Law and You> Jurisprudence > Kinds of Legal Rights
The noun right has different meanings resulting in the ambiguity of its exact meaning. In jurisprudence, we find a bitter discussion and disputes about the exact meaning of the term “Right”. In general, we discover a particular action is right by checking whether it is consonant with the general legal, social, and ethical principles. In the religious context, the action to be right should be consonant with moral principles as guided by religion. Legal rights are the common claims of people which every cultured society recognizes as essential claims for their development, and which are therefore enforced by the state. In this article, we shall study kinds of legal rights.
Kinds of Legal Rights:
Perfect and Imperfect Rights:
Perfect Rights:
A perfect right means a right that can be legally enforced and which has a correlative duty attached to it. According to Salmond, “A perfect right is one which corresponds to the perfect duty. A perfect duty is one which is not merely recognized by law but also enforced by law.” Generally, when the law recognizes a right, it prescribes a remedy also; and when the right is violated, it enforces it through the physical force of the State. Examples: All fundamental rights, viz. the right to equality, right to religion, etc. are perfect rights as these are enforceable by law.
Imperfect Rights:
An imperfect right is that right which although recognized by law is not enforceable by it. Imperfect rights remain valid for all purposes except that of enforcement. Example: the claims barred by time. In such cases, the limitation does not extinguish the right but bars the remedy only. The claim is valid in other respects, but it cannot be enforced. Such cases may be considered as an exception to the doctrine Ubi jus ibi remedium.
Example: A right of X to recover money from Y on the promissory note is a legal perfect right. It is enforceable by law. If Y refuses to pay and X fails to sue him in the prescribed time period (as prescribed by the Limitation Law, the right becomes an imperfect right because it cannot be enforced by the law.
According to Salmond imperfect rights are recognized by law on the following grounds:-
- An imperfect right may be good as a ground of defence, though not as a ground of action.
- An imperfect right is sufficient to support any security that has been given for it e.g. a mortgage or pledge remains perfectly valid, though the debt for which it was given as security has become barred and unenforceable under the Limitation Act.
- An imperfect right may possess the capacity of becoming a perfect right. The debt which has become barred and unenforceable under the Limitation Act is imperfect right but it can become perfect right if subsequent promise to pay the amount is made.
To give financial support to Public Service Institution is an imperfect duty. To give donations to such institutions is not mandatory. Mr. ‘X’ issues a cheque of donation to such one institution which is dishonoured. Now, ‘X’s imperfect duty gets converted into a perfect duty and is liable for punishment.
Distinguishing Between Perfect Rights and Imperfect Rights:
| Perfect Rights | Imperfect Rights |
| According to Salmond, “A perfect right is one which corresponds to the perfect duty. | According to Salmond an imperfect right is that right which although recognized by law is not enforceable by it due to is defects in form or some other defects. |
| A perfect right is an enforceable law. | An imperfect right is not enforceable by law. |
| All perfect rights are recognized by law | All imperfect rights are not recognized by law. |
| A perfect right possesses both the remedy and the right | There is a limitation on remedy and not on right. |
| Perfect duty is associated with the perfect right. A perfect duty is one which a person not merely ought to perform but is justly compelled to perform. | No duty is associated with an imperfect right. The imperfect duty is a duty of such a nature that it is not fit for enforcement, but ought properly to be left to the free will of him whose duty it is. |
| Perfect right and duty pertains to the sphere of justice | The imperfect right and duties pertain to that of kindness. |
| Paying one’s debts is a perfect duty. Conversely, it is a perfect right conferred to the creditor. | The duty to give alms to poor people is an imperfect duty but not enforceable. |
| Example: A promissory note duly executed is a perfect right in favour of the creditor and a perfect duty of the debtor. | A time-barred promissory note is not enforceable by law. It is an imperfect right of the creditor and the imperfect duty of the debtor. |
Primary (Antecedent) and Sanctioning (Remedial) Rights:
Primary and sanctioning rights are two kinds of civil rights. The object of civil proceedings is the enforcement of the right of the plaintiff. The right so enforced is either primary or sanctioning.
