SUMMARY.
| The nature of a Wrong. | ||
| Moral and legal wrongs. | ||
| The nature of a Duty. | ||
| Moral and legal duties. | ||
| The nature of a Right. | ||
| Interests. | ||
| Their protection by the rule of right. | ||
| Interests and rights. | ||
| Moral and legal rights. | ||
| The denial of moral rights. | ||
| The correlation of rights and duties. | ||
| No rights without duties. | ||
| No duties without rights. | ||
| The elements of a legal right. | ||
| 1. Person entitled, or owner. | ||
| 2. Person bound. | ||
| 3. Content. | ||
| 4. Object or subject-matter. | ||
| 5. Title. | ||
| No rights without owners. | ||
| No rights without objects. | ||
| Objects of rights | 1. Material things. | |
| 2. One’s own person. | ||
| 3. Reputation. | ||
| 4. Domestic relations. | ||
| 5. Other rights. | ||
| 6. Immaterial property. | ||
| 7. Services. | ||
| Rights in the generic sense—Any benefit conferred by the law. | ||
| 1. Rights (stricto sensu)—correlative to Duties. | ||
| 2. Liberties—correlative to Liabilities. | ||
| 3. Powers—correlative to Liabilities. | ||
| 1. Rights (stricto sensu)—what others must do for me. | ||
| 2. Liberties—what I may do for myself. | ||
| 3. Powers—what I can do as against others. | ||
| Duties, Liabilities, Disabilities. | ||
CHAPTER XI.
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]]