THE KINDS OF LEGAL RIGHTS.
§ 78. =Perfect and Imperfect Rights.=
Recognition by the law in the administration of justice is common to all
legal rights and duties, but the purposes and effects of this
recognition are different in different cases. All are not recognised to
the same end. Hence a division of rights and duties into two kinds,
distinguishable as _perfect_ and _imperfect_. A perfect right is one
which corresponds to a perfect duty; and a perfect duty is one which is
not merely recognised by the law, but _enforced_. A duty is enforceable
when an action or other legal proceeding, civil or criminal, will lie
for the breach of it, and when judgment will be executed against the
defendant, if need be, through the physical force of the state.[188]
Enforceability is the general rule. In all ordinary cases, if the law
will recognise a right at all, it will not stop short of the last remedy
of physical compulsion against him on whom the correlative duty lies.
_Ought_, in the mouth of the law, commonly means _must_. In all fully
developed legal systems, however, there are rights and duties which,
though undoubtedly recognised by the law, yet fall short of this typical
and perfect form.[189]
Examples of such imperfect legal rights are claims barred by lapse of
time; claims unenforceable by action owing to the absence of some
special form of legally requisite proof (such as a written document);
claims against foreign states or sovereigns, as for interest due on
foreign bonds; claims unenforceable by action as exceeding the local
limits of a court’s jurisdiction, such as claims in respect of foreign
land; debts due to an executor from the estate which he administers. In
all those cases the duties and the correlative rights are imperfect. No
action will lie for their maintenance; yet they are, for all that, legal
rights and legal duties, for they receive recognition from the law. The
statute of limitations, for example, does not provide that after a
certain time a debt shall become extinct, but merely that no action
shall thereafter be brought for its recovery. Lapse of time, therefore,
does not destroy the right, but merely reduces it from the rank of one
which is perfect to that of one which is imperfect. It remains valid for
all purposes save that of enforcement. In like manner he from whom a
chattel is taken wrongfully, and detained for six years, loses all right
to sue the taker for its recovery; but he does not cease to be the owner
of it. Nor is his ownership merely an empty title; for in divers ways it
may lead him, with the assistance of the law, to the possession and
enjoyment of his own again. All these cases of imperfect rights are
exceptions to the maxim, _Ubi jus ibi remedium_. The customary union
between the right and the right of action has been for some special
reason severed, but the right survives.
For what purposes the law will recognise an imperfect right is a
question relating to the concrete details of a legal system, and cannot
be fully discussed here. We may, however, distinguish the following
effects as those of greatest importance and most general application.
1. An imperfect right may be good as a ground of defence, though not as
a ground of action. I cannot sue on an informal contract, but if money
is paid or property delivered to me in pursuance of it, I can
successfully defend any claim for its recovery.
2. An imperfect right is sufficient to support any security that has
been given for it. A mortgage or pledge remains perfectly valid,
although the debt secured by it has ceased to be recoverable by
action.[190] But if the debt is discharged, instead of becoming merely
imperfect, the security will disappear along with it.
3. An imperfect right may possess the capacity of becoming perfect. The
right of action may not be non-existent, but may be merely dormant. An
informal verbal contract may become enforceable by action, by reason of
the fact that written evidence of it has since come into existence. In
like manner part-payment or acknowledgment will raise once more to the
level of a perfect right a debt that has been barred by the lapse of
time.
§ 79. =The Legal Nature of Rights against the State.=
A subject may claim rights against the state, no less than against
another subject. He can institute proceedings against the state for the
determination and recognition of those rights in due course of law, and
he can obtain judgment in his favour, recognising their existence or
awarding to him compensation for their infringement. But there can be no
_enforcement_ of that judgment. What duties the state recognises as
owing by it to its subjects, it fulfils of its own free will and
unconstrained good pleasure. The strength of the law is none other than
the strength of the state, and cannot be turned or used against the
state whose strength it is. The rights of the subject against the state
are therefore imperfect. They obtain legal recognition but no legal
enforcement.
The fact that the element of enforcement is thus absent in the case of
rights against the state, has induced many writers to deny that these
are legal rights at all. But as we have already seen, we need not so
narrowly define the term legal right, as to include only those claims
that are legally enforced. It is equally logical and more convenient to
include within the term all those claims that are legally recognised in
the administration of justice. All rights against the state are not
legal, any more than all rights against private persons are legal. But
some of them are; those, namely, which can be sued for in courts of
justice, and the existence and limits of which will be judicially
determined in accordance with fixed principles of law, redress or
compensation being awarded for any violation of them. To hold the
contrary, and to deny the name of legal right or duty in all cases in
which the state is the defendant, is to enter upon a grave conflict with
legal and popular speech and thought. In the language of lawyers, as in
that of laymen, a contract with the state is as much a source of legal
rights and obligations, as is a contract between two private persons;
and the right of the holder of consols is as much a legal right, as is
that of a debenture holder in a public company. It is not to the point
to say that rights against the state are held at the state’s good
pleasure, and are therefore not legal rights at all; for all other legal
rights are in the same position. They are legal rights not because the
state is bound to recognise them, but because it does so.
