§ 120. Vestitive Facts.
We have seen in a former chapter that every right involves a title or source from which it is derived. The title is the de facto antecedent, of which the right is the de jure consequent. If the law confers a right upon one man which it does not confer upon another, the reason is that certain facts are true of him which are not true of the other, and these facts are the title of the right. Whether a right is inborn or acquired, a title is equally requisite. The title to a debt consists in a contract, or a judgment, or other such transaction; but the title to life, liberty, or reputation consists in nothing more than in being born with the nature of a human being. Some rights the law gives to a man on his first appearance in the world; the others he must acquire for himself, for the most part not without labour and difficulty. But neither in the one case nor in the other can there be any right without a basis of fact in which it has its root and from which it proceeds.
Titles are of two kinds, being either original or derivative. The former are those which create a right de novo; the latter are those which transfer an already existing right to a new owner. The catching of fish is an original title of the right of ownership, whereas the purchase of them is a derivative title. The right acquired by the fisherman is newly created; it did not formerly exist in any one. But that which is acquired by the purchaser is in legal theory identical with that which is lost by the vendor. It is an old right transferred, not a new one created. Yet in each case the fact which vests the right is equally a title, in the sense already explained. For the essence of a title is not that it determines the creation of rights de novo, but that it determines the acquisition of rights new or old.
As the facts confer rights, so they take them away. All rights are perishable and transient. Some are of feeble vitality, and easily killed by any adverse influence, the bond between them and their owners being fragile and easily severed. Others are vigorous and hardy, capable of enduring and surviving much. But there is not one of them that is exempt from possible extinction and loss. The first and greatest of all is that which a man has in his own life; yet even this the law will deny to him who has himself denied it to others.
The facts which thus cause the loss of rights may be called, after Bentham, divestitive facts. This term, indeed, has never been received into the accepted nomenclature of the law, but there seems no better substitute available. The facts which confer rights received from Bentham the corresponding name of investitive facts. The term already used by us, namely title, is commonly more convenient, however, and has the merit of being well established in the law.[[302]] As a generic term to include both investitive and divestitive facts the expression vestitive fact may be permissible.[[303]] Such a fact is one which determines, positively or negatively, the vesting of a right in its owner.
We have seen that titles are of two kinds, being either original or derivative. In like manner divestitive facts are either extinctive or alienative. The former are those which divest a right by destroying it. The latter divest a right by transferring it to some other owner. The receipt of payment is divestitive of the right of the creditor; so also is the act of the creditor in selling the debt to a third person; but in the former case the divestitive fact is extinctive, while in the latter it is alienative.
It is plain that derivative titles and alienative facts are not two different classes of facts, but are merely the same facts looked at from two different points of view.[[304]] The transfer of a right is an event which has a double aspect. It is the acquisition of a right by the transferee, and the loss of it by the transferor. The vestitive fact, if considered with reference to the transferee, is a derivative title, while from the point of view of the transferor it is an alienative fact. Purchase is a derivative title, but sale is an alienative fact; yet they are merely two different sides of the same event.
These distinctions and divisions are exhibited in the following Table:
| Vestitive Facts | Investitive Facts or Titles. | Original Titles. | Creation of Rights. |
| Derivative Titles. } | Transfer of Rights. | ||
| Divestitive Facts. | Alienative Facts. } | ||
| Extinctive Facts. | Destruction of Rights. |
These different classes of vestitive facts correspond to the three chief events in the life history of a right, namely, its creation, its extinction, and its transfer. By an original title a right comes first into existence, being created ex nihilo; by an extinctive fact it is wholly destroyed; by derivative titles and alienative facts, on the other hand—these being, as we have seen, the same facts viewed from different sides—the existence of the right is in no way affected. The transfer of a right does not in legal theory affect its personal identity; it is the same right as before, though it has now a different owner.[[305]]