Primary Right:
Primary rights are the privileges enjoyed by any person, e.g. a person’s right to liberty, safety, and reputation. Thus the right not to be libeled is a primary right. Primary rights are also called antecedent rights or principal rights.
Sanctioning Right:
A sanctioning right is one that arises out of the violation of the other rights. All the other rights are primary rights. A sanctioning right is also called remedial right or adjectival right The right to obtain compensation from one who has libeled is a sanctioning right.
Example: If X and Y enter into a contract that X would supply 100 laptops to Y. Now to receive 100 laptops in good condition from X is a primary right of Y. If X breaches the contract, then Y can sue X for breach of contract. Thus to recover damages from X is Y’s sanctioning right.
The purpose of the sanctioning right can be a penal action which means the imposition of a pecuniary penalty upon the defendant for the wrong committed by him. Penal action does not mean penal prosecution. It means a civil action in which the defendant is made to pay a penalty. The defendant has to pay much more than what he has gained by his wrongful conduct.
In Parr’s Bank v. Yates (1898) 2 QB 460 case, the Court observed that the right to debt is a principal right, whereas the right to interest is an accessory right. Therefore, if the creditor’s right to recover the principal amount is lost, he cannot recover the interest either.
Distinguishing between Primary Rights and Sanctioning Rights:
| Primary Rights | Sanctioning Rights |
| A primary rights are the privileges enjoyed by any person. | A sanctioning right is one that arises out of the violation of the other rights. |
| They have an independent existence | They don’t have an independent existence |
| A violation of breach of the primary rights gives rise to a sanctioning right or remedial right. | Sanctioning rights come into existence after the violation of primary rights. |
| The enforcement of a primary right is called specific enforcement. | According to Salmond, the enforcement of a sanctioning right is sectional enforcement. |
| The primary right can be either a right in rem or a right in personam. | The sanctioning right is always right in personam. |
| The primary right may be positive right or negative right. | The sanctioning right is always positive |
| Example: The right not to be libeled is a primary right. | Example: The right to obtain compensation from one who has libeled is a sanctioning right. |
Positive and Negative Rights:
The basis of distinguishing right as positive or negative is the nature of correlative duty it carries with it.
Positive Rights:
Positive’ rights are those rights that require the action of others. Thus a positive right corresponds to a positive duty and is a right that he on whom the duty lies shall do some positive act on the behalf of the person entitled. i.e. a positive right entitles its owner to have something done for him without the performance of which his enjoyment of the right is imperfect and incomplete. Thus the scope of a positive right is to receive a positive benefit. Example: A child has a Right to Life, so his/her parent should buy him/her food because the child needs food to live. So it is a positive right of the child. The satisfaction of positive rights results in the betterment of the position of the beneficiary. Similarly, if X buys Fruits from Y. Then Y has a positive right to get the cost of the fruit from X.
Negative Rights:
A negative right corresponds to a negative duty, and is a right that the person bound shall refrain from (shall not do) some act which would operate to the prejudice of the person entitled. Thus a ‘negative’ right is one that forbids an action. Negative rights have negative duties corresponding to them and enjoyment is complete unless interference takes place. The majority of negative rights are against the world. The scope of a negative right is that the person having the right shall not be harmed. Example: A person has a Right to Life, so nobody should kill him. Thus not to be killed by others is a negative right. In the case of negative rights, the position of the beneficiary is merely maintained as it is. Similarly, if X hires Y for his firm and asks Y not to join any of his competitors for the next two years after leaving the job. Then it is a negative right of X.
It should be noted that negative rights are far greater in number than positive rights because negative rights are against the world.