Whether rights against the state can properly be termed legal depends
simply on whether judicial proceedings in which the state is the
defendant are properly included within the administration of justice.
For if they are rightly so included, the principles by which they are
governed are true principles of law, in accordance with the definition
of law, and the rights defined by these legal principles are true legal
rights. The boundary line of the administration of justice has been
traced in a previous chapter. We there saw sufficient reason for
including not only the direct enforcement of justice, but all other
judicial functions exercised by courts of justice. This is the ordinary
use of the term, and it seems open to no logical objection.[191]
§ 80. =Positive and Negative Rights.=
In respect of their contents, rights are of two kinds, being either
_positive_ or _negative_. A positive right corresponds to a positive
duty, and is a right that he on whom the duty lies shall do some
positive act on behalf of the person entitled. A negative right
corresponds to a negative duty, and is a right that the person bound
shall refrain from some act which would operate to the prejudice of the
person entitled. The same distinction exists in the case of wrongs. A
positive wrong or wrong of commission is the breach of a negative duty
and the violation of a negative right. A negative wrong or wrong of
omission is the breach of a positive duty, and the infringement of a
positive right. A negative right entitles the owner of it to the
maintenance of the present position of things; a positive right entitles
him to an alteration of this position for his advantage. The former is
merely a right not to be harmed; the latter is a right to be positively
benefited. The former is a right to retain what one already has; the
latter is a right to receive something more than one already has.
In the case of a negative right the interest which is its _de facto_
basis is of such a nature that it requires for its adequate maintenance
or protection nothing more than the passive acquiescence of other
persons. All that is asked by the owner of the interest is to be left
alone in the enjoyment of it. In the case of a positive right, on the
other hand, the interest is of a less perfect and self-sufficient
nature, inasmuch as the person entitled requires for the realisation and
enjoyment of his right the active assistance of other persons. In the
former case I stand in an immediate and direct relation to the object of
my right, and claim from others nothing more than that they shall not
interfere between me and it. In the latter case I stand in a mediate and
indirect relation to the object, so that I can attain to it only through
the active help of others. My right to the money in my pocket is an
example of the first class; my right to the money in the pocket of my
debtor is an instance of the second.
The distinction is one of practical importance. It is much easier, as
well as much more necessary, for the law to prevent the infliction of
harm than to enforce positive beneficence. Therefore while liability for
hurtful acts of commission is the general rule, liability for acts of
omission is the exception. Generally speaking, all men are bound to
refrain from all kinds of positive harm, while only some men are bound
in some ways actively to confer benefits on others. No one is entitled
to do another any manner of hurt, save with special ground of
justification; but no one is bound to do another any manner of good save
on special grounds of obligation. Every man has a right against every
man that the present position of things shall not be interfered with to
his detriment; whilst it is only in particular cases and for special
reasons that any man has a right against any man that the present
position shall be altered for his advantage. I have a right against
every one not to be pushed into the water; if I have a right at all to
be pulled out, it is only on special grounds against determinate
individuals.
§ 81. =Real and Personal Rights.=
The distinction between real and personal rights is closely connected
but not identical with that between negative and positive rights. It is
based on a difference in the incidence of the correlative duties. A real
right corresponds to a duty imposed upon persons in general; a personal
right corresponds to a duty imposed upon determinate individuals. A real
right is available against the world at large; a personal right is
available only against particular persons. The distinction is one of
great prominence in the law, and we may take the following as
illustrations of it. My right to the peaceable occupation of my farm is
a real right, for all the world is under a duty towards me not to
interfere with it. But if I grant a lease of the farm to a tenant, my
right to receive the rent from him is personal; for it avails
exclusively against the tenant himself. For the same reason my right to
the possession and use of the money in my purse is real; but my right to
receive money from some one who owes it to me is personal. I have a real
right against every one not to be deprived of my liberty or my
reputation; I have a personal right to receive compensation from any
individual person who has imprisoned or defamed me. I have a real right
to the use and occupation of my own house; I have a personal right to
receive accommodation at an inn.
A real right, then, is an interest protected against the world at large;
a personal right is an interest protected solely against determinate
individuals. The distinction is clearly one of importance. The law
confers upon me a greater advantage in protecting my interests against
all persons, than in protecting them only against one or two. The right
of a patentee, who has a monopoly as against all the world, is much more
valuable than the right of him who purchases the good-will of a business
and is protected only against the competition of his vendor. If I buy a
chattel, it is an important question, whether my interest in it is
forthwith protected against every one, or only against him who sells it
to me. The main purpose of mortgages and other forms of real security is
to supplement the imperfections of a personal right by the superior
advantages inherent in a right of the other class. Furthermore, these
two kinds of rights are necessarily very different in respect of the
modes of their creation and extinction. The indeterminate incidence of
the duty which corresponds to a real right, renders impossible many
modes of dealing with it which are of importance in the case of personal
rights.
