2017.12.14

2017 (Ju) 675

Minshu Vol. 71, No. 10

Judgment on whether or not real property constitutes an “object” as referred to in Article 521 of the Commercial Code as the subject of a right of retention of merchants

Case claiming eviction from building

Judgment of the First Petty bench, dismissed

Osaka High Court, Judgment of December 16, 2016

Real property constitutes an “object” as referred to in Article 521 of the Commercial Code as the subject of the right of retention of merchants

Article 521 of the Commercial Code and Article 295, paragraph (1) of the Civil Code



Commercial Code

(Right of Retention of Merchants)

Article 521 When any claim between merchants arising from an act that

constitutes a commercial transaction for both parties is due, the obligee may

retain any object or negotiable instruments of value owned by the obligor of

which the obligee has taken possession by way of the commercial transaction

with the obligor, until the claim is satisfied; provided, however, that this shall

not apply where the parties manifest their intention otherwise.

Civil Code

Article 295 (1) If a possessor of a Thing belonging to another person has a claim that has arisen with respect to that Thing, he/she may retain that thing until that claim is satisfied; provided, however, that this shall not apply if such claim has not yet fallen due.

The final appeal is dismissed.

The cost of the final appeal shall be borne by the appellant.

Reasons for the petition for acceptance of final appeal filed by the appellant (excluding the portion excluded)



1. The appellant is a company whose objectives include the manufacture of ready-mixed concrete. In December 2006, the appellant leased and handed over the land listed under number 5 of the List of Properties attached to the judgment in first instance owned by the appellant (hereinafter referred to as the “Land”) to the appellee, which is a company whose objectives include the general motor truck transportation business. The contract for the lease mentioned above was terminated by the appellant in May 2014. Since before the termination of the aforementioned lease contract, the appellee has had claims for transportation charges against the appellant which accrued under a transportation service contract with the appellant and which are due for payment.

In this case, the appellant claims eviction of the appellee from the Land based on the appellant’s right of ownership. The appellee challenges the appellant’s claim, alleging that the appellee has a right of retention over the Land under Article 521 of the Commercial Code, in which the aforementioned claims for transportation charges are the secured claims.

2. The appellant argues that the court of prior instance’s judgment, which found that the appellee has a right of retention under Article 521 of the Commercial Code over the Land, erred in the interpretation and application of law because real property does not constitute an “object” as referred to in the same article.

3. Let us now examine this point. The Civil Code provides that “Things” under the same code are real estate and movables, which are tangible objects (Article 85 and Article 86, paragraphs (1) and (2)), while providing that the subject of a right of retention is a “Thing” (Article 295, paragraph (1)), without excluding real property from such subject. On the other hand, Article 521 of the Commercial Code provides that the subject of a right of retention is “any object or negotiable instruments,” with no words suggesting that real property is excluded from such subject. The Court has found no other grounds for construing that the term “object” as referred to in the said article is different from the term “Thing” under the Civil Code.

In addition, the Court understands that the intention of Article 521 of the Commercial Code is to specifically give the obligee the right to retain any object, etc. owned by the obligor of which the obligee has taken possession by way of a commercial transaction, in order to secure the claim arising from the act constituting the commercial transaction for the benefit of both parties, with the intention of ensuring the maintenance and safety of credit transactions between merchants. In light of the actual circumstances where transactions of real property between merchants are widespread, the understanding that real property can constitute the subject of a right of retention under the same article is consistent with the intention described above.

For the reasons described above, it is appropriate to understand that real property constitutes an “object” as referred to in Article 521 of the Commercial Code as the subject of a right of retention of merchants.

4. The court of prior instance’s judgment, which is consistent with the above, is acceptable as legitimate. The reasons for final appeal are not acceptable.

The final appeal for the rest of the claims is dismissed, because the corresponding reasons for petition for acceptance of final appeal were excluded in the decision to accept final appeal.

Accordingly, the Court unanimously decides as set forth in the main text.

Justice KOIKE Hiroshi

Justice IKEGAMI Masayuki

Justice OTANI Naoto

Justice KIZAWA Katsuyuki

Justice YAMAGUCHI Atsushi