase contracts of jewelry goods and the like with Limited Company A (hereinafter referred to as the “Seller”), which was a merchant of the appellee. However, such purchase contracts were fictitious and the aforementioned credit agreements were concluded at the request of the Seller and with the consent of the appellants to become nominal purchasers (hereinafter becoming a nominal purchaser as described above is referred to as “Name Lending”).

In the principal action of this case, the appellee claims, among others, payment of outstanding balances from the appellants under the aforementioned credit agreements. In the counterclaim of this case, Appellant Y2 claims, among others, a refund from the appellee of monies already paid by Appellant Y2 to the appellee under the aforementioned credit agreements, based on Appellant Y2’s right to demand restitution of unjust enrichment on the grounds that Appellant Y2 rescinded the manifestation of her intention to offer such credit agreement under Article 35-3-13, paragraph (1) of the Installment Sales Act. The counterclaim of this case was filed in the court of prior instance and subsequently the principal action against Appellant Y2 was withdrawn.

The point at issue with the aforementioned credit agreements is: with respect to those concluded on or after December 1, 2009 (hereinafter referred to as the “Post-Revision Agreements”), which is the date of enforcement of Act No. 74 of 2008 (hereinafter referred to as the “Revision Act”), whether or not the appellants may rescind the manifestation of their intention to offer the credit agreements under Article 35-3-13, paragraph (1) of the Installment Sales Act; and with respect to those concluded before the aforementioned date (hereinafter referred to as the “Pre-Revision Agreements”), whether or not it is against the principle of good faith to assert against the appellee such defenses as the nullity of the purchase contracts that arose against the Seller under Article 30-4, paragraph (1) of the Installment Sales Act before the revision by the Revision Act.

2. The outline of facts related to the case which became final and binding in the judgment of prior instance is as described below:

(1) The appellee is an entity engaged in the business of Intermediation of Individual Credit Purchases as defined in Article 2, paragraph (4) of the Installment Sales Act (or, before the aforementioned revision of the said act, Intermediation of Installment Purchases as defined in Article 2, paragraph (3), item (ii) of the Installment Sales Act before such revision) (hereinafter referred to as the “Intermediary”). In April 2004, the appellee concluded an installment purchase intermediation merchant agreement with the Seller, which was engaged in the business of, among others, wholesale and retail of kimono fabrics and jewelry.

(2) Since around 2002, the Seller had many times requested Name Lending from its existing customers in order to raise its working capital, had had customers who accepted such requests concluded credit agreements for the payment of purchase prices payable under fictitious purchase contracts, had received payment of amounts equivalent to such prices from the appellee and other credit companies, and had paid the amounts payable by such customers to the credit companies.

(3) At the earnest request of the Seller, the appellants agreed to the Name Lending. During the period from November 2008 to November 2011, the appellants concluded with the appellee, on the dates listed in the “dated” column of the List of Details of Credit Agreements shown in Exhibit 2 to the judgment of first instance, credit agreements (hereinafter referred to as the “Credit Agreements”) for the payment of purchase prices payable under fictitious purchase contracts concluded between the appellants and the Seller (hereinafter referred to as the “Purchase Contracts”). Under the Credit Agreements, the appellee was to pay to the Seller on behalf of the appellants the respective amounts listed in the “agreement amount” column of the list and the appellants were to pay to the appellee, by the respective methods listed in the “payment method” column of the list, the amounts so paid by the appellee on behalf of the appellants. On the dates listed in the “payment date” column of the list, the appellee paid to the Seller the respective amounts listed in the “agreement amount” column of the list. The Purchase Contracts constituted contracts involving Door-to-Door Sales as defined in Article 2, paragraph (1) of the Act on Specified Commercial Transactions.

When soliciting the appellants to conclude the Credit Agreements, the Seller informed the appellants, among other things, that these agreements were being concluded to help aged persons and the like who were not able to take out loans, that sales contracts with, and delivery of merchandise to, such aged persons and the like actually existed, and that the Seller would responsibly make payments without possibly causing trouble to the appellants.

