Classification of rights

Classification of legal rights

Stressing on different aspects, legal rights have been classified into different kinds. The following kinds of rights are of significance.

i) Perfect and Imperfect rights

ii) Positive and Negative Rights

iii) Rights in rem and Rights in personam

iv) Proprietary and personal rights

v) Rights in repropria and rights in realiena

vi) Principal and Accessory Rights

vii) Legal and Equitable rights

viii) Primary and Secondary rights.

ix) Public and private rights

x) Vested and contingent rights

xi) Municipal and International rights

xii) Rights in rest and rights in motion

xiii) Ordinary and Fundamental rights

xiv) Real and Personal rights.

i) Perfect and Imperfect Rights:

A perfect right is one which corresponds to a perfect duty. A duty is perfect when it is not only recognized by the law but is apt to be enforced by the courts.  Ought, in the mouth of law, commonly means must.  If law says A ought to do a thing, it really means A must do it, or else, law will make him do it.

There are rights and duties recognised but not enforced by law.  Such rights are called imperfect rights.  They are exceptions to the maxim ubi jus ibi remedium.  For example, debts barred by lapse of time.  The statute of limitation does not provide that, after a certain time, the right to a debt shall become extinct, it merely says no action shall thereafter lie for its recovery.  Here lapse of time does not destroy the right, but merely bars enforcement, and therefore makes the right imperfect.

An imperfect right may be a good ground for a defence.  For example, if some money of the debtor comes lawfully to the hands of creditor he may appropriate the same under Sec.60 of Contract Act towards the barred debt and successfully defend any claim for its recovery by the old debtor.

An imperfect right is sufficient to support any security that has been given for it. For example, even after a debt is barred by limitation, the mortgagee can hold the mortgaged property in his possession till he is actually paid off.

An imperfect right can sometimes be made perfect.  For example, A bond which is defective  in stamp-duty and hence unenforceable, can be made enforceable by paying the prescribed penalty therefor.

An important class of imperfect rights is said to be rights against state. The impossibility of enforcement in the case of rights against the state has misled some jurists to hold that there can be no legal right against the state.  We have already seen that unenforceable rights are not to be ignored outright. They are useful for several legal purposes.  The rights against the State are now adjudicated by courts according to moral principles of law.

ii) Positive and Negative Rights:

Positive rights are those which correspond to positive duties.  A positive duty is the duty to do something i.e., to do some overt act in favour of other.  Negative right corresponds to a negative duty.  Negative duty is a duty to forbear from doing something. Positive duty connotes an act, negative duty connotes an omission.

When person is bound to do a particular act, his duty is positive, and when he omits to do that act, that omission is a negative wrong. Thus negative wrongs correspond to positive duties.  A positive duty, and its violation will be a negative wrong. A negative right corresponds to a negative duty and its violation will be a positive wrong.

Generally speaking, law inclines towards negative duties, it would enforce a positive duty only on special grounds such as contracts, conjugal relation.  Law does not generally command that one shall do an act for the benefit of another, but it strictly interdicts one to forbear from harming others.  One is forbidden from pushing another into the water, but one is seldom bound to pull another out of the water. Positive duties are mostly matters of contractual obligations, but they may arise otherwise also as in the case of a father’s duty to maintain his minor child.

iii) Rights in rem and Rights in personam:

A right in rem is one which is available against the world.  A right in personam is one which is available against  particular persons only. A right in rem corresponds to a duty imposed upon persons in general, a right in personam corresponds to a duty imposed upon a particular individuals.

The right of ownership of property is one which avails against the world at large.  Everybody else is under a duty not to interfere with the owner’s use and enjoyment of the property, hence it is a right in rem. On the other hand, a right to the return of a debt is one which avails against a particular person only, namely, the debtor – he alone is under a duty to respect that right of the creditor, hence it is a right in personam.  Right to reputation is a right in rem, right to damages for defamation is a right in personam.

The distinction between rights in rem and rights in personam bears close connection with that between positive rights and negative rights.  All rights in rem are negative, and most rights in personam are positive.

A right in rem can be nothing more than a right to be left alone – to be undisturbed by anybody. Rights in personam on the other hand are generally the result of some special relation between the person entitled and the person bound, the latter being thereby under an obligation to do some act in favour of the former. Hence as a rule rights in personam are positive.

But there can be right in personam which are of a negativae character.  eg. On the sale of a commercial good will, the vendor is under a duty not to compete with the vendee in the identical business.  The corresponding right of the vendee to an exemption from competition in trade is a right in personam, and is a negative right.

