CHAPTER V. PRIVATE RIGHTS RIGHTS AGAINST PERSONS. "A RIGHTS against persons are created by their own voluntary acts or omissions. The fact that one man possesses a right imposes on another a duty not to violate that right. violation of a legal right committed knowingly is a cause of action." If A. has entered into a contract with B., it is his duty to perform his part of it; if he does not do so, B. has a good cause of action against him for such breach of contract. Again, if A. violates any right possessed by B., or neglects his duty to B. in a way which causes B. damage, A. has committed an actionable wrong which lawyers call a tort, and for which B. can recover damages by way of compensation. These are civil obligations and are enforced by civil actions; neither a tort nor a breach of contract is, as a rule, a crime, though in some cases they may also give rise to criminal liability. 2 RIGHTS ARISING OUT OF CONTRACTS. A contract is a bargain which the State will enforce. (i.) that both parties should mean, and agree to, the same thing; (ii.) that each should, by word or conduct, inform the other that he or she does so agree. But the State is not, as a rule, content with these two essentials. It generally requires some additional element or formality before it will recognise the bargain as a binding contract. In some cases the State requires that the terms of the bargain should be stated in writing, or that the document should be stamped or registered somewhere, or that there should be some consideration for the promise. 1 Per Lord Macnaghten in Quinn v. Leathem, [1901] A. C. at p. 510. B.C.L. 3 The State requires these additional formalities for two reasons (i.) to distinguish the concluded bargain from preliminary haggling; (ii.) to preserve a clear record of the transaction. If these formalities be absent, the State will not enforce the bargain, which is then no contract. A contract, then, is an agreement enforceable at law between two parties, by which rights are acquired by one to acts or forbearances on the part of the other. It is founded on the consent of the parties; but it owes its obligatory force to the law. In every civilised country the law deems it for the wellbeing of the community that every man should fairly and honestly perform what he has undertaken to do. It therefore attaches binding force to any bargain made by competent persons which is not contrary to public policy, or impeachable on any moral ground. If it cannot compel the performance of such a contract, it will enforce compensation for its non-performance. The benefit of a contract can, as a rule, be assigned to a stranger without the consent of the party burdened by it. The burden of a contract cannot be assigned without the consent of the party entitled to the benefit of it, unless some benefit be assigned along with the burden. No one can sue on a contract, unless he is either an original party to it or the lawful assignee of an original party: though in a few cases a stranger to the contract may bring an action of tort if the contract was entered into with reference to him and he has been injured by its negligent performance. A contract may be put an end to by performance, or by a new contract, or by simple rescission, or release. The right to sue on a contract may be barred by lapse of time, or by the bankruptcy of the person liable. RIGHTS ARISING OUT OF TORTS. The State will compel a man who does a wrongful act to compensate all who are injured by it. Where there is no contract between the parties, such a wrongful act is called in law a tort, and the action by which the person wronged obtains compensation from the wrong-doer is called an action. of tort. Such an action will lie (i.) if the defendant has violated the plaintiff's right; or (ii.) if the defendant has neglected a duty which he owed to the plaintiff and so caused him damage. It is an injury to A. if B. violates his rights, although such violation has not involved A. in any pecuniary loss; hence any injury to A.'s property or person, or in most cases to his reputation, is actionable without proof of any pecuniary loss. But if B. neglects a duty which he owes to A., and such neglect in no way affects A.'s rights, it will only give A. a right of action if it causes him harm or loss. If B. neglects his duty, but no harm or loss ensues to any one, no one can sue. The right of the person injured to compensation does not, as a rule, depend on the motive or intention of the wrongdoer. The plaintiff need not prove that the defendant intended to injure him; he may have intended to injure somebody else, or to have injured nobody; but if he has in fact injured the plaintiff by a wrongful act, he must as a rule compensate him. No action will lie for harm or loss occasioned by a lawful act, even if it be done maliciously. No act which the law authorises is a tort. But every other act or omission is a tort if it infringes the right of