The distinction which we are now considering is closely connected with
that between positive and negative rights. All real rights are negative,
and most personal rights are positive, though in a few exceptional cases
they are negative. It is not difficult to see the reason for this
complete or partial coincidence. A real right, available against all
other persons, can be nothing more than a right to be left alone by
those persons—a right to their passive non-interference. No person can
have a legal right to the active assistance of all the world. The only
duties, therefore, that can be of general incidence are negative. It may
be objected to this, that though a private person cannot have a positive
right against all other persons, yet the state may have such a right
against all its subjects. All persons, for example, may be bound to pay
a tax or to send in census returns. Are not these duties of general
incidence, and yet positive? The truth is, however, that the right of
the state in all such cases is personal and not real. The right to
receive a tax is not one right, but as many separate rights as there are
taxpayers. If I owe ten pounds to the state as income tax, the right of
the state against me is just as personal as is that of any other
creditor, and it does not change its nature because other persons or
even all my fellow-citizens owe a similar amount on the like account. My
debt is not theirs, nor are their debts mine. The state has not one real
right available against all, but an immense number of personal rights,
each of which avails against a determinate tax-payer. On the other hand,
the right of the state that no person shall trespass on a piece of Crown
land is a single interest protected against all the world, and is
therefore a single real right. The unity of a real right consists in the
singleness of its subject-matter. The right of reputation is _one_
right, corresponding to an infinite number of duties; for the
subject-matter is one thing, belonging to one person, and protected
against all the world.
Although all real rights are negative, it is not equally true that all
personal rights are positive. This is so, indeed, in the great majority
of cases. The merely passive duty of non-interference, when it exists at
all, usually binds all persons in common. There are, however,
exceptional cases in which this is not so. These exceptional rights,
which are both negative and personal, are usually the product of some
agreement by which some particular individual has deprived himself of a
liberty which is common to all other persons. Thus all tradesmen may
lawfully compete with each other in the ordinary way of business, even
though the result of this competition is the ruin of the weaker
competitors. But in selling to another the good-will of my business I
may lawfully deprive myself of this liberty by an express agreement with
the purchaser to that effect. He thereby acquires against me a right of
exemption from competition, and this right is both personal and
negative. It is a monopoly, protected not against the world at large,
but against a determinate individual. Such rights belong to an
intermediate class of small extent, standing between rights which are
both real and negative on the one side and those which are both personal
and positive on the other.
In defining a real right as one availing against the world at large,
it is not meant that the incidence of the correlative duty is
absolutely universal, but merely that the duty binds persons in
general, and that if any one is not bound his case is exceptional.
Similarly a personal right is not one available against a single
person only, but one available against one or more _determinate_
individuals. The right of the creditor of a firm is personal, though
the debt may be due from any number of partners. Even as so explained,
however, it can scarcely be denied, that if intended as an exhaustive
classification of all possible cases, the distinction between real and
personal rights—between duties of general and of determinate
incidence—is logically defective. It takes no account of the
possibility of a third and intermediate class. Why should there not be
rights available against particular classes of persons, as opposed
both to the whole community and to persons individually determined,
for example, a right available only against aliens? An examination,
however, of the contents of any actual legal system will reveal the
fact that duties of this suggested description either do not exist at
all, or are so exceptional that we are justified in classing them as
anomalous. As a classification, therefore, of the rights which
actually obtain legal recognition, the distinction between real and
personal rights may be accepted as valid.
The distinction between a real and a personal right is otherwise
expressed by the terms right _in rem_ (or _in re_) and right _in
personam_. These expressions are derived from the commentators on the
civil and canon law. Literally interpreted, _jus in rem_ means a right
against or in respect of a thing, _jus in personam_ a right against or
in respect of a person. In truth, however, every right is at the same
time one in respect of some thing, namely its object, and against some
person, namely, the person bound. In other words, every right involves
not only a _real_, but also a _personal_ relation. Yet although these
two relations are necessarily coexistent, their relative prominence and
importance are not always the same. In real rights it is the real
relation that stands in the forefront of the juridical conception; such
rights are emphatically and conspicuously _in rem_. In personal rights,
on the other hand, it is the personal relation that forms the
predominant factor in the conception; such rights are before all things
_in personam_. For this difference there is more than one reason. In the
first place, the real right is a relation between the owner and a vague
multitude of persons, no one of whom is distinguished from any other;
while a personal right is a definite relation between determinate
individuals, and the definiteness of this personal relation raises it
into prominence. Secondly, the source or title of a real right is
commonly to be found in the character of the real relation, while a
personal right generally derives its origin from the personal relation.