State’s right to collect tax from all its citizens is not a right in rem.  It is not one right in the state as against all the citizens; it is a collection of as many rights as there are individual taxpayers.  The State’s right to a tax of Rs.50/- from A is different from its right to a tax of Rs.100/- from B.  These rights are different because their objects are different.  Each individual is under a duty to pay his tax only.

In the case of right in rem, it must be the same interest that avails against one and all.  eg. the right of reputation.  It is one interest asserted against the generality of people.  It is not one reputation  protected against A, and another against B, but it is one and the same as against all.

A right in rem is otherwise termed as real right.  it is also called a jus in rem.  Likewise, a right in personam is called a personal right or jus in personam.  Jus means thing.  Literally therefore, jus in rem means a right in respect of a thing, jus personam is a right in respect of a person.

In fact every right is a right in respect of a thing (namely the object of the right) and a right  in respect of a person (namely the person bound). Hence every right is real as well as personal in a literal sense.  But when a right is available against all persons without distinction the personal aspect of such a right is directly related to the thing.  In the case of a personal right, it is available against a particular person only. So, a right in which the prominent idea is the thing is named a right in rem, and a right in which the personal aspect is conspicuous is named a right in personam.

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 of 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 rights vested in him as against the defendant.

Naturally enough, the right protected by an actio in rem came to be called jus in rem, and a right protected by an action in personam as jus in personam.

The term ‘jus ad rem’ literally means right to a thing.  Right to a thing in contradistinction with a right in a thing, suggests that in the former case the thing belongs to another.  ‘Jus ad rem’ therefore denotes a right to have that other’s right in the thing.  It is therefore a right to a right.  A right to get a right which is vested in another can only be a personal right. Hence ‘jus ad rem’ is a species of ‘jus in personam’.

iv) Proprietary and Personal rights:

Proprietary rights are those which constitute a man’s property or wealth.  Any right that has an economic value is included in this category eg. rights in land, movables, debts due, benefits of a contract, commercial good will, patent rights, copyrights.

Rights which have no economic value are termed personal rights.  They relate to one’s personal condition or status eg. conjugal rights, parental rights, rights of reputation, citizenship, personal liberty.

Proprietary rights have both economic and juridical significance, while the personal rights have only a juridical significance. According to Salmond, if a right is valuable, that is to say, worth a money equivalent, it is proprietary, if not it is personal.

Some jurists are of opinion that the true test of a proprietary right ought to be the alienability. Proprietary rights are alienable, but personal rights are inalienable. ( eg. parent rights and conjugal rights).  Ordinarily this is so but there are several proprietary rights which are inalienable eg. right to maintenance, right to pension.

Violation of a personal right may give rise to proprietary rights.  Right to reputation is a personal right, but the sanctioning right that arises on its violation is a proprietary right to damages.

Personal right in this classification should not be confused with personal right as opposed to real rights.  They denote two different classes altogether.  A proprietary right may be real (eg. right of ownership over land) or personal (right to a debt).  Similarly, a personal right may also be real (eg. right to reputation) or personal (eg. conjugal rights)

Proprietary rights constitute a person’s wealth, whereas personal rights relate to a person’s well being.  Proprietary rights are usually inheritable, personal rights are not usually inheritable.

v) Rights in repropria and rights in realiena:

Proprietary rights may be either in one’s own property (eg. right of ownership) or over another’s property (eg. right of mortgagee).  Rights over one’s own property are termed as rights in repropria; Rights over another’s property are called rights in realiena.

It often happens that the rights of a person over his property become subject or subordinate to a right vested in another person.  Thus the right of a land owner may be subject to, and limited by a right of way of the neighbour.  The owner’s right in such a case is not in its full scope.  It has to make room for the superior right that is vested in the other person.  This later right is a right in realiena, an encumbrance.  The general right which is subject to an encumbrance is therefore referred to as the servient, while the encumbrance is called as the dominant right.

A servient right need not necessarily be one of full ownership.  An encumbrance may become subject to another encumbrance. A tenant may sublet, a lessee may grant a lease of his leasehold, a mortgagee may grant a sub mortgage.  The lease or mortgage will then be a dominant right in respect of ownership of the land, but a servient right in respect of the sub-lease or sub-mortgage.

