CHAP. XI. order to show that this right is not a right to immunity from a perversion of one's will by means of a fraudulent representation 1.

1 Supra, p. 170. It is submitted that not only are trade-mark cases, so far as the proprietor of the mark is concerned, mistakenly said to turn upon fraud, but that a similar error has been made in such cases as Collins v. Evans, 5 Q. B. 830, and Butterly v. Vyse, 2 H. and C. 42. In the former of these, a person who misinformed a sheriff's officer as to the ownership of goods, whereby they were wrongfully taken in distress, was held liable for the deceit ' to their owner. In the latter, a builder was allowed to get damages for the deceit’against a person who had fraudulently prevented an architect from granting a certificate, which was necessary to enable the plaintiff to be paid for his work.

CHAPTER XII.

PRIVATE LAW: RIGHTS 'IN PERSONAM.'

method

WE have now arrived at a point when our method parts The company with that of the Roman jurists and their followers. adopted. Adopting as the radical distinction of rights that which depends upon the restricted or unrestricted character of the person of incidence, they oppose to rights in rem' the topic of 'Obligations,' under which one term are included all rights 'in personam,' whether prior to wrong-doing or arising out of it.

We have ventured to pursue a different course. Our radical distinction of rights turns upon their existing or not existing antecedently to wrong-doing. Reserving all rights of the latter kind for separate treatment, we are now engaged in the examination of antecedent rights only, and having dealt with such of those rights as avail'in rem' against the whole world, have next to describe such of them as avail'in personam' against ascertained individuals 1.

It will be readily understood that our 'antecedent rights in personam' will correspond to the 'obligationes ex contractu'

1 Supra, pp. 122, 141.

CHAP. XII. and 'quasi ex contractu' of Roman law, while the Roman law of obligationes ex delicto' and 'quasi ex delicto,' and of obligations arising from breach of contract, for which last there exists no technical Latin name, will correspond to the rights which we call 'remedial.'

The conception of

Although we propose to distinguish thus broadly between Obligation. topics which are more usually grouped together under the head of Obligations,' we are none the less able to make full use of the admirable analysis of the ideas conveyed by that term, which has been so potent a factor in the history of legal speculation. Obligationum substantia,' says Paulus in a well-known passage, 'non in eo consistit ut aliquod corpus nostrum faciat, sed ut alium nobis obstringat ad dandum aliquid vel faciendum vel praestandum 1.' Still more familiar is the definition of 'obligatio' as 'iuris vinculum, quo necessitate adstringimur alicuius solvendae rei, secundum nostrae civitatis iura 2.' In the fuller language of Savigny, an obligation is 'the control over another person, yet not over this person in all respects (in which case his personality would be destroyed), but over single acts of his, which must be conceived of as subtracted from his free-will, and subjected to our will3;' or, according to Kant, 'the possession of the will of another, as a means of determining it, through my own, in accordance with the law of freedom, to a definite act. An obligation, as its etymology denotes, is a tie; whereby one person is bound to perform some act for the benefit of another. In some cases the two parties agree thus to be bound together, in other cases they are bound without their consent. In every case it is the Law which ties the knot, and its untying, 'solutio,' is competent only to the A natural same authority. There are cases in which a merely moral Obligation. duty, giving rise to what is called a 'natural,' as opposed to

1 Dig. xliv. 7. 3. pr.

2 Inst. iii. 13.

3 Obligationenrecht, i. p. 4. Obligations are considered by Bentham under the title 'Rights to Services.'

a 'civil,' obligation will incidentally receive legal recognition. CHAP. XII. So if a person who owes a debt pays it in ignorance that

it is barred by the statutes of limitation, he will not be allowed to recover it back.

The right which, looked at from the point of view of the Iura in Law which imposes it, is described as an obligation, is de- personam. scribed, from the point of view of the person of inherence, as a 'ius in personam.' The difference between a right of this kind and of the kind discussed in the preceding chapter is obvious enough.

When a man owns an estate, a general duty is laid upon all the world to refrain from trespassing on his land. If he contracts with a landscape gardener to keep his grounds in order for so much a year, then the gardener owes to the landowner a special duty, over and above the duty owed to him by all the world besides. If a surgeon is practising in a town, while there is a duty incumbent on all not to intimidate patients from resorting to him, or otherwise molest him in the exercise of his profession, there is no general duty not to compete for his practice. Any one may legally establish a rival surgery next door. Suppose, however, that the surgeon has bought his business from a predecessor, who, in consideration of being well paid, has covenanted not to practise within twenty miles of the town in question. Here the predecessor, beyond and above the duties owed by others to his successor, owes him the special duty of not competing with him by the exercise of his profession in the neighbourhood. In the cases supposed, the