another, or is a breach of a duty owed to that other which has caused that other damage, or is a breach of a duty owed to the public which has caused someone damage over and above that suffered by the rest of the public. An unsuccessful attempt to commit a tort is not a tort. A breach of contract, as a rule, is no tort. But for one man without lawful excuse to incite another to break his contract with a third person is a tort. CHOSES IN ACTION. The distinction between a right of ownership and a right against a person merely is very important. If A. lends B. 51. without security, he has no special rights over any portion of B.'s property; he has no interest in, or charge or lien on, or any right to seize, any land or any thing of B.'s. He has no claim on any particular five sovereigns. B. merely owes him 51.; and the value of that debt may be doubtful: it depends on B.'s solvency. In other words, A. has no jus in rem, no jus in re aliena; he has only a jus in personam. Again, if A. knocks B. down in the street, or flings a stone and breaks B.'s window, A. incurs liability to B. B. has a right to sue A. for damages. But till judgment and execution B. acquires no rights over A.'s property. Nevertheless such a right of action, whether founded on contract or in tort, is an asset of some value; and since the Judicature Act, 1873, it can be sold and assigned to a third person. It must therefore be regarded as a kind of property; and when so regarded it is called a "chose in action:" this is a Norman-French phrase which our ancestors employed to indicate a right to take proceedings in a court of law to recover a debt or damages. It was thus opposed to things in possession, which were tangible property, capable of being stolen or taken in execution under a judgment of the Court. A right of action to recover unliquidated damages was as much a chose in action. as a debt for a fixed amount. But in either case the right had to be vested; the mere possibility that A. might hereafter do or omit to do something which would give B. a cause of action against him was not a chose in action. The phrase "right of action" is used when the parties are contemplating immediate litigation; but when the right is regarded as a species of property, it is called a "chose in action." And there is this further distinction between the two terms. A. may owe B. money, but the time for repayment may not yet have arrived. This is a good debt, although it is one which is not yet payable. It is therefore a chose in action, although B. has not at present any right to sue for it.2 Originally, then, the term "chose in action" was applied 1 See Assignment of Contracts, post, pp. 773-775. 2 See Brice v. Bannister (1878), 3 Q. B. D. 569; West v. Newing (1900), 82 L. T. 260. 2 only to a debt, to a claim for damages, to any right to take proceedings either at law or in equity to obtain some other judicial relief, and to any document (such as a bond, bill, promissory note or agreement 1) which was mere evidence of such a right. It did not include any other incorporeal right of property; and of course it included no tangible personal property. In more modern times, however, there sprang up several species of incorporeal personal property, which were unknown to our ancestors, such as Consols, stocks, shares, debentures, patents and copyrights. All these probably for want of a better classification-were also called choses in action. A mortgagor's right of redemption, however, is not a chose in action but an equitable estate in the land mortgaged. We have so far described property as consisting of land or things, or rights in, to or over land or things, or rights against persons. And we have divided property into two classes, tangible and intangible; tangible property consisting of land and things: intangible, of the various rights just mentioned. Tangible property can obviously be sub-divided into two classes-moveable and immoveable property; things are moveable, while land is not. "No man, be he ever so feloniously disposed, can run away with an acre of land." 3 But our ancestors, whether laymen or lawyers, were eminently practical men, not scientific theorists; they looked at all these questions from the point of view, not of the nature of the property itself, but of the nature of the remedy which the owner would have if he were dispossessed of it. If a man were ousted from his land, he could claim to recover the fields themselves; he could bring what was called a real action, an action in rem. But if he were dispossessed of some thing, he could only claim damages from the trespasser or thief; he could only bring a personal action, an action personam. He could not in early times compel restitution in 1 R. v. Watts (1854), Dearsl. 326. There was formerly no such thing as an incorporeal chattel personal :" per Cotton, L. J., in Colonial Bank v. Whinney (1885), 30 Ch. D. at p. 275. Williams on Real Property, 12th ed., 1. |