SAKURA Law Office is pleased to announce that, on Saturday, December 19, 2026, at the “Consumer Law Seminar in Kanazawa,” hosted by the Kanazawa Council of the Ishikawa Prefecture Judicial Scriveners Association and co-hosted by the Ishikawa Prefecture Judicial Scriveners Association, our attorney Naoki Kanayama (Professor Emeritus of Keio University and Director of the SAKURA Institute of Legal Studies) will deliver a lecture on the “theory of assistants in contract formation,” which he has advocated for many years.
The seminar is intended for judicial scriveners (shiho shoshi) and judicial scrivener assistants who confront the realities of consumer harm, and will examine recent developments in unscrupulous business practices and legal reforms, together with theory and practice for the relief of victims. In his lecture from 3:00 p.m. to 5:00 p.m. on the same day, Mr. Kanayama will take up a question that concerns both civil law scholarship and consumer law practice: in fraudulent transactions carried out with the use of loans, how should responsibility be understood, not only for the person who made the unlawful solicitation, but also for those who supported the transaction financially?
The “theory of assistants in contract formation” is a theory that reexamines how the conduct of a third party involved in the conclusion of a contract, where that third party engages in unlawful solicitation or the like, should be assessed in relation to the contracting party, and how such an assessment can lead to the relief of victims. Starting from a paper that Mr. Kanayama published in Hogaku Kenkyu in 2015, he has continued his research and has recently called for the need to test the theory’s potential in actual litigation.
Financial Transactions and Fraud Victimization — Issues Left Unresolved by Conventional Approaches to Liability
Behind this lecture lies a transactional structure in which, in the purchase of investment real estate, abusive investment solicitation and similar cases, consumers who respond to a third party’s solicitation obtain loans from banks, consumer finance companies or credit companies, with the result that harm arises or expands. Even where the solicitor and the lender are formally separate parties, in cases where the transaction itself would not have come into existence without the loan, the question arises whether assessing each party’s involvement in isolation can provide sufficient relief.
Mr. Kanayama has previously examined a judgment of the Tokyo High Court of May 26, 2015 (Hanrei Jiho No. 2280, p. 69), which concerned a case in which a purchaser bought investment real estate after being solicited by a person met through a matchmaking website, and borrowed the purchase funds from a financial institution. The judgment denied the lender’s tort liability, on grounds including that it was not established that the lender had a close relationship with the solicitors and had jointly caused the transaction to be carried out, or that the solicitors had been entrusted with brokering the loan agreement. The question of what legal doctrine should be used to assess the relationship between the formal contracting party and the person who actually made the solicitation emerges sharply in cases of this kind.
Of course, the mere fact that a loan was used in a fraudulent transaction does not immediately give rise to tort liability on the part of a financial institution or the like. On the other hand, even where rescission of a loan agreement may be asserted on the ground of fraud by the solicitor, the legal requirements must be examined rigorously, and even if rescission is allowed, the question of repaying loan funds already received does not necessarily disappear. Whether rescission is available under Article 5 of the Consumer Contract Act, Article 96, paragraph (2) of the Civil Code and similar provisions must be considered separately from the issues of restitution, settlement or damages that follow rescission.
A New Structure of Responsibility Raised by the “Theory of Assistants in Contract Formation”
It is in this context that Mr. Kanayama has advocated the “theory of assistants in contract formation,” which focuses on the cooperation among the persons involved in the process of contract formation. Underlying the theory is the question of how, in light of the realities of transactions, to understand the duty to provide appropriately, before a contract is concluded, important information that influences the other party’s decision, and the duty not to cause harm to others through unlawful conduct. The judgment of the Second Petty Bench of the Supreme Court of April 22, 2011 (Minshu Vol. 65, No. 3, p. 1405) likewise indicates that, while distinguishing such liability from contractual liability for non-performance, tort liability may arise for a breach of the duty of explanation under the principle of good faith prior to the conclusion of a contract.
Mr. Kanayama’s theory focuses on cases in which a lender or similar party “utilizes or tolerates” acts assisting contract formation by an independent third party, and conceives a framework for assessing the third party’s unlawful conduct in relation to the liability of the lender or similar party. Can a person who entrusts the conclusion of contracts to a third party under the social division of labor, or who makes use of the third party’s work, automatically escape the legal responsibility that accompanies contract formation solely on the ground that a third party was interposed? The distinctiveness of this theory lies in confronting that question directly.