Distinguishing Between Positive Rights and Negative Rights:
| Positive Right | Negative Right |
| It corresponds to a positive duty i.e. the person has to perform some positive duty to fulfill this right. | It corresponds to negative duty i.e. the person is prohibited to perform some acts. |
| It refers to a positive act. | It represents forbearance or non-doing. |
| It entitles the owner to an alteration of the present position to his advantage. | It maintains the present position of things. |
| Its aim is to have a positive benefit. | Its aim is not to be harmed. |
| It is a right to receive something more than one already has. | It is a right to retain what one already has. |
| It requires the active assistance of other persons. | It requires only a passive acquiescence of other persons. |
| There is a mediate and indirect relation to the other. | There is an immediate relation to the other. |
| Most personal rights are positive rights | All real rights are negative rights |
| Example: A child has a Right to Life, so his/her parent should buy him/her food because the child needs food to live. So it is a positive right of the child. | Example: A person has a Right to Life, so nobody should kill him. Thus not being killed by others is a negative right. |
Real and Personal Rights:
A personal right corresponds to a duty imposed upon determinate individuals. A personal right is available only against a particular person. They are rights in personam. Most of them are positive although in a few exceptional cases they are negative. A real right is available against the whole world. All of them are negative. They are right in rem
Example: Not to be get defamed is X’s real right. Note that it is a negative right and it is against the world. If Y defames X then it is X’s personal right to sue Y in the law of court is a personal right. Note that it is against an individual (in some cases against a group of persons)
| Real Rights | Personal Rights |
| A real right is available against the whole world. | A personal right corresponds to a duty imposed upon determinate individuals (a single person or group of persons). |
| They are right in rem | They are rights in personam. |
| All of them are negative. | Most of them are positive although in a few exceptional cases they are negative. |
| Not to be get defamed is X’s real right because it is available against the whole world. | If Y defames X, then to sue Y for defamation is a personal right of X |
Right in Rem and Right in Personam:
Right in Rem:
A right in rem is available against the world at large. it is a right available against persons generally. Right in rem is almost always negative. It is a right to be left alone. It is a right that people should not interfere with anyone’s ownership. Rights in rem are known as real rights. They may relate to tangible or non-tangible things. Examples: the right to property (tangible thing), the right not to be defamed (intangible) and not to be assaulted. The number of rights in rem possessed by a person is countless.
Right in Personam:
A right in personam is available only against a determinate person or persons, corresponds to a duty imposed on determinate individuals. These rights are personal to both of them (the plaintiff and the defendant). Outsiders are not concerned with them. Right in personam is usually positive. It is acquired because the subject stands in some special relationship towards another person as in the case of a contract. Right in personam may also be negative as in the case of sale of goodwill. Right in personam as a personal right. Examples of right in personam are the right to receive compensation for false imprisonment or defamation; or the right to recover a debt from the person who owes me the money. Rights of parties involved in a contract.
Distinguishing between Rights in Rem and Rights in Personam:
| Rights in Rem | Rights in Personam |
| A right in rem is available against the world at large. | A right in personam is available only against a determinate person or persons, corresponds to a duty imposed on determinate individuals. |
| They are available against an open or indefinite class of persons. | They are available against a specific person or persons. |
| Rights in rem are almost always negative. It is a right to be left alone. It is a right that people should not interfere with my ownership. | Rights in personam are usually positive. It is acquired because the subject stands in some special relationship towards another person as in the case of a contract. |
| It is a real right | It is a personal right |
| Rights in rem are said, though incorrectly, to be rights in expect of things, because the persons of incidence being indefinite, there is a greater emphasis on the thing or object of the right. | Right in personam is spoken of as personal rights because persons bound being determinate, personal relations are stressed. In fact, both classes of rights imply the person of incidence as well as object. |
| The freedoms given in Article 19 of the Constitution of India are the rights in rem. | All easements are the rights in personam. |
| All general offers are right in rem | all specific offers are rem in personam. |
| Example: Right of enjoyment of property. | Example: the right to receive back debt given to another. |
Proprietary and Personal Rights:
Proprietary Rights:
Proprietary right means a person’s right in relation to his own property, estate, assets, or other monetary benefits. Example: the right of a person over his/her house, furniture, car, etc. They have some economic or monetary values. They are the elements of a wealth of man. They possess both judicial and economic importance. They are transferable. Corresponding to the proprietary right is a proprietary duty, such as to pay the debt, the duty not to infringe someone else’s copyright, etc.