In other words, if the law confers upon me a real right, it is commonly
because I stand in some special relation to the thing which is the
object of the right. If on the contrary it confers on me a personal
right, it is commonly because I stand in some special relation to the
person who is the subject of the correlative duty. If I have a real
right in a material object, it is because I made it, or found it, or
first acquired possession of it, or because by transfer or otherwise I
have taken the place of some one who did originally stand in some such
relation to it. But if I have a personal right to receive money from
another, it is commonly because I have made a contract with him, or have
come in some other manner to stand in a special relation to him. Each of
these reasons tends to advance the importance of the real relation in
real rights, and that of the personal relation in personal rights. The
former are primarily and pre-eminently _in rem_; the latter primarily
and pre-eminently _in personam_.
The commonest and most important kind of _jus in personam_ is that which
has been termed by the civilians and canonists _jus ad rem_. I have a
_jus ad rem_, when I have a right that some other right shall be
transferred to me or otherwise vested in me. _Jus ad rem_ is a right to
a right. We have already seen, in the previous chapter, that it is
possible for one right to be in this way the subject-matter of another.
A debt, a contract to assign property, and a promise of marriage are
examples of this. It is clear that such a right to a right must be in
all cases _in personam_. The right which is to be transferred,
however—the subject-matter of the _jus ad rem_—may be either real or
personal, though it is more commonly real. I may agree to assign or
mortgage a debt, or the benefit of a contract, no less than lands or
chattels. An agreement to assign a chattel creates a _jus ad jus in
rem_; an agreement to assign a debt or a contract creates a _jus ad jus
in personam_.[192]
The terms _jus in rem_ and _jus in personam_ were invented by the
commentators on the civil law, and are not found in the original
sources. The distinction thereby expressed, however, received adequate
recognition from the Roman lawyers. They drew a broad line of
demarcation between _dominium_ on the one side and _obligatio_ on the
other, the former including real, and the latter personal rights.
_Dominium_ is the relation between the owner of a real right
(_dominus_) and the right so vested in him. _Obligatio_ is the
relation between the owner of a personal right (_creditor_) and the
person on whom the correlative duty lies. _Obligatio_, in other words,
is the legal bond by which two or more determinate individuals are
bound together. Our modern English obligation has lost this specific
meaning, and is applied to any duty, whether it corresponds to a real
or to a personal right. It is to be noticed, however, that both
_dominium_ and _obligatio_ are limited by the Romans to the sphere of
what, in the succeeding part of this chapter, we term proprietary
rights. A man’s right to his personal liberty or reputation, for
example, falls neither within the sphere of _dominium_ nor within that
of _obligatio_. The distinction between real and personal rights, on
the other hand, is subject to no such limitation.
The terms _jus in rem_ and _jus in personam_ are derived from the
Roman terms _actio in rem_ and _actio in personam_. An _actio in rem_
was an action for the recovery of _dominium_; one in which the
plaintiff claimed that a certain thing belonged to him and ought to be
restored or given up to him. An _actio in personam_ was one for the
enforcement of an _obligatio_; one in which the plaintiff claimed the
payment of money, the performance of a contract, or the protection of
some other personal right vested in him as against the defendant.[193]
Naturally enough, the right protected by an _actio in rem_ came to be
called _jus in rem_, and a right protected by an _actio in personam,
jus in personam_.
§ 82. =Proprietary and Personal Rights.=
Another important distinction is that between proprietary and personal
rights. The aggregate of a man’s proprietary rights constitutes his
_estate_, his _assets_, or his _property_ in one of the many senses of
that most equivocal of legal terms. German jurisprudence is superior to
our own in possessing a distinct technical term for this aggregate of
proprietary rights, namely _Vermögen_, the rights themselves being
_Vermögensrechte_. The French speak in the same fashion of _avoir_ or
_patrimoine_. The sum total of a man’s personal rights, on the other
hand, constitutes his _status_ or personal condition, as opposed to his
estate. If he owns land, or chattels, or patent rights, or the good-will
of a business, or shares in a company, or if debts are owing to him, all
these rights pertain to his estate. But if he is a free man and a
citizen, a husband and a father, the rights which he has as such pertain
to his status or standing in the law.[194]
What, then, is the essential nature of this distinction? It lies in the
fact that proprietary rights are _valuable_, and personal rights are
not. The former are those which are worth money; the latter are those
that are worth none. The former are the elements of a man’s _wealth_;
the latter are merely elements in his _well-being_. The former possess
not merely juridical, but also economic significance; while the latter
possess juridical significance only.[195]
It makes no difference in this respect, whether a right is _jus in rem_
or _jus in personam_. Rights of either sort are proprietary, and make up
the estate of the possessor, if they are of economic value. Thus my
right to the money in my pocket is proprietary; but not less so is my
right to the money which I have in the bank. Stock in the funds is part
of a man’s estate, just as much as land and houses; and a valuable
contract, just as much as a valuable chattel. On the other hand, a man’s
rights of personal liberty, and of reputation, and of freedom from
bodily harm are personal, not proprietary. They concern his welfare, not
his wealth; they are juridical merely, not also economic. So also with
the rights of a husband and father with respect to his wife and
children. Rights such as these constitute his legal status, not his
legal estate. If we go outside the sphere of private, into that of
public law, we find the list of personal rights greatly increased.