If this theoretical construction allows a third party’s unlawful conduct to be attributed to a contracting party, room arises to examine, from a perspective different from conventional approaches, whether rescission under Article 96, paragraph (1) of the Civil Code and claims for damages under Article 709 of the same Code are available. Furthermore, where a claim for damages against a financial institution or the like is specifically established and the amount and the requirements for set-off are satisfied, set-off against the obligation to repay the loan may come into question as one means of relief. These points, however, indicate the potential for development of the theory advocated by Mr. Kanayama; they do not mean that rescission or the extinguishment of repayment obligations will automatically be recognized in all loan transactions.
What is important is to scrutinize the relationship between the person who made the fraudulent solicitation and the person who provided the funds that enabled the transaction in light of the actual transactional structure, rather than handling it solely on the basis of formal party status or names. The significance of this research lies not only in the question of who should bear the victim’s loss and on what basis, but also in how to build into the legal system incentives for financial institutions and other parties to verify the propriety of transactions.
From Theory to Practice — Toward Collaboration with Legal Professionals Across Japan
Mr. Kanayama has worked on this issue through, among other writings, “Theory of Assistants in Contract Formation” in Hogaku Kenkyu, Vol. 88, No. 7 (2015), and “Theory of Assistants in Contract Formation, Part 2: Reflecting on the Lloyds-Suruga Bank Case” in Doshisha Hogaku, Vol. 68, No. 7 (2017). In “Revisiting the Theory of Assistants in Contract Formation — (3, Final) Simultaneous Litigation Across Japan!”, published in Consumer Law News No. 148 (July 2026), he advocates the need for collaboration with attorneys and judicial scriveners in various regions in order to test the theory in judicial practice and connect it to the relief of fraud victims.
What Mr. Kanayama envisions is an effort that pursues the possibility of relief in individual cases while also having legal professionals in different regions bring together theory and practice on the same kinds of issues, developing the interpretation of the Civil Code through an accumulation of court decisions. Because today’s fraudulent transactions are built by combining multiple business operators, contracts and loans, there are limits to what a single legal professional or a single case can do to resolve the problems that victims face. We believe that this seminar, which brings together the experience of judicial scriveners who address consumer issues in their communities with insights from civil law theory and litigation practice, will be a valuable opportunity to examine such challenges.
Seminar Overview
Date
Saturday, December 19, 2026
Entire seminar
1:00 p.m. – 5:00 p.m.
Mr. Kanayama’s lecture
3:00 p.m. – 5:00 p.m. (including Q&A)
Venue
Ishikawa Prefecture Local Industry Promotion Center, Main Building, 5F, Training Room No. 5 (2-1 Kuratsuki, Kanazawa, Ishikawa)
Host / Co-host
Host: Kanazawa Council of the Ishikawa Prefecture Judicial Scriveners Association; Co-host: Ishikawa Prefecture Judicial Scriveners Association
Eligible participants
Judicial scriveners and judicial scrivener assistants
Fee / capacity
Free of charge; first come, first served, limited to 150 participants
Application deadline / method
By Monday, November 30, 2026. Applications for the seminar are accepted by FAX only (+81-76-291-4285; 076-291-4285 within Japan). The seminar will not be held online.
Please apply for participation in accordance with the organizer’s instructions. Our firm does not accept seminar registrations.
SAKURA Law Office’s Initiatives and Inquiries
At SAKURA Law Office, we place importance on returning to the resolution of real disputes the results of Mr. Kanayama’s long-standing research in civil law, contract law and comparative law. In matters involving investment fraud accompanied by loans, abusive business practices, contracts concluded as a result of improper solicitation, and the liability of third parties involved in contract formation, we will likewise carefully examine the facts and the existing case law and consider the remedies available.
In particular, where obligations to banks, credit companies or consumer finance companies remain in connection with fraud victimization, it is necessary to confirm individually each party’s role in the solicitation process, the circumstances in which the loan agreement was concluded, the relationship with the financial institution, and the legal nature of the repayment obligation. We will also consider how to respond to inquiries from victims, and from attorneys and judicial scriveners handling consumer matters, after confirming the nature of the matter, the presence of any conflict of interest and similar points.
Going forward, SAKURA Law Office will continue to return the results of research and discussion at the SAKURA Institute of Legal Studies to legal practice and to society, and, by bridging legal scholarship and practice, will pursue more effective possibilities for the relief of victims.
Inquiries: SAKURA Law Office Official Contact Form
4F, Ark Hills South Tower, 1-4-5 Roppongi, Minato-ku, Tokyo 106-0032, Japan
Managing Partner Kenshiro Michishita
Related Materials
Profile of Attorney Naoki Kanayama (SAKURA Law Office)
SAKURA Institute of Legal Studies “Manifesto”
Consumer Law News No. 148 (2026): List of Articles (in Japanese)
Supreme Court, Second Petty Bench, Judgment of April 22, 2011 (full text; in Japanese)