mode is resorted to, it was found necessary that special provisions on the subject should be introduced into the Code.
Effect of a Contract. — When a specified thing is the subject-matter of a bilateral contract, if the thing is damaged or lost from a cause not attributable to the debtor the question arises, upon whom are to fall the consequences. Is the debtor to bear the damage or loss? Is he bound to refund the purchase money if already paid, or if not paid, is he deprived of the right to demand payment? It would seem at first sight that since the delivery of the specified thing and the payment of money are originally so closely related to each other, the impossibility of delivery should release the creditor from the obligation of making payment. But this is an erroneous conception; for when a bilateral contract is once concluded it is resolvable into two sets of obligations. In the example given, one of the parties would be bound to make the delivery of the specified thing, while the other would be bound to make payment and the duty of each may be considered as an independent obligation, and there is no reason why the debtor should suffer loss occasioned by causes for which he is not responsible. The question may also be considered from another point of view. As soon as the contract is made in a case like the one above referred to, the ownership of the specified thing is transferred from one party to the other, and therefore, if it is damaged or lost, the injury should fall on the owner. Conversely, if the price of the thing should rise after the conclusion of the contract, the party who is bound to make delivery would not be entitled to demand on that account the payment of any more money than was called for by the original contract. The profit would accrue to the other party. This is the view taken by both the French and Japanese Codes, although the German Code has adopted the contrary principle and makes the debtor bear the consequences of the loss or injury.
The French Code lays down the general rule that a person can only bind himself in his own name and for his own benefit (Article 1119), and that the effect of a contract is limited to the parties to the contract (Article 11 65). This is the natural result of the principle that the object of an obligation must be capable of being estimated in money, that is, an obligation must result in a benefit to the creditor. Consequently where an agreement is so made as to confer a benefit on a third person, not a party to the contract, such an agreement would not create an obligation under the French law. The requirements of modern society demand the recognition of the contrary principle; namely, that an agreement entered into for the
