REAL RIGHTS AND PERSONAL RIGHTS
One of the things that are most characteristic of a legal system based on Roman law is the distinction between real rights (including ownership) and personal rights. In short, the distinction is this: a personal right is enforceable only against a particular person or particular persons; a real right is enforceable against anyone.
Thus, if I own a horse which is then stolen (ownership being a real right), I will be able to recover the horse from anyone into whose hands it comes. This is the case even if that person has no knowledge of the theft. On the other hand, if I have merely agreed to buy the horse from you, as we shall see in Chapter 5 I do not acquire ownership until the property has been conveyed to me. Until that point I have only a personal right, arising from my contract with you. On the basis of that personal right, I can compel you to deliver the horse to me. However, if you sell to a third party, I will not be able to compel that third party to deliver the property to me. The reason for this is that my right, being a personal right only, is enforceable only against the other party to the obligation (i.e. you).The distinction between real and personal rights arises from a distinction made in the law of actions between real actions (actiones in rem) and personal actions (actiones in personam). In a real action, the party bringing the action (the actor, or “pursuer” in modern Scots terminology) is asserting a relationship with the property that is the subject matter of the litigation, namely that he owns it. In a personal action, the actor is asserting a relationship with another party, namely the other party to the action. Of this type is the condictio, the basic personal action. In the condictio, the actor claimed that he was owed a debt of some kind by the other party. From this distinction arises the idea that a personal action can be brought only against the other party to the obligation concerned, whereas a real action could be brought against any person acting in such a way as to deny the actor’s title to the property.
Only a limited number of real rights were recognised by the law. The remainder of this chapter considers the most important of these.
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