Citizenship, honours, dignities, and official position in all its
innumerable forms pertain to the law of status, not to that of
property.[196]
With respect to the distinction between proprietary and personal
rights—estate and status—there are the following supplementary
observations to be made.
1. The distinction is not confined to rights in the strict sense, but
is equally applicable to other classes of rights also. A person’s
estate is made up not merely of his valuable claims against other
persons, but of such of his powers and liberties, as are either
valuable in themselves, or are accessory to other rights which are
valuable. A landlord’s right of re-entry is proprietary, no less than
his ownership of the land; and a mortgagee’s right of sale, no less
than the debt secured. A general power of appointment is proprietary,
but the power of making a will or a contract is personal.
2. The distinction between personal and proprietary rights has its
counterpart in that between personal and proprietary duties and
liabilities. The latter are those which relate to a person’s estate,
and diminish the value of it. They represent a loss of money, just as
a proprietary right represents the acquisition of it. All others are
personal. A liability to be sued for a debt is proprietary, but a
liability to be prosecuted for a crime is personal. The duty of
fulfilling a contract for the purchase of goods is proprietary, but
the duty of fulfilling a contract to marry is personal.
3. Although the term estate includes only rights (in the generic
sense), the term status includes not only rights, but also duties,
liabilities, and disabilities. A minor’s contractual disabilities are
part of his status, though a man’s debts are not part of his estate.
Status is the sum of one’s personal duties, liabilities, and
disabilities, as well as of one’s personal rights.
4. A person’s status is made up of smaller groups of personal rights,
duties, liabilities, and disabilities, and each of these constituent
groups is itself called a status. Thus the same person may have at the
same time the status of a free man, of a citizen, of a husband, of a
father, and so on. So we speak of the status of a wife, meaning all
the personal benefits and burdens of which marriage is the legal
source and title in a woman. In the same way we speak of the status of
an alien, a lunatic, or an infant.
5. It may be thought that proprietary rights should be defined as
those which are transferable, rather than as those which are valuable.
As to this, it seems clear that all transferable rights are also
proprietary; for if they can be transferred, they can be sold, and are
therefore worth money. But it is not equally true that all proprietary
rights are transferable. Popular speech does not, and legal theory
need not, deny the name of property to a valuable right, merely
because it is not transferable. A pension may be inalienable; but it
must be counted, for all that, as wealth or property. Debts were
originally incapable of assignment; but even then they were elements
of the creditor’s estate. A married woman may be unable to alienate
her estate; but it is an estate none the less. The true test of a
proprietary right is not whether it can be alienated, but whether it
is equivalent to money; and it may be equivalent to money, though it
cannot be sold for a price. A right to receive money or something
which can itself be turned into money, is a proprietary right, and is
to be reckoned in the possessor’s estate, even though inalienable.
6. It is an unfortunate circumstance that the term status is used in a
considerable variety of different senses. Of these we may distinguish
the following:
(a) _Legal condition of any kind, whether personal or proprietary._
This is the most comprehensive use of the term. A man’s status
in this sense includes his whole position in the law—the sum
total of his legal rights, duties, liabilities, or other legal
relations, whether proprietary or personal, or any particular
group of them separately considered. Thus we may speak of the
status of a landowner, of a trustee, of an executor, of a
solicitor, and so on. It is much more common, however, to
confine the term in question to some particular description of
legal condition—some particular kind of status in this wide
sense. Hence the other and specific meanings of the term.
(b) _Personal legal condition_; that is to say, a man’s legal
condition, only so far as his personal rights and burdens are
concerned, to the exclusion of his proprietary relations. It is
in this sense that we have hitherto used the term. Thus we speak
of the status of an infant, of a married woman, of a father, of
a public official, or of a citizen; but not of a landowner or of
a trustee.
