Characteristics of a legal right

Characteristics of a legal right

According to Salmond every legal right has the following characteristics:

i) The person of inherence: or the person in whom the right inheres or resides. He is the owner of the right, the subject of the right or the person entitled.

ii) The person of incidence: or the person on whom the corresponding duty is imposed. He is the subject of the duty.

iii) The content of the right: or the act or omission which the duty-bound person ought to do in favour of the person entitled to the right.

iv) The object of the right: or the thing which is the subject matter of the right, and

v) The title of the right: or the source of the right.

The application of the above ingredients may be verified with the help of an example. A buys a piece of land from B.  A is the person of inherence or the owner of the right so acquired.  The incidence of the correlative duty is not only on B but on all persons in general because this is a case of rights in rem.  The content of the right consists of non-interference with the purchaser’s exclusive use of the land.  The object of the right is the land.  Lastly, the title of the right is the conveyance by which the right was acquired by the purchaser.

Thus a right involves a three fold relation in which owner of a right stands:

i) It is a right against some person.

ii) It is a right to some act or omission of that person

iii) It is a right over or to something to which that act or omission relates.

Every right has an owner: Regarding the ownership of a right, it may be stated that law does not recognise ownerless right.  However the following qualifications of this proposition must be kept in view.

  1. Ownership need not be in praesenti but may be contingent or uncertain.
  2. The Owner may be an indeterminate person.
  3. He may be a person who is not yet born. The Transfer of Property Act, however requires that for transfers to unborn persons to be valid an intermediary estate in favour of a person in case must be created.

 

Every right has an object: Holland observes that in the case of some rights there may not be any object.  He gives an illustration to substantiate his view.  B is A’s servant. Here A is the person of inherence, B is the person of incidence, reasonable service is the act to which A is entitled.  The object of right is wanting.  Holland appears to have come to the conclusion because he considers that the object of a right must be a material thing.  But as Paton points out the term ‘res’ is very wide and covers much more than material things.  Salmond also observes that there cannot be a right without an object.  The object or the thing may be material or immaterial.  In Holland’s illustration, the object of the master’s right is the skill of the servant.  Thus objects may encompass a variety of things.  Salmond classifies rights in relation to their objects as follows:

  1. Rights over material things: These cover typical objects like land, house etc.
  2. Rights in respect of one’s own person: As a right not to be killed has his life as its object. Similarly, right no to be physically injured, bodily health is the object; right not to be imprisoned unjustifiably, personal liberty is the object.
  3. Right of Reputation: The right of a person not to be defamed has his reputation as its object.
  4. Right in respect of Domestic Relations: A husband’s right in respect of his wife, or a father’s right in respect of his children has as its object the society, affections and security of his family.
  5. Right in respect of other rights: Sometimes a right has another right as its object. This is also called jus ad rem. If A and B enter into a contract to sell, A’s present right is to acquire the right of ownership on a future date.
  6. Rights over immaterial property: Examples of these are patent rights, copy rights, trade marks and commercial goodwill. In the case of a patent right, the object is an invention i.e., the idea of a new process, instrument etc.
  7. Right to services: The object of the right of a master in respect of his servant is the latter’s skill. So also in the case of doctor-patient, lawyer-client and employer-workman relationships.  It is the skill, expertise or knowledge which forms the object of the right.

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