(4) The appellants’ payment to the appellee under the Credit Agreements was made by means of account transfer from the accounts held under the name of the appellants. Up to the payment for October 2011, the Seller transferred to the said accounts the amounts equivalent to the payments made by the appellants.

(5) On November 28, 2011, the Seller suspended its business. On April 3, 2012, the Seller filed a petition for commencement of bankruptcy proceedings. Subsequently, a decision was made to commence bankruptcy proceedings with respect to the Seller.

(6) During the period from March 2012 to January 2013, the appellants involved in the Post-Revision Agreements manifested to the appellee their intention to rescind the manifestation of their intention to offer their respective Post-Revision Agreements under Article 35-3-13, paragraph (1) of the Installment Sales Act.

(7) The appellants involved in the Pre-Revision Agreements have alleged that these appellants assert against the appellee, under Article 30-4, paragraph (1) of the Installment Sales Act before the revision by the Revision Act, such defenses as the nullity of the purchase contracts associated with the Pre-Revision Agreements, on such grounds as that such purchase contracts are void pursuant to the proviso to Article 93 or Article 94, paragraph (1) of the Civil Code.

In response, the appellee has alleged that it is against the principle of good faith and is not permitted for the appellants involved in the Pre-Revision Agreements to assert against the appellee such defenses as the aforementioned nullity.

3. Based on the facts related to the case described above, the court of prior instance ruled that the purchase contracts associated with the Pre-Revision Agreements were void pursuant to the proviso to Article 93 or Article 94, paragraph (1) of the Civil Code, and accepted the appellee’s claim in the principal action while dismissing Appellant Y2’s claim made in the counterclaim by ruling as follows:

(1) (a) The particulars as referred to in Article 35-3-13, paragraph (1), item (vi) of the Installment Sales Act include not only the contract details and transaction terms but also the motives for concluding the contract, as long as such motives constitute important particulars relevant to the credit agreement or the purchase contract which may affect the judgment of the purchaser.

(b) The key motive for which the appellants involved in the Post-Revision Agreements concluded these agreements was the Seller’s promise that the Seller would compensate these appellants for the amounts paid by them to the appellee. The Court cannot find that the Seller made such a promise to the appellants involved in the Post-Revision Agreements despite the Seller’s total lack of intention, at the time of conclusion of the Post-Revision Agreements, to pay such amounts paid by these appellants to the appellee. Therefore, the Seller’s statements were not false and the Seller cannot be considered to have “convey[ed] false information” as referred to in Article 35-3-13, paragraph (1) of the Installment Sales Act (hereinafter referred to as “Misstatements”). While the Seller, when mediating the Post-Revision Agreements, stated to the appellants involved in the Post-Revision Agreements that these agreements were being concluded to help aged persons and the like who were not able to take out loans, and that sales contracts with, and delivery of merchandise to, such aged persons and the like actually existed, the contents of these statements do not constitute important particulars which may affect the judgment of the purchaser and with regard to which Misstatements could be made.

(2) The appellants involved in the Pre-Revision Agreements had replied, in response to a telephone inquiry from the appellee, that they were willing to conclude the respective agreements and that they had received the relevant merchandise, which means that the Pre-Revision Agreements were concluded based on the purchasers’ act of disloyalty. In addition, as described in (1)(b) above, cancellation on the grounds of Misstatements is denied similarly to the Post-Revision Agreements. Furthermore, even assuming that the appellants involved in the Pre-Revision Agreements were unaware of the fact that the Seller was intending to obtain unjust gains, these appellants were aware or could have been aware, at the time of conclusion of the Pre-Revision Agreements, that they were engaging in Name Lending and that it was an unfair deal in light of general knowledge. It is then against the principle of good faith and is not permitted for the appellants involved in the Pre-Revision Agreements to assert against the appellee the nullity of the purchase contracts associated with the Pre-Revision Agreements.