Personal Rights:
Personal rights are rights relating to the status. According to Paton, ‘personal rights’ can be defined only as the residuary rights which remain after proprietary rights have been subtracted’. Examples: freedom of speech, freedom of expression, and freedom of choosing a profession, etc. Personal rights are merely elements of his well-being. They possess only judicial importance. They are not transferable. Corresponding to the personal right is a personal duty such as an obligation not to harm somebody’s reputation.
Normally personal rights are not valuable, but some personal rights like the right of reputation are valuable.
Distinguishing between Proprietary Rights and Personal Rights:
| Proprietary Rights | Personal Rights |
| Proprietary right means a person’s right in relation to his own property, estate, assets, or other monetary benefits. | Personal rights are rights relating to status and affection. According to Paton, ‘personal rights’ can be defined only as the residuary rights which remain after proprietary rights have been subtracted’. |
| They have some economic or monetary values. | They possess only judicial importance. |
| They are the elements of a wealth of man. | They are merely elements of his well-being and welfare. |
| They are transferable. | They are non-transferable. |
| Proprietary rights are inheritable | Personal rights are uninheritable |
| Corresponding to the proprietary right is a proprietary duty, such as to pay the debt, the duty not to infringe someone else’s copyright, etc. | Corresponding to the personal right is a personal duty such as an obligation not to harm somebody’s reputation. |
| Examples: the right of a person over his/her house, furniture, car, etc. | Examples: freedom of speech, freedom of expression, and freedom of choosing a profession, etc. |
Heritable and Inheritable Rights:
Inheritable Rights:
A right is inheritable if it survives its owners. Proprietary rights are inheritable. Thus the right of property, estate, car, land, furniture, etc. is inheritable and survives its owner.
Uninheritable Rights:
Uninheritable rights die with the owner. Personal rights are uninheritable. Right of freedom of speech, freedom of expression, and freedom of choosing a profession, etc. are inheritable rights.
Rights in Re Propria and Rights in Re Aliena:
Rights in Re Propria:
It means a right in one’s thing or one’s own property. They are complete rights to which other rights can be attached. Example: If X is the owner of the house then he has the right in re propria over that house. Other examples are the right over one’s own land, the right to draw water from one’s own well, etc.
Rights in Re Aliena:
It means a right in the things of others. They derogate from the rights of others add to the right of their holder. Example: If X is the owner of the house and leases it to Y for some time. Now X is the owner of the house but temporarily Y is temporarily occupier of the house. X has the right to claim the house back. This right of a temporary detachment of ownership of house of X is known as right in re aliena. Other examples are the right of way over another person’s land, the right to draw water from another person’s well, etc.
According to Salmond a right in re aliena or encumbrance is one which limits or derogates from some more general right belonging to some other person in respect of some subject matter. All other rights are rights in re propria.
A right in re aliena is also called ‘encumbrance’. A right subject to an encumbrance is called ‘servient’. A right that limits the encumbrance is called dominant. For example, A is the owner of a certain house has a right of way over B’s land. A’s house is dominant heritage and A is the dominant owner. B’s land is the servient heritage and B is the servient owner. Even when the servient heritage is sold off, the dominant owner does not lose his right. He can enforce his right against the new owner. Encumbrance can be further classified into leases, servitudes, securities, and trusts.
Principal and Accessory Rights:
Principal Rights:
Principal right is having ownership, possession, title on the land or building. It exists independently of other rights.
Accessory Rights:
The word accessory indicates it is a secondary or subordinate right arising out of some primary right. Accessorium sequitur means that the accessory right follows the principal right. accessory rights are belonging to others and they have a beneficial effect on principal rights. For example, a person can own a farmyard. To own a property (farm) is his primary right. To utilize the yield of the farm is his accessory right. Note that the accessory right is derived from the primary right. The easement annexed with land and easement rights are accessory rights.
In Parr’s Bank v. Yates (1898) 2 QB 460 case, the Court observed that the right to debt is a principal right, whereas the right to interest is an accessory right. Therefore, if the creditor’s right to recover the principal amount is lost, he cannot recover the interest either.
