Real Rights and Personal Rights
(1) The Procedural Background: Real Actions and
Personal Actions
The Romanjurists often said that, in such-and-such circumstances, one person ‘had an action' against another, in other words that, in the circumstances of the case, the law gave the former a legal remedy against the latter.
To put it another way, to say that a person has an action is to say that that person has a right that will be recognised by the court as enforceable. In terms of historical development, though, this puts things the wrong way round. As we saw in Chapter 3,[794] legal develÂopment begins with the procedures of the law and the remedies that they provide, with the rights underlying those procedures and remedies only being articulated later. We tend in modern law to talk about rights. In particular, we recognise a distinction between real rights and personal rights. These, though, developed from a procedural distinction. Accordingly, before talking about the rights, we need first to consider that procedural distinction.We saw in Chapter 2[795] that, in classical law and earlier, litigation proceeded on the basis of more or less set forms of action, by which the judge was directed to try the issue between the parties. The law laid down a number of these, into which the claim had to be fitted. One way of classifying these was into real actions and personal actions. An example of a real action (from the Latin res, meaning a thing),[796] [797] under the formulary system, is the following: If it appears that the property this action concerns belongs to Aulus Agerius by Quiritary law, and that property is not restored, then let the judge condemn Numerius Negidius to Aulus Agerius for whatever that property is worth. If it does not so appear, let him be absolved. This is the form of action known as the rei vindicatio, the claim for recovery of an item of property by a person claiming to own it. By contrast, personal actions asserted a relationship with some specific person. For example: If it appears that Numerius Negidius ought to pay Aulus Agerius 100, then let the judge condemn Numerius Negidius to Aulus Agerius for 100. Otherwise, let him be absolved. Here a direct relationship is asserted between Aulus Agerius and Numerius Negidius. It is claimed that Numerius Negidius, personally, is subject to a specific obligation to pay the stated sum. A personal action arises from the law of obliÂgations, in which it is claimed that the party against whom the action is raised, and that party specifically, ‘ought to give or do something'.[799] A personal action is therefore more restricted in its scope. It is only available against someone who, it is claimed, owes some specific obligation to the claimant. (2) Real Rights and Personal Rights From this distinction arises a distinction between two kinds of right: real rights and personal rights. A claimant who has a personal action is said to have a perÂsonal right, which may be defined as ‘a legal tie, by which we are bound to the necessity of making some performance'.[800] A personal right is a right to enforce a duty owed by some other person, and is enforceable only against that other person. Appius owns a house. He enters into a contract to sell it to Marcus. As we shall see in Chapter 11,[801] [802] certain further acts are necessary before Marcus actually becomes owner of the house. Until those acts are carried out, Appius remains owner, even though Marcus is entitled under the contract of sale to become owner. Suppose that, before ownership is transferred to Marcus, Appius gets a better offer from Cornelia, and transfers the house to her instead. Where does this leave MarÂcus? His contractual right to become owner is only a personal right, enforceable against Appius but not against Cornelia. Accordingly, Marcus has no claim to the house itself, and no remedy against Cornelia. Marcus is limited to a claim against Appius for a breach of their contract. This principle was applied in Burnett’s Trustee v Graiiiger,' in which the court made express reference to it as being derived from Roman law. In that case, the Graingers agreed to buy a house from Burnett. They paid the price and took posÂsession. However, they (or rather their solicitors) failed to register the transfer of ownership in the appropriate register, which in Scots law is an essential step in the transfer of land. They therefore had a personal right against Burnett, but not yet any real right in the property. Burnett then became insolvent, and (in accordance with the relevant procedure) a trustee was appointed to realise the value of her assets and use that value to make payment towards her debts. The relevant legÂislation allowed the trustee to take ownership of property belonging to Burnett, so the trustee registered as owner of the house. The House of Lords held that, as the Graingers had not yet registered, they were not owners. Their right being only personal, it could not be enforced against the trustee. Most rights that the law recognises are personal rights, enforceable against some specific person or persons. Thus, if I enter into a contract with you, I can enforce that contract against you but not against some other person. If you injure me or my property by your wrongful acts, my remedy is against you personally rather than against someone else. This makes sense, as you are the one who injured me. In any case, though, this limitation arises from the nature of the proÂcedure used, as the procedural form asserts a relationship between us personally. Likewise, if I claim that you have breached our contract by giving to someone else some item of property that you were supposed to give to me, the procedural form that is used asserts a relationship with you rather than with the property. From this characteristic of the procedure used there arises what we now know as personal rights, and this characteristic persists even after the formulary system of procedure has been abandoned.[803] As we saw above, though, certain rights were protected by actions known as real actions. Instead of asserting a relationship with another person, a real action asserts a relationship with a particular item of property. These rights are known as real rights. This category includes most importantly ownership, but also certain other rights such as praedial servitude[804] and usufruct.[805] If I claim to be owner of an item of property, I am asserting a relationship between myself and the property itself, rather than simply between me and the person who took it from me. It follows from this that an owner of property can normally recover it from anyone into whose hands it comes, regardless of how that person acquired it. Suppose that Flavia is owner of a necklace. She lends it to Aurelia, who then dies with the necklace in her custody. Quintus, Aurelia's heir, finds the necklace in Aurelia's house and assumes that it was hers. Quintus takes possession of the necklace and sells it to Tullia. Normally the holder of a real right cannot lose that right through the actions of a third party without his or her consent. To lose the right in those circumÂstances would be inconsistent with the idea that a real right is enforceable against anybody. Those exceptions to this principle that exist tend to involve the holder of the real right having given prior authority to the third party,[807] or else the authority of the court or some other public authority.[808] This distinction between real and personal rights has been highly influential, and is one of the most distinctive characteristics of systems of property law that are based on Roman law.[809] This is certainly true in Scots law, in which the examples given in this section would have the same outcome.[810] C.