The beneficiaries of dead men.
1. Ab intestato.
2. Ex testamento.
The limits of testamentary power.
CHAPTER XXI.
THE LAW OF OBLIGATIONS.
§ 165. The Nature of Obligations.
Obligation in its popular sense is merely a synonym for duty. Its legal sense, derived from Roman law, differs from this in several respects. In the first place, obligations are merely one class of duties, namely those which are the correlatives of rights in personam. An obligation is the vinculum juris, or bond of legal necessity, which binds together two or more determinate individuals.[[452]] It includes, for example, the duty to pay a debt, to perform a contract, or to pay damages for a tort, but not the duty to refrain from interference with the person, property, or reputation of others. Secondly, the term obligation is in law the name not merely of the duty, but also of the correlative right. It denotes the legal relation or vinculum juris in its entirety, including the right of the one party, no less than the liability of the other. Looked at from the point of view of the person entitled, an obligation is a right; looked at from the point of view of the person bound, it is a duty. We may say either that the creditor acquires, owns, or transfers an obligation, or that the debtor has incurred or been released from one. Thirdly and lastly, all obligations pertain to the sphere of proprietary rights. They form part of the estate of him who is entitled to them. Rights which relate to a person’s status, such as those created by marriage, are not obligations, even though they are rights in personam. An obligation, therefore, may be defined as a proprietary right in personam or a duty which corresponds to such a right.
The person entitled to the benefit of an obligatio was in Roman law termed creditor, while he who was bound by it was called debitor. We may venture to use the corresponding English terms creditor and debtor in an equally wide sense. We shall speak of every obligation, of whatever nature, as vested in or belonging to a creditor, and availing against a debtor. There is, of course, a narrower sense, in which these terms are applicable only to those obligations which constitute debts; that is to say, obligations to pay a definite or liquidated sum of money.
A technical synonym for obligation is chose in action or thing in action. A chose in action means, in our modern use of it, a proprietary right in personam; for example, a debt, a share in a joint-stock company, money in the public funds, or a claim for damages for a tort. A non-proprietary right in personam, such as that which arises from a contract to marry, or from the contract of marriage, is no more a chose in action in English law than it is an obligatio in Roman law.
Choses in action are opposed to choses in possession, though the latter term has all but fallen out of use. The true nature of the distinction thus expressed has been the subject of much discussion. At the present day, if any logical validity at all is to be ascribed to it, it must be identified with that between real and personal rights, that is to say, with the Roman distinction between dominium and obligatio. A chose in action is a proprietary right in personam. All other proprietary rights (including such objects of rights as are identified with the rights themselves) are choses in possession. If we regard the matter historically, however, it becomes clear that this is not the original meaning of the distinction. In its origin a chose in possession was any thing or right which was accompanied by possession; while a chose in action was any thing or right of which the claimant had no possession, but which he must obtain, if need be, by way of an action at law. Money in a man’s purse was a thing in possession; money due to him by a debtor was a thing in action. This distinction was largely, though not wholly, coincident with that between real and personal rights, for real rights are commonly possessed as well as owned, while personal rights are commonly owned but not possessed. This coincidence, however, was not complete. A chattel, for example, stolen from its owner was reduced, so far as he was concerned, to a thing in action; but his right of ownership was not thereby reduced to a mere obligatio.[[453]]