Distinguish between of the followings, Perfect right and Imperfect right, Right in rem and Right in personam, Proprietary right and Personal right, Right in propria and right in aliena

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distinguish-perfect-right

Q. 6. Distinguish between of the followings:—

(i) Perfect right and Imperfect right,

(ii) Right in rem and Right in personam,

(iii) Proprietary right and Personal right,

(iv) Right in propria and right in aliena.

Ans. (i) Perfect right and Imperfect right–Rights may be either `perfect’ or ‘imperfect’, A perfect right is one which corresponds to a perfect duty. A duty is perfect when it is not only recognised by the law but ‘enforced’ by the courts. A duty is enforceable where some legal proceeding, civil or criminal, lies for its breach.

A perfect right is a right which has a correlative duty which can be legally enforced.

Imperfect rights are recognised but not enforced. The term ‘en-forceable’ means that a person may compel others to respect interest claim or that a person who is bound may be compelled to carry out what he has undertaken to do.

A legal right must be recognised but is not necessarily enforceable. When it is not enforceable it is imperfect right, e.g., time barred debt or a claim against a foreign Sovereign. A time barred debt is a claim though no longer enforceable but is still recognised as existing in law and may be revived by a subsequent written acknowledgment of it, even though no fresh consideration has been given, and thus an imperfect right may be made perfect,

Examples of Imperfect rights are.—(1) Debt barred by lapse of time. (2) Claims unenforceable on account of some legal defect, L e., the non-registration of a document whose registration is compulsory or a claim against foreign-sovereign, or a claim by an unregistered firm for more than Rs, 100/-

Imperfect rights are recognised by law on the following grounds:-

1. An imperfect right may be good as a ground of defence though not as a ground of action.

2. An imperfect right is sufficient to support any security that has been given for it.

3. An imperfect right may possess the capacity of becoming a perfect right.

(ii) Right in rem and Right in personam–A right in rem is a right which is available against the whole realm, that is to say, against all persons in the state. A right in personam is one which is available against a particular person only, A right in rem corresponds to a duty imposed upon person in general, a right in personam corresponds to duty imposed upon particular individuals. The right of ownership of a 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 employment of the prop-erty, hence it is a right in rem. On the other hand, a right to the return of debt is one which avails against a particular person only, namely, the debtor, he alone.is under a duty to respect the right of the creditor; hence it is a right in personam.

Distinction.—The distinction between right in rem and right in personam bears close connection with that between positive rights and negative rights. All rights in rem are negative, and most of the rights in personam are usually positive but negative only in exceptional circumstance. In the case of sale of goodwill when the seller undertakes not to set up a rival business within the prescribed area and duration, the pur-chaser acquires against the seller of goodwill a right of exemption from competition which is personam but negative.

“Right in rem,” Hohfeld says, “is one of a large class of fundamen-tally similar yet separate rights actual or potential residing in a single person or single group of persons but availing respectively against per-sons constituting a very large and indefinite class of people, while a right in personam is a unique right residing in a person (or group of persons) and availing against a single person (or group of persons); or else it is one of a few fundamentally similar yet separate rights availing respective against a few definite persons.”

But it is very difficult to draw a clear line of distinction between the right in rem and right in personam. The right of a beneficiary under a trust may not be conveniently put under the one head or the other. A beneficiary’s right is not a right in rem, because it is not availed against a bonafide purchaser for value without notice, and it is also not a right in personam against the trustee, because he has extensive power to follow the trust property. A beneficiary if he/she is a minor, has more protection of law and trustee will have to substantiate the legal necessity, if property of the trust is being disposed of.

(iii) Proprietary right and personal right—Salmond says that “the aggregate of man’s proprietary rights constitutes his estate, his assets or his property in one of the many senses of that most equivocal or legal terms. The sum total of a man’s personal rights, on the other hand, consti-tutes his status or personal condition, as opposed to his estate.”

Personal rights have no economic value, they relate to a person’s reputation or status. Similarly the rights of freedom and citizenship are his personal rights. Proprietary rights have economic value and juridical significance.

Proprietary rights are those rights which relate to one’s property and personal rights belong to his person. In other words, the former has a reference to the estate while the latter, in opposition to the former, consists in the status.

Some jurists distinguish between proprietary and personal rights by defining proprietary rights as alienable and personal rights as inalienable. But this does not fit in all cases, because certain proprietary rights e.g. right to maintenance, right to pension or lease restricted to the lessee personally are inalienable.

Proprietary rights are inheritable whereas personal rights are uninheritable. Personal rights die with the person concerned. However some personal rights, e.g. hereditary titles are heritable.

(iv) Rights in re propria and rights in re alina—According to Salmond, a right in re aliena or encumbrance is one which emits from some more general right belonging to some other person in respect of the same subject-matter. All other rights are rights in re propria. According to Salmond, the chief classes of encumbrances are four in number, viz. leases, servitudes, securities and trusts. He defines them as follows:

(i) A lease is the encumbrance of property vested in one man by a right to the possession and use of it vested in another,

(ii) A servitude is a right to the limited use of a piece of land unaccompanied either by ownership or by possession thereof. It may be positive such as a right of way over the neighbour’s field, or negative, e.g., prohibiting his neighbour from building in such a manner as to obstruct light and air to his house.

(iii) A security is an encumbrance vested in a creditor over the property of his debtor for securing the recovery of the debt and the possession of the goods or title deeds is given by the debtor to the creditor.

(iv) A trust is an encumbrance in which the ownership of property is limited by an equitable obligation to deal with it for the benefit of some one else, who is called the beneficiary. The owner of the encumbered property is the trustee, the owner of the encumbrance is the beneficiary.