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.