4. However, while the ruling by the court of prior instance described in 3. (1)(a) above is acceptable, the ruling described in 3. (1)(b) above and the resulting ruling described in 3. (2) above are unacceptable, for the following reasons.

Article 35-3-13, paragraph (1), item (vi) of the Installment Sales Act, which was newly introduced by the Revision Act, is understood as: focusing on the fact that there is a close relationship between the Intermediary and the seller, which is a merchant of the Intermediary, as seen in such facts as that the Intermediary causes the seller to act as an intermediary such as by soliciting purchasers to conclude credit agreements and by passing on written applications between the Intermediary and purchasers; and intending to thoroughly ensure the protection of purchasers since door-to-door sales particularly tend to entail defects in the manifestation of purchasers’ intention to conclude contracts because of potential improper solicitations by the seller; and, with such focus and intention, and as an exception to Articles 4 and 5 of the Consumer Contract Act made for the Intermediation of an Individual Credit Purchase in association with which a purchase contract is concluded as a result of door-to-door sales, newly permitting the purchaser to rescind the manifestation of his/her intention to offer a credit agreement with the Intermediary if the seller, while soliciting the purchaser to conclude the credit agreement, made Misstatements with regard to important particulars relevant to the credit agreement or the purchase contract which may affect the judgment of the purchaser, including particulars relevant to the motives for concluding the agreement or contract, whether or not the Intermediary was aware or could have been aware of such Misstatements. Even if the credit agreement is concluded by such unfair means as Name Lending with the purchaser’s consent, if it is concluded at the request of the seller and if, while making such request, the seller makes Misstatements with regard to important particulars about the motives for concluding the agreement, such as the circumstances under which the agreement needs to be concluded, whether or not there are risks to be substantively taken by the purchaser by concluding the agreement, and whether or not there is a possibility of the Intermediary incurring actual damage as a result of the conclusion of the agreement, then the purchaser may be led to mistaken beliefs and this may result in the conclusion of the credit agreement. If a credit agreement is concluded after such a course of events, the purchaser can be deemed to have been exploited by the seller and cannot be considered unworthy of being protected as a purchaser. Therefore, permitting the purchaser to rescind the manifestation of his/her intention to offer the credit agreement on the grounds of Misstatements with regard to particulars listed in Article 35-3-13, paragraph (1), item (vi) of the Installment Sales Act cannot be considered to be against the intention of the said item.

According to the facts related to the case described above, the Seller, when soliciting the appellants involved in the Post-Revision Agreements to conclude these agreements, stated to these appellants that these agreements were being concluded to help aged persons and the like who were not able to take out loans, that sales contracts with, and delivery of merchandise to, such aged persons and the like actually existed, and that the Seller would responsibly make payments without possibly causing trouble to the appellants. The contents of these statements can be deemed to constitute particulars with regard to the circumstances under which the agreements need to be concluded, whether or not there are risks to be substantively taken by the purchasers by concluding the agreement, and whether or not there is a possibility of the Intermediary incurring actual damage as a result of the conclusion of the agreements, such as that there are aged persons and the like who need Name Lending, that there are purchase contracts under which such aged persons and the like are the purchaser and that relevant merchandise has been delivered to such aged persons and the like, and that the Seller has the intention and ability to reliably pay the amounts paid to the appellee by the appellants involved in the Post-Revision Agreements even if such aged persons and the like fail to make payments. Therefore, the contents of the statements described above should be regarded as constituting important particulars with regard to the motives for concluding the agreements.

For the above reasons, the contents of the above statements made by the Seller to the appellants involved in the Post-Revision Agreements should be regarded as constituting “important particulars … which may affect the judgment of the purchaser” as referred to in Article 35-3-13, paragraph (1), item (vi) of the Installment Sales Act.

