It is clear that the distinction between movables and immovables is in truth and in fact applicable to material objects only. Yet, the law has made an unfortunate attempt to apply it to rights also. Rights no less than things are conceived by the law as having a local situation, and as being either movable or permanently fixed in a definite locality. The origin of this illogical conception is to be found in the identification of rights of ownership with the material things which are the objects of them. I am said to own land and chattels, as well as easements, shares, debts, contracts, and patents. All these things are equally property, and since some of them have a local situation and can be truly classed as movable or immovable, the law has been led by inadvertence to attribute these qualities to all of them. It has recognised in things which are incorporeal certain attributes which in truth pertain to things corporeal only. It has divided the whole sphere of proprietary rights by reference to a distinction which is truly applicable not to rights at, all, but to physical objects. Nor is this merely a peculiarity of English law, for it is found in Continental systems also.[[418]]
On what principle, then, does the law determine whether a right is to be classed as immovable or as movable? The general rule is that a right has in this respect the same quality as its subject-matter. Every right over an immovable thing, whether it is a right of ownership, or a lease, or a servitude, or a security, or any other jus in re aliena, is itself immovable, and every right over a movable thing is itself movable. So far there is no difficulty. What shall we say, however, of those rights which have no material objects at all, such as a copyright, a patent, the good-will of a business, a trade-mark, or the benefit of a contract? The answer is that all such rights are classed by the law as movable. For the class of movable property is residuary, and includes all rights which can make good no claim to be classed as immovable.
The law not merely classifies rights as movable and immovable, but goes further in the same direction, and attributes local situation to them. It undertakes to say not merely whether a right exists, but where it exists. Nor is this a difficult task in the case of those rights which have determinate material things as their objects. A servitude or other jus in re aliena over a piece of land is situated in law where the land is situated in fact. A right over a chattel is movable property, and where the chattel goes the right goes also. But where there is no material object at all, what are we to say as to the local situation of the right? Where is a debt situated, or a share, in a company, or the benefit of a contract, or a copyright? Such questions can be determined only by more or less arbitrary rules based upon analogy, and it is to be regretted that it has been thought needful to ask and answer them at all. As the law stands, however, it contains several rules based on the assumption that all property which exists must exist somewhere,[[419]] and for the application of these rules the determination of the local situation of rights is necessary, even though it leads into the region of legal fictions. “The legal conception of property,” says Lord Lindley,[[420]] “appears to me to involve the legal conception of existence somewhere.... To talk of property as existing nowhere is to use language which to me is unintelligible.”
The leading principle as to the local situation of rights is that they are situated where they are exercised and enjoyed. Rights over material things, therefore, have the same situation as those things themselves. The good-will of a business is situated in the place where the business is carried on.[[421]] Debts are in general situated in the place where the debtor resides,[[422]] since it is there that the creditor must go to get his money.[[423]]
§ 156. Real and Personal Property.
Derived from and closely connected with the distinction between immovable and movable property is that between real and personal property. These are two cross divisions of the whole sphere of proprietary rights. Real property and immovable property form intersecting circles which are very nearly though not quite coincident. The law of real property is almost equivalent to the law of land, while the law of personal property is all but identical with the law of movables. The partial failure of coincidence is due not to any logical distinction, but to the accidental course of legal development; and to this extent the distinction between real and personal property is purely arbitrary and possesses no scientific basis. Real property comprises all rights over land, with such additions and exceptions as the law has seen fit to establish. All other proprietary rights, whether in rem or in personam, pertain to the law of personal property.
The distinction between real and personal property has no logical connexion with that between real and personal rights. There is, however, an historical relation between them, inasmuch as they are both derived from the same source, namely the Roman distinction between actions in rem and actions in personam. Real property meant originally that which was recoverable in a real action, while personal property was that which was recoverable in a personal action, and this English distinction between real and personal actions was derived by Bracton and the other founders of our law from the actiones in rem and in personam of Justinian, though not without important modifications of the Roman doctrine.[[424]]
In connexion with the distinctions between movable and immovable, and between real and personal property, we must notice the legal significance of the term chattel. This word has apparently three different meanings in English law:—
1. A movable physical object; for example, a horse, a book, or a shilling, as contrasted with a piece of land.
2. Movable property, whether corporeal or incorporeal; that is to say, chattels in the first sense together with all proprietary rights except those which are classed as immovable. In this usage debts, shares, contracts, and other choses in action are chattels, no less than furniture or stock in trade. So also are patents, copyrights, and other rights in rem which are not rights over land. This double use of the word chattel to indicate both material things and rights is simply an application, within the sphere of movable property, of the metonymy which is the source of the distinction between corporeal and incorporeal property.