(c) _Personal capacities and incapacities_, as opposed to the other
elements of personal status. By certain writers the term status
is applied not to the whole sphere of personal condition, but
only to one part of it, namely that which relates to personal
capacity and incapacity.[197] The law of status in this sense
would include the rules as to the contractual capacities and
incapacities of married women, but not the personal rights and
duties existing between her and her husband. So it would include
the law as to infant’s contracts, but not the law as to the
mutual rights of parent and child. This law of status in the
sense of personal capacity is considered as a special branch of
the law, introductory to the main body of legal doctrine, on the
ground that a knowledge of the different capacities of different
classes of persons to acquire rights and to enter into legal
relations is pre-supposed in the exposition of those rights and
legal relations themselves. It cannot be doubted that there are
certain rules which so permeate the law, that it is necessary in
any well-arranged system to dispose of them once for all in a
preliminary portion of the code, instead of constantly repeating
them in connexion with every department of the law in which they
are relevant; but it may be doubted whether the rules of
personal capacity belong to this category. Surely the
contractual capacity of a minor is best dealt with in the law of
contracts, his capacity to commit a tort in the law of tort, his
capacity to commit a crime in the criminal law, his capacity to
marry in the law of marriage. Moreover, even if personal
capacity is a suitable subject for separate and introductory
treatment in the law, there seems little justification for
confining the term status to this particular branch of personal
condition.
(d) _Compulsory as opposed to conventional personal condition._
Status is used by some writers to signify a man’s personal legal
condition, so far only as it is imposed upon him by the law
without his own consent, as opposed to the condition which he
has acquired for himself by agreement. The position of a slave
is a matter of status, the position of a free servant is a
matter of contract. Marriage creates a status in this sense, for
although it is entered into by way of consent, it cannot be
dissolved in that way, and the legal condition created by it is
determined by the law, and cannot be modified by the agreement
of the parties. A business partnership, on the other hand,
pertains to the law of contract, and not to that of status.[198]
7. _The law of persons and the law of things._ Certain of the Roman
lawyers, for example Gaius, divided the whole of the substantive law
into two parts, which they distinguished as _jus quod ad personas
pertinet_ and _jus quod ad res pertinet_, terms which are commonly
translated as the law of persons and the law of things. There has been
much discussion as to the precise significance of this distinction,
and it is possible that it was based on no clear and consistent
logical analysis at all. Any adequate investigation of the matter
would here be out of place, but it is suggested that the true basis of
the division is the distinction between personal and proprietary
rights, between status and property. The _jus quod ad res pertinet_ is
the law of property, the law of proprietary rights; the _jus quod ad
personas pertinet_ is the law of status, the law of personal rights,
so far as such rights require separate consideration, instead of being
dealt with in connexion with those portions of the law of property to
which they are immediately related.[199]
§ 83. =Rights in re propria and Rights in re aliena.=
Rights may be divided into two kinds, distinguished by the civilians as
_jura in re propria_ and _jura in re aliena_. The latter may also be
conveniently termed _encumbrances_, if we use that term in its widest
permissible sense.[200] A right _in re aliena_ or encumbrance is one
which limits or derogates from some more general right belonging to some
other person in respect of the same subject-matter. All others are _jura
in re propria_. It frequently happens that a right vested in one person
becomes subject or subordinate to an adverse right vested in another. It
no longer possesses its full scope or normal compass, part of it being
cut off to make room for the limiting and superior right which thus
derogates from it. Thus the right of a landowner may be subject to and
limited by that of a tenant to the temporary use of the property; or to
the right of a mortgagee to sell or take possession; or to the right of
a neighbouring landowner to the use of a way or other easement; or to
the right of the vendor of land in respect of restrictive covenants
entered into by the purchaser as to the use of it; for example, a
covenant not to build upon it.
A right subject to an encumbrance may be conveniently designated as
_servient_, while the encumbrance which derogates from it may be
contrasted as _dominant_. These expressions are derived from, and
conform to, Roman usage in the matter of servitudes. The general and
subordinate right was spoken of figuratively by the Roman lawyers as
being in bondage to the special right which prevailed over and derogated
from it. The term _servitus_, thus derived, came to denote the superior
right itself rather than the relation between it and the other; just as
_obligatio_ came to denote the right of the creditor, rather than the
bond of legal subjection under which the debtor lay.[201]
The terms _jus in re propria_ and _jus in re aliena_ were devised by the
commentators on the civil law, and are not to be found in the original
sources. Their significance is clear. The owner of a chattel has _jus in
re propria_—a right over his own property; the pledgee or other
encumbrancer of it has _jus in re aliena_—a right over the property of
some one else.
There is nothing to prevent one encumbrance from being itself subject to
another. Thus a tenant may sublet; that is to say, he may grant a lease
of his lease, and so confer upon the sub-lessee a _jus in re aliena_ of
which the immediate subject-matter is itself merely another right of the
same quality. The right of the tenant in such a case is dominant with
regard to that of the landowner, but servient with regard to that of the
sub-lessee. So the mortgagee of land may grant a mortgage of his
mortgage; that is to say, he may create what is called a sub-mortgage.
The mortgage will then be a dominant right in respect of the ownership
of the land, but a servient right with respect to the sub-mortgage. So
the easements appurtenant to land are leased or mortgaged along with it;
and therefore, though themselves encumbrances, they are themselves
encumbered. Such a series of rights, each limiting and derogating from
the one before it, may in theory extend to any length.
