so-called "legal (common-law) title" of a constructive trustee with the "legal title" of an owner who is free from any trust. Clearly the "legal ownership" of the former is largely illusory, while that of the latter is quite the opposite. The truth of the situation appears when, calling to our aid the eight fundamental conceptions, we examine the situation in detail. We then discover, for example, that while the common-law court recognizes that the constructive trustee is privileged to do certain things-e. g., destroy the property in question, or sell it, etc.-in equity he is under a duty not to do so. In other words, there is an "exclusively equitable" duty which conflicts with and so nullifies each one of the "legal" (common-law) privileges of the constructive trustee.25

26

Careful consideration leads, therefore, to the conclusion that an "exclusively common-law" relation, i. e., one which only the courts of common law will recognize as valid, is as a matter of genuine substantive law a legal nullity, for there will always be found some other "exclusively equitable" relation which prevents its enforcement. Thus, to take another concrete example, a tenant for life without impeachment of waste has a common-law privilege to denude the estate of ornamental and shade trees, but in equity is under a duty not to do so. As privilege and duty are "jural opposites," the "equity law" turns out to be exactly contrary to the "common-law law." As equity has the last word, it follows that the "common-law privilege" is purely illusory as a matter of genuine substantive law.2 The reader who wishes to pursue the analysis through a large number of concrete examples will find ample material in the essay under discussion. Limitations of space forbid more detailed treatment here. All genuine substantive-law relations therefore fall into two classes: (1) those recognized as valid by both courts of common law and courts of equity; (2) those recognized as valid exclusively by equity. The former we may call "concurrent," the latter, "exclusive." The word "concurrent" is perhaps open to criticism. When Hohfeld called a legal relation "concurrent" he did not mean to assert that it will as such necessarily receive direct "enforcement" in equity as well as at law. Equity may "concur" in recognizing the validity of a given relation either actively or passively-actively, by giving equitable remedies to vindicate it; passively, by refusing to prevent its enforce

"And so of the major portion of the other legal relations supposed to be vested in the "constructive trustee." Some of the relations are, however, "concurrent," for example, the power to convey a "title" free from the trust to a bona fide purchaser for value.

26

But not as a matter of procedural law. The "common-law courts" will treat the "exclusively common-law" legal relations as though they were valid. In a code state this means at most that the facts giving rise to the paramount "exclusive," i. e. exclusively equitable, relations must be pleaded affirmatively as "equitable counterclaims" and not as mere "defences."

ment in a court of common law. Consider, for example, the right of an owner and possessor of land that others shall not trespass upon it. So long as the common-law action for damages is adequate, equity gives no direct aid; but, on the other hand, equity does not prevent the recovery of damages at law for the trespass. Just as soon as damages are inadequate, however, equitable remedies may be invoked. A right of this kind may fairly be called "concurrent" and not merely "legal" (common-law).

The matter may perhaps be put shortly as follows: what are commonly called "legal" or common-law rights (and other legal relations) really consist of two classes: (1) those which are in conflict with paramount exclusively equitable relations, and so are really illusory; (2) those which do not so conflict and are therefore valid. The latter are "concurrent."

Legal relations which are recognized as valid by equity but not by common law are common enough in our system and are, of course, valid. They may properly be called "exclusive," i. e., exclusively equitable. It may here be noted that it has happened over and over again that given legal relations were at first "exclusive" but that after a time, because of changes in the common law, they became "concurrent." This, for example, is true of the rights, etc., of the assignee of an ordinary common-law chose in action.27 While originally the assignee's interest was "exclusive," he acquires to-day not the "legal title" to the chose in action, but an aggregate of legal relations which are "concurrent," just as were those of the assignor before the assignment.28

Be it noted this classification of really valid legal relations into those which are "concurrent" and those which are "exclusive," applies equally to all the fundamental relations—rights, privileges, powers, and immunities and their correlatives. To take a simple concrete example: At one period of our legal development the assignor of a chose in action seems to have had an "exclusively common-law" (and therefore, as a matter of substantive law, invalid) power to release the debtor, even after notice from the assignee. In equity. however, at the same period, such a release was not recognized as valid, i. e., the assignee had, after notice to the debtor of the assign

"See the present writer's discussion of The Alienability of Choses in Action in (1916) 29 HARV. L. REV. 816 and (1917) 30 HARV. L. REV. 449, in which the history of the assignee's "rights" is set forth.

28 In his criticisms of my discussion of the "rights" of an assignee of a chose in action, Professor Williston-partly, it is believed because of a failure to appreciate fully the significance of the concept of "concurrent❞ legal relationshas misapprehended and so unconsciously misstated my position. This is true even in his final article. His discussions will be found in (1916) 30 HARV. L. REV. 97 and (1918) 31 HARV. L. Rev. 822.

ment, an "exclusive" (exclusively equitable) immunity from having the legal relations which the assignment vested in him divested by acts of the assignor. The assignor was at the same time under an "exclusive" duty not to execute such a "release," although he had an "exclusively common-law" (but really invalid) privilege to do So. At a later period these relations became "concurrent"; for example, the "exclusive" immunity became "concurrent," so that a release by the assignor after notice to the debtor of the assignment was inoperative both at law and in equity.29

The present writer has been teaching equity to law students for some eighteen years. During the past few years he has made greater and greater use of Hohfeld's analysis of the relations of law and equity, as well as of the more fundamental legal conceptions, and has found it of the greatest utility in class-room discussion and statement of the actual system of law under which we live. The terms "concurrent" and "exclusive" may possibly be open to criticism. It may, for example, be thought that "concurrent" savors too much of activity and does not sufficiently suggest passive concurrence in the validity of a given relation. Thus far, however, no better terms have suggested themselves, or have been suggested by others, and as it is difficult to use concepts without names, those suggested by Hohfeld have been used with success. The important thing, after all, is to enable the student and the lawyer to formulate general statements which enable us to give an accurate picture of our legal system and to discuss our legal problems intelligently. In the doing of these things the conceptions denoted respectively by the terms "concurrent" and "exclusive" seem to the present writer an indispensable aid.