When the servient right changes hands the encumbrance may follow it in the hands of new owners.  A change of owners may not free the ownership from the encumbrance imposed upon it.  Whoever takes the ownership shall then take it subject to the encumbrance.  The encumbrance is then laid to run with the right encumbered.

vi) Principal and Accessory rights:

One right may affect another right either adversely or beneficially.  It is adverse when one right is limited by another vested in a different person.  It is beneficial when one right has added to it a supplementary right vested in the same person eg. the owner of the Whiteacre may have a right to way to it over the adjoining compound Blackacre.  Here the right of way over Balckacre is an addition to the right of ownership of whiteacre.

Similarly, a right to a debt due from A may be supplemented by a guarantee for payment by B.  Thus the right which is supplementary to another right is called an Accessory right, and the right to which it is attached is called the Principal right.

vii) Legal and Equitable right:

This division is peculiar to English law.  Certain rights which had no recognition at common law, came to be recognised and protected by the courts of Equity.  Rights protected by the courts of law were termed legal rights, and rights protected by the courts of Equity were termed as equitable rights.

The right of specific performance of a contract, the right to avoid a contract entered into by mistake or fraud, the right to redeem a mortgaged property etc. were equitable rights.  They had no recognition in the Courts of Common Law.  The Court of Common Law would only award damages.  Right to repayment of a debt, right to evict a lessee on termination of lease etc. were recognised by Court of Law and were therefore legal rights.

 

viii) Primary and Sanctioning rights:

We have already seen that a sanctioning right is one which arises as a sanction imposed by law on a wrongdoer for his wrong.  All others are primary rights. Sanctioning rights are termed by some writers as Remedial rights.  Primary rights as Antecedent rights.  eg.right to reputation is a primary right and right to damages for defamation is a sanctioning right.

ix) Public and Private Rights:

Rights vested in the State are generally termed as public rights, because the State holds them as the representative of the community or the public.  Private Rights are rights belonging to individuals.

The Right to vote in the election of representatives to public bodies is styled as a public right. A right which one exercises for his own benefit would then be a private right.  eg. ownership of a house.

x) Vested and Contingent Rights:

Another division of rights is the vested and contingent rights.  Every right is created by a title.  The title comes from the happening or not happening of a certain facts. Therefore, this happening or not happening of certain facts affects the nature of the right.  A right is a vested right when all the facts, happening and not happening of which it is necessary to vest the right, have occurred. If only some of such facts have occurred then the right is a contingent right.  It would become vested when all the facts have occurred.

A vested right creates an immediate interest.  It is transferable and inheritable. A contingent right does not create an immediate interest, and it can be defeated when the required facts have not occurred.

xi) Municipal and International Rights:

Municipal rights are conferred by the law of a country. International rights are conferred by International Law. All Municipal rights are enjoyed by the individuals living in a country.  The subjects of a International rights are the persons recognized as such by International Law.

There is no unanimity of opinion as to who are the persons recognized by International Law.  According to one view, only the States are the subjects of International Law.  According to another view individuals can also be the subjects of International Law.

xii) Rights in rest and Rights in motion:

This classification of rights had been given by Holland.  According to him, when a right is stated with reference to its ‘orbit’ and its ‘infringement’, it is a right at rest.  The meaning of the term ‘orbit’ is the sum or the extent of the advantages conferred by the enjoyment of the rights. The term infringement means an act which interferes with the enjoyment of these advantages.  Causes by which rights are either connected or disconnected with persons are discussed under rights in motion.

xiii) Ordinary and Fundamental Rights:

Some rights are ordinary rights and some are fundamental rights.  The Constitution of India has guaranteed certain fundamental rights to the citizens of India like the right to equality, right to life and liberty, right to freedom, right against exploitation, right to freedom of religion, cultural and educational rights and right to constitutional remedies.

Fundamental rights can be enforced by the Supreme Court under Art.32 or by High Courts under Art.226, whereas ordinary rights can be enforced under Article 226 and other provisions in procedural codes. Fundamental right cannot be abrogated by legislative action.  It can only be abrogated by constitutional amendment.  Ordinary right can be deprived by legislative act.  Fundamental right is guaranteed by the Constitution.  Ordinary right is conferred either by Constitution or by other enactments.

 

xiv) Real and Personal rights:

According to Salmond, 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 whole world.  A personal right is available only against a particular person.

My right to the possession and use of money in my purse is a real right.  However, my right to receive money from a person who owes me, is a personal right. According to Salmond, all real rights are negative and most personal rights are positive, although in a few exceptional cases they are negative. It is to be observed that real rights are rights in rem, but personal rights are rights in personam.

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