A right is not to be classed as encumbered or servient, merely on
account of its _natural_ limits and restrictions. Otherwise all rights
would fall within this category, since none of them are unlimited in
their scope, all being restrained within definite boundaries by the
conflicting interests and rights of other persons. All ownership of
material things, for example, is limited by the maxim, _sic utere tuo ut
alienum non laedas_. Every man must so restrain himself in the use of
his property, as not to infringe upon the property and rights of others.
The law confers no property in stones, sufficiently absolute and
unlimited to justify their owner in throwing them through his
neighbour’s windows. No landowner may by reason of his ownership inflict
a nuisance upon the public or upon adjoining proprietors. But in these
and all similar cases we are dealing merely with the normal and natural
boundaries of the right, not with those exceptional and artificial
restrictions which are due to the existence of _jura in re aliena_
vested in other persons. A servient right is not merely a limited right,
for all are limited; it is a right so limited that its ordinary
boundaries are infringed. It is a right which, owing to the influence of
some other and superior right, is prevented from attaining its normal
scope and dimensions. Until we have first settled the natural contents
and limits of a right, there can be no talk of other rights which
qualify and derogate from it.
It is essential to an encumbrance, that it should, in the technical
language of our law, _run with_ the right encumbered by it. In other
words the dominant and the servient rights are necessarily _concurrent_.
By this it is meant that an encumbrance must follow the encumbered right
into the hands of new owners, so that a change of ownership will not
free the right from the burden imposed upon it. If this is not so—if the
right is transferable free from the burden—there is no true encumbrance.
For the burden is then merely personal to him who is subject to it, and
does not in truth limit or derogate from the right itself. This right
still exists in its full compass, since it can be transferred in its
entirety to a new owner. For this reason an agreement to sell land vests
an encumbrance or _jus in re aliena_ in the purchaser; but an agreement
to sell a chattel does not. The former agreement runs with the property,
while the latter is non-concurrent. So the fee simple of land may be
encumbered by negative agreements, such as a covenant not to build; for
speaking generally, such obligations will run with the land into the
hands of successive owners. But positive covenants are merely personal
to the covenantor, and derogate in no way from the fee simple vested in
him, which he can convey to another free from any such burdens.
Concurrence, however, may exist in different degrees; it may be more or
less perfect or absolute. The encumbrance may run with the servient
right into the hands of some of the successive owners and not into the
hands of others. In particular, encumbrances may be concurrent either in
law or merely in equity. In the latter case the concurrence is imperfect
or partial, since it does not prevail against the kind of owner known in
the language of the law as a purchaser for value without notice of the
dominant right. Examples of encumbrances running with then servient
rights at law are easements, leases, and legal mortgages. On the other
hand an agreement for a lease, an equitable mortgage, a restrictive
covenant as to the use of land, and a trust will run with their
respective servient rights in equity but not at law.
It must be carefully noted that the distinction between _jura in re
propria_ and _jura in re aliena_ is not confined to the sphere of real
rights or _jura in rem_. Personal, no less than real rights may be
encumbrances of other rights. Personal, no less than real rights may be
themselves encumbered. A debtor, for example, may grant a security over
the book debts owing to him in his business or over his shares in a
company, as well as over his stock in trade. A life tenancy of money in
the public funds is just as possible as a life tenancy of land. There
can be a lien over a man’s share in a trust fund, as well as over a
chattel belonging to him. The true test of an encumbrance is not whether
the encumbrancer has a _jus in rem_ available against all the world, but
whether he has a right which will avail against subsequent owners of the
encumbered property.
The chief classes of encumbrances are four in number, namely, Leases,
Servitudes, Securities, and Trusts. In a later chapter we shall
consider these more at length, and in the meantime it is sufficient
briefly to indicate their nature.
1. A lease is the encumbrance of property vested in one man by a right
to the possession and use of it vested in another.
2. A servitude is a right to the limited use of a piece of land
unaccompanied either by the ownership or by the possession of it; for
example, a right of way or a right to the passage of light or water
across adjoining land.
3. A security is an encumbrance vested in a creditor over the property
of his debtor, for the purpose of securing the recovery of the debt; a
right, for example, to retain possession of a chattel until the debt
is paid.
4. A trust is an encumbrance in which the ownership of property is
limited by an equitable obligation to deal with it for the benefit of
someone else. The owner of the encumbered property is the trustee; the
owner of the encumbrance is the beneficiary.
§ 84. =Principal and Accessory Rights.=
The relation between principal and accessory rights is the reverse of
that just considered as existing between servient and dominant rights.