In the space at hand it is not possible even to summarize the contents of the other essays enumerated in the list of Hohfeld's writings. Of those which have not been discussed, the most important are the articles upon the Individual Liability of Stockholders in the ninth and tenth volumes of the COLUMBIA LAW REVIEW. In the first of these will be found first of all an intelligible theory of what a corporation really is-intelligible, that is, to those readers who will take the trouble to think the matter through with Hohfeld in the terms of the fundamental legal conceptions which he uses, but absolutely unintelligible to those who will not. The current theory of a corporation as a "juristic person" disappears under the relentless logic of Hohfeld's analysis, and we see how the recognition of the fact that the only "persons" are human beings does not prevent us from adequately describing all the legal phenomena which accompany so-called "corporate existence." In the second of the two essays in question will be found a valuable contribution to the theory of the conflict of

"For citation of cases, see the articles cited in note 27, supra.

laws a field in which Hohfeld had planned and hoped to write extensively. Undoubtedly, too, his studies in the conflict of laws led him to see more clearly than ever the necessity for a careful analysis of fundamental conceptions, and the confusion which exists in that field, especially as to the nature of law and its territorial operation, furnished him with an abundance of material which stimulated a naturally keen interest along analytical lines.

The address upon a Vital School of Jurisprudence and Law, delivered before the Association of American Law Schools in 1914, was a summons to the law schools of the country to awake and do their full duty in the way of training men, not merely for the business of earning a living by "practicing law," but also for the larger duties of the profession, so that they may play their part as judges, as legislators, as members of administrative commissions, and finally as citizens, in so shaping and adjusting our law that it will be a living, vital thing, growing with society and adjusting itself to the mores of the times. The programme thus outlined he lived to see adopted substantially as that of the school with which he was connected but, alas! he was not spared to see it carried out in any large measure. That it may become the ideal of every university law school worthy of the name, is devoutly to be wished. Granted that it is an ideal-a "counsel of perfection," as the dean of one large law school was heard to remark upon the occasion of its delivery—is that a reason why we of the law schools should not come as near to reaching it as we can? If to-day it is still a substance of things hoped for rather than of things attained, shall we not labor the harder, that in the days to come achievement may not fall so far short of aspiration?

"Hohfeld is an idealist," "a theorist"-these and similar remarks the present writer has heard all too often from the lips of supposedly "practical" men. Granted; but after all ideals are what move the world; and no one recognized more clearly than did Hohfeld that "theory" which will not work in practice is not sound theory. "It is theoretically correct but will not work in practice" is a common but erroneous statement. If a theory is "theoretically correct" it will work; if it will not work, it is "theoretically incorrect." Upon these propositions Hohfeld's work was based; by these he would have it tested. "Theory," to which he devoted his life, was to him a means to an end-the solution of legal problems and the development of our law so as to meet the human needs which are the sole reasons for its existence. In the opinion of the present writer, no more "practical" legal work was ever done than which is found in the pages of Hohfeld's writings, and it is as such that the attempt has here been made to outline the more fundamental portions of it, in the hope that it may thus be brought to the attention of a wider circle of readers.

CONDITIONS IN THE LAW OF CONTRACT1

ARTHUR L. CORBIN

Professor of Law, Yale University

In order to understand any legal system it is necessary to consider the purely physical facts of life apart from the legal relations that are consequent upon such facts. Legal relations are merely mental concepts which are useful in enabling us to foresee the physical facts of the future. Disregarding the multitudes of facts that have no effect whatever upon existing legal relations, those that remain-the operative facts-must be considered and classified. In any case, the best method of procedure is to consider each operative fact separately, and in chronological order, and to determine the legal relations that exist after such single fact.

Thus: Fact one: A says to B, "If you will agree to pay me $100 for this horse you may have him and you may indicate your agreement by taking him." This is a physical fact, called an offer, consisting of certain muscular acts of A (his spoken words) producing certain physical effects in B. The legal relations immediately following are (in part) as follows: B now has the privilege of taking the horse and A has no-right that he shall not; B has the power of making the horse his own by taking him, with the correlative liability in A to the loss of his ownership; no new rights or duties are created and no new immunities or disabilities; by giving B a privilege and a power, A has lost a previous right and a previous immunity.

Fact two: B says to A, "How old is the horse?" This fact operates to create no new legal relations whatever. The operative legal effect of fact one is still intact.

Fact three: A, knowing the horse to be 12 years old, replies, "6 years." This false representation changes the character of B's power by adding to it; he still has the power to make the horse his own by accepting the offer, but now his acceptance will create in addition the power to "rescind" on discovery of the fraud.

Fact four: B takes possession of the horse. This is the fact called acceptance. It operates at once to create in B all those multitudinous legal relations that are called "ownership" or "title" and to extinguish the ownership of A; also to create a right in A as against B and the correlative duty in B to pay $100. Because of fact three, B also has the power to restore the legal status quo by tendering the horse back.

'Certain parts of this article were prepared for the writer's edition of Anson on Contracts, soon to be published by the Oxford University Press.