5. The ruling by the court of prior instance described in 3. (1)(b) above and the resulting ruling described in 3. (2) above are inconsistent with the above ruling of the Court and contain violations of law that obviously affect the judgment of prior instance. The gist of the argument of the petition for appeal is well-grounded, and therefore the judgment of prior instance should inevitably be quashed. We now remand this case to the court of prior instance in order to have it further and fully hear the case as to whether or not it is still against the principle of good faith to assert against the appellee the nullity of the purchase contracts associated with the Pre-Revision Agreements after taking into account: whether or not the appellants involved in the Post-Revision Agreements had mistaken beliefs about the contents of the above statements made by the Seller; and the motives for, and the circumstances under, which the appellants involved in the Pre-Revision Agreements agreed to the Name Lending.

Accordingly, the Court unanimously decides as set forth in the main text, except that there is a dissenting opinion of one of the justices, YAMASAKI Toshimitsu.

The dissenting opinion of the justice, YAMASAKI Toshimitsu, is as follows:

The majority opinion concludes that the judgment of prior instance should be quashed and this case remanded to the court of prior instance on the grounds that the contents of the statements made by the Seller to the appellants involved in the Post-Revision Agreements constitute important particulars as referred to in Article 35-3-13, paragraph (1), item (vi) of the Installment Sales Act, based upon the premise that even if the credit agreements were concluded by such unfair means as Name Lending, there are cases where the name lenders are permitted to cancel the agreements on the grounds of Misstatements. However, I cannot agree with the idea on which the majority opinion is based, for the following reasons.

1. So-called Name Lending, which is at issue in this case, is a mechanism where the customer, at the request of the seller which has a merchant contract with the Intermediary, pretends for the sake of formality that a merchandise purchase contract has been concluded with the seller, followed by the conclusion of a credit agreement with the Intermediary for the payment of the purchase price under the purchase contract in order to enable the seller to receive advance money paid from the Intermediary. As such, Name Lending should be regarded as an unfair deal that takes advantage of the special contractual relationship between the three parties in the Intermediation of an Individual Credit Purchase (or the Intermediation of an Installment Purchase before the revision by the Revision Act). The person who engages in Name Lending is aware that the merchandise purchase contract with the seller is fictitious and that, naturally, no merchandise has been received by the person, while the same person concludes a credit agreement with the Intermediary for the payment of the purchase price of such merchandise whereby the person agrees to assume the obligation to pay installments. From the perspective of consumer protection, the Installment Sales Act permits a person who has actually purchased merchandise as a result of the seller’s illegal, improper acts to rescind the manifestation of his/her intention on the grounds of the seller’s Misstatements and to reject the Intermediary’s claim for payment by asserting against the Intermediary defenses that the person can assert against the seller, subject to certain requirements by taking into consideration the close relationship between the Intermediary and the seller. In the case of Name Lending, however, the situation is significantly different from that in which the said act intends to provide protection, in that the merchandise purchase contract is fictitious in the first place, and that the name lender is aware of this. It is difficult to consider it reasonable to provide protection under the said act in such a situation as if it were the same situation as contemplated by the act. In the following, I will elaborate on my opinion.