For every right is capable of being affected to any extent by the
existence of other rights; and the influence thus exercised by one upon
another is of two kinds, being either adverse or beneficial. It is
adverse, when one right is limited or qualified by another vested in a
different owner. This is the case already dealt with by us. It is
beneficial, on the other hand, when one right has added to it a
supplementary right vested in the same owner. In this case the right so
augmented may be termed the _principal_, while the one so appurtenant to
it is the _accessory_ right. Thus a security is accessory to the right
secured; a servitude is accessory to the ownership of the land for whose
benefit it exists; the rent and covenants of a lease are accessory to
the landlord’s ownership of the property; covenants for title in a
conveyance are accessory to the estate conveyed; and a right of action
is accessory to the right for whose enforcement it is provided.
A real right may be accessory to a personal; as in the case of a debt
secured by a mortgage of land. A personal right may be accessory to a
real; as in the case of the covenants of a lease. A real right may be
accessory to a real; as in the case of servitudes appurtenant to land.
And finally a personal right may be accessory to a personal; as in the
case of a debt secured by a guarantee.
A right which is dominant with respect to one right, is often at the
same time accessory with respect to another. It limits one right, and at
the same time augments another. A typical example is a servitude over
land. The owner of Whiteacre has a right of way over the adjoining farm
Blackacre to the highway. This right of way is dominant with respect to
Blackacre, and accessory with respect to Whiteacre. For the burden of it
goes with Blackacre, and the benefit of it with Whiteacre. Blackacre is
accordingly called the servient, and Whiteacre the dominant tenement. So
a mortgage is a dominant right with respect to the property subject to
it, and an accessory right with respect to the debt secured by it. In
like manner a landlord’s right to his rent is dominant with regard to
the lease, but accessory with regard to the reversion. This double
character, however, is not necessary or universal. A public right of way
is an encumbrance of the land subject to it, but it is not accessory to
any other land. So a lease is a dominant right which is not at the same
time accessory to any principal.
§ 85. =Legal and Equitable Rights.=
In a former chapter we considered the distinction between common law and
equity. We saw that these two systems of law, administered respectively
in the courts of common law and the Court of Chancery, were to a
considerable extent discordant. One of the results of this discordance
was the establishment of a distinction between two classes of rights,
distinguishable as legal and equitable. Legal rights are those which
were recognised by the courts of common law. Equitable rights (otherwise
called equities) are those which were recognised solely in the Court of
Chancery. Notwithstanding the fusion of law and equity by the Judicature
Act, 1873, this distinction still exists, and must be reckoned with as
an inherent part of our legal system. That which would have been merely
an equitable right before the Judicature Act is merely an equitable
right still.
Inasmuch as all rights, whether legal or equitable, now obtain legal
recognition in all courts, it may be suggested that the distinction is
now of no importance. This is not so however, for in two respects at
least, these two classes of rights differ in their practical effects.
1. The methods of their creation and disposition are different. A legal
mortgage of land must be created by deed, but an equitable mortgage may
be created by a written agreement or by a mere deposit of title-deeds. A
similar distinction exists between a legal and an equitable lease, a
legal and an equitable servitude, a legal and an equitable charge on
land, and so on.
2. Equitable rights have a more precarious existence than legal rights.
Where there are two inconsistent legal rights claimed adversely by
different persons over the same thing, the first in time prevails. _Qui
prior est tempore potior est jure._ A similar rule applies to the
competition of two inconsistent equitable rights. But when a legal and
an equitable right conflict, the legal will prevail over and destroy the
equitable, even though subsequent to it in origin, provided that the
owner of the legal right acquired it for value and without notice of the
prior equity. As between a prior equitable mortgage, for example, and a
subsequent legal mortgage, preference will be given to the latter. The
maxim is: Where there are equal equities, the law will prevail. This
liability to destruction by conflict with a subsequent legal right is an
essential feature and a characteristic defect of all rights which are
merely equitable.[202]
SUMMARY.
I. Rights { Perfect—enforceable by law.
{ Imperfect—recognised by law, but not enforceable.
The legal quality of rights against the state.
{ Positive—correlative to positive duties and negative wrongs.
II. Rights { Negative—correlative to negative duties and positive wrongs.
{ Real—_in rem_ or _in re_—correlative to duties of indeterminate
III. Rights { Personal—_in personam_—correlative to duties of determinate
incidence (almost all positive).
_Jura ad rem._
_Dominium and obligatio._
{ Proprietary—constituting a person’s _estate_ or property.
IV. Rights { Personal—constituting a person’s _status_ or personal condition.
Other uses of the term _status_.
{ _In re propria._
V. Rights { _In re aliena—servitus_—encumbrance.
The natural limits of rights, distinguished from encumbrances.
The concurrence of the encumbrance and the right encumbered.
Encumbrances either real or personal rights.
{ 1. Leases.
Classes of encumbrances { 2. Servitudes.
{ 3. Securities.
{ 4. Trusts.
VI. Principal and Accessory Rights.
VII. Legal and Equitable Rights.
VIII. Primary and Sanctioning Rights.