Legal and Equitable Rights:
Legal rights were recognized by common law courts and equitable rights were recognized by the court of chancery. In England, the Judicature Act, 1873 put an end to the distinction between these two. Both kinds are recognized by all courts, but they differ in their practical effects, the method of their creation, and disposition.
Distinguishing between Legal Rights and Equitable Rights:
| Legal Rights | Equitable Rights |
| Legal rights are recognized by the Courts of Common Law of England. | Equitable rights are recognized by the Courts of Chancery. |
| These are certain rights | These are uncertain rights. |
| Where legal and equitable rights conflict, legal rights prevail | Where legal and equitable rights conflict, equitable rights become weaker compared to legal rights. |
| A registered mortgage is a legal mortgage. | A mortgage of property by simply keeping the title deeds with the creditor is an equitable mortgage. |
Public and Private Rights:
Public Rights:
A public right is possessed by every member of the public. When one of the persons connected with the right is the State and the other is a private person, the right is called a public right.
Private Right:
A private right is concerned with individuals. Both parties connected with this right are private persons.
Servient and Dominant Rights:
A servient right is one that is subject to an encumbrance. The encumbrance which derogates from it may be contrasted as dominant. Easements are helpful for providing pathways across two or more pieces of property, allowing individuals to access other properties or a resource, for example, to fish in a privately owned pond or to have access to a public beach. An easement is considered as a property right in itself at common law and is still treated as a type of property in most jurisdictions.
For example, the owner of parcel A holds an easement to use a driveway on parcel B to gain access to A’s house. Here, parcel A is the dominant estate, receiving the benefit, and Parcel B is the servient estate, granting the benefit or suffering the burden.
Vested and Contingent Rights:
Vested Rights:
A vested right creates immediate interest. It is transferable and heritable. A vested right is not defeated by the death of the transferee before he obtains possession. The property passes to his heirs. The transferee owns the right absolutely.
Contingent Rights:
A contingent right does not create immediate interest and it can be defeated when the required facts have not occurred. The contingent right is defeated by the death of the transferee before he obtains possession. The transferee owns it merely conditionally.
Distinguishing between Vested Rights and Contingent Rights:
| Vested Rights | Contingent Rights |
| A vested right creates immediate interest. | A contingent right does not create immediate interest and it can be defeated when the required facts have not occurred. |
| It is perfect right ab initio. | A contingent right becomes perfect, only a certain condition is fulfilled mentioned in the contract. |
| A vested right is not defeated by the death of the transferee before he obtains possession. The property passes to his heirs. Thus vested right is heritable. | A contingent right is defeated by the death of the transferee before he obtains possession. Thus it is not inheritable. |
| A vested right is attachable under Section 60 of the Code of Civil Procedure because of certainty. | A contingent right is not attachable due to its uncertainty. |
| The transferee owns vested right absolutely. | The transferee owns contingent right conditionally. |
Municipal and International Rights:
Municipal rights are conferred by the law of a country. They are enjoyed by individuals living in a country. International rights are conferred by international law. Some scholars say that only the states are the subject of international law while other view individuals are also the subject of international law.
General Rights and Special Rights:
The concept of general and special rights was introduced by H. L. A. Hart in 1955.
General Rights:
According to Hart, general rights are rights, which are possessed equally by all members of society. For example, the right to vote in elections, right to enter a public park are available to all eligible members of society.
The difference between a right in rem and a general right is that a right in rem is one that is available against the whole world, whereas, general right is a right that is possessed equally by all members of society. Thus rights in rem are negative rights and general rights are positive rights.
Special Rights:
Special rights are those arising out of special transactions between specific individuals or from special relationships between them. For example, contractual rights, right to alimony, diplomatic immunity, etc.
Conclusion:
Rights are regarded as central to civilization, being observed as established pillars of society and culture. Legal rights are the common claims of people which every cultured society recognizes as essential claims for their development, and which are therefore enforced by the state. Thus legal rights are those rights that are conferred by the state on the individuals and also impose certain duties that have to be performed by the individuals. It is enforceable by the state as it is an interest recognized and protected by rules of justice. It is classified into various kinds according to the nature of the rights.