2. Based on the actual situation where consumers are frequently caught up in fraudulent schemes which exploit credit agreements and many of which involve door-to-door sales and some other specific forms of sales activities, the Revision Act introduced the capacity for purchasers to rescind the manifestation of their intention on the grounds of Misstatements by the seller (Article 35-3-13, paragraph (1) of the Installment Sales Act), for the purpose of eliminating inappropriate credit provision that encourages such fraudulent solicitation and sales activities. Specifically, if the seller has made Misstatements or has engaged in other illegal, improper acts when soliciting a purchaser to conclude a purchase contract and even if the purchaser is allowed to cancel the purchase contract, the credit agreement will continue since it is a legally separate agreement from the purchase contract, and the purchaser will be denied of a refund of payments already made even if he/she can refuse to pay outstanding balances by asserting against the Intermediary defenses that he/she can assert against the seller with respect to the purchase contract. It is understood that since these consequences are unreasonable and are unfair to the purchaser, the purchaser’s capacity described above was introduced in order to remedy the consequences and to enable the purchaser to get a refund of payments already made. Based on this understanding, extending the protection by the aforementioned capacity to name lenders in Name Lending cases such as this one, in which cancellation of the purchase contract is not an issue in the first place, is not consistent with the legislative intention described above. In addition, the course of enactment of the Revision Act indicates no clear view that name lenders should be protected by the aforementioned capacity and no evidence that the applicability of the aforementioned provisions was discussed by taking into Name Lending cases into consideration. If we turn our eyes to the requirements for application, while the aforementioned provisions limit the scope of application to door-to-door sales and some other specific forms of sales activities, it is meaningless in the first place to discuss whether or not a fictitious merchandise purchase contract concluded by Name Lending resulted from such forms of activities. In addition, while the aforementioned provisions question one-sided, improper acts engaged in by the seller when soliciting a purchaser to conclude a purchase contract or the like, the name lender in a Name Lending case accepts or, is at least aware, that the purchase contract is fictitious, which poses a question with respect to the prerequisites for application of the provisions. From the aspect of effects, a Name Lending case such as this one is based on the assumption that the seller or a third party will pay installments, and if such payment falls into arrears and the name lender receives a claim for payment, the name lender’s refusal to pay outstanding balances could become an issue but it is generally unlikely that the name lender needs to go so far as claiming a refund of payments already made. There is thus little necessity to ensure the protection of the name lender by applying the aforementioned capacity which was introduced for the purpose of enabling a refund of payments already made. In the present case where the seller stated to the name lenders that, among others, the contracts were being concluded to help aged persons and the like who were not able to take out loans, and that sales contracts with, and delivery of merchandise to, such aged persons and the like actually existed, the question is whether or not the contents of the statements made by the seller constitute particulars with respect to which Misstatements could be made. However, lending one’s name for the sake of a person who is not capable of concluding a credit agreement in such person’s own capacity is obviously a fraudulent act in terms of the name lender’s relationship with the Intermediary. No matter how little knowledge in law the name lender may have and even if he/she is earnestly requested by the seller to lend his/her name in order to help an aged person or the like, the name lender must have been able to understand from general knowledge that lending his/her name is a fraudulent act. Regardless of whether or not the contents of the above statements made by the seller were true and whether or not the name lender had mistaken beliefs in this regard, the fact that the Name Lending is an unfair deal remains the same. It is therefore not appropriate to release the name lender from his/her liability under the credit agreement on the grounds that the contents of the above statements were false and that the name lender had mistaken beliefs in this regard. It must be admitted that a Name Lending case such as this one does not meet the requirements for applying the aforementioned provisions, and we should not allow the name lender to rescind the manifestation of his/her intention to conclude the credit agreement on the grounds of Misstatements.

3. Even if a merchandise purchase contract concluded as a result of the seller’s illegal, improper acts is nullified or cancelled, the purchaser’s obligation to pay installments under a credit agreement, which is legally separate from the purchase contract, does not automatically terminate. It is therefore understood that allowing the purchaser to assert against the Intermediary defenses that the purchaser can assert against the seller (Article 30-4, paragraph (1) of the Installment Sales Act before the revision by the Revision Act) intends, from the viewpoint of consumer protection, to enable the purchaser to refuse payment of installments required under the credit agreement on the grounds that can be raised by the purchaser against the seller with respect to the purchase contract. Then, in a Name Lending case such as this one where the purchase contract is fictitious in the first place and where the name lender concludes a credit agreement at least knowing this, it is difficult to consider that allowing the name lender to assert against the Intermediary defenses that the name lender can assert against the seller is in line with the legislative intention described above. Even assuming that the fictitious merchandise purchase agreement is voidable on such grounds as false representations, it is not appropriate to allow the purchaser to uniformly reject the Intermediary’s claim for payment on such grounds. Indeed, there potentially are various circumstances that lead to, and various reasons for, the conclusion of a credit agreement by Name Lending. There is room to interpret that the name lender is allowed to reject the Intermediary’s claim for payment if exceptional circumstances are considered to exist that preclude, under the principle of good faith, the Intermediary from claiming payment from the name lender in light of, among others, the relationship between the Intermediary and the seller, whether or not the Intermediary was aware of, and the level of its awareness of, the seller’s illegal, improper acts, how the Intermediary checked the name lender’s intention to offer the credit agreement, and the circumstances leading to the name lender’s agreement to Name Lending. However, there are no such exceptional circumstances in this case.

