§ 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.