4. There could be Name Lending cases where malicious sellers, intending to raise funds by abusing credit agreements, forces customers to execute credit agreements based on fictitious purchase contracts by telling lies or making persistent requests to customers. In such cases, name lenders can be regarded as victims in a sense, and it goes without saying that this type of Name Lending must be prevented by getting rid of malicious sellers. To this end, it would be necessary, above all, to conduct adequate campaigns to raise the general public’s awareness of the fact that Name Lending is a prohibited act that constitutes participation in an unfair deal, and that a name lender is in a position to be ultimately forced to make payment. In addition, considering that the Intermediary and the seller conclude a merchant contract whereby they have a continuous business relationship with each other, imposing on the Intermediary a responsibility to manage and supervise the seller as a merchant to ensure that it will not engage in unfair deals would be another effective and appropriate action. It is from this intention that Article 35-3-5 of the Installment Sales Act imposes on the Intermediary an obligation to investigate for illegal solicitation activities prior to concluding a credit agreement if the Intermediary intends to conclude such an agreement in association with a sales contract involving door-to-door sales or other specific forms of sales activities. It is understandable that the investigation items include whether or not the purchaser had mistaken beliefs as a result of Misstatements or the like (Article 75, item (ii)(a) and Article 76, paragraph (11) of the Ordinance for Enforcement of the Installment Sales Act). However, even if the Intermediary is supposed to fulfill certain responsibilities in preventing, through such extensive investigation, malicious sellers’ illegal, improper acts and unfair deals, the relationship between an Intermediary and a seller and that between a seller and a name lender vary, and it is not appropriate to automatically regard the position of an Intermediary and that of a seller as identical or united into one when discussing a name lender’s liability under the credit agreement in a Name Lending case. In this regard, I am of the opinion that when making a judgment as to whether or not the Intermediary’s claim for payment from the name lender is against the principle of good faith as described above, examination should be conducted as to whether or not the Intermediary has anything to be blamed for in the conclusion of the credit agreement by Name Lending, such as that the Intermediary was aware of the seller’s misconduct but dared to conclude the credit agreement, or that the Intermediary overlooked the seller’s misconduct due to a failure to conduct required investigation, or that the Intermediary desultorily left the seller’s misconduct even though the Intermediary perceived signs of such misconduct.

5. In my personal opinion described above, the conclusion of the court of prior instance that accepted the appellee’s claim in the principal action and dismissed Appellant Y2’s claim made in the counterclaim on the grounds that, in this case, the appellants involved in the Post-Revision Agreements cannot cancel these agreements by reason of the Sellers’ Misstatements, and that it is against the principle of good faith and is not permitted for the appellants involved in the Pre-Revision Agreements to assert against the appellee the nullity of the purchase contracts associated with these agreements, is acceptable in conclusion. Accordingly, the gist of the argument of the petition for appeal is groundless, and therefore this final appeal should be dismissed.
Justice OHASHI Masaharu

Justice OKABE Kiyoko

Justice OTANI Takehiko

Justice KIUCHI Michiyoshi

Justice YAMASAKI Toshimitsu
(This translation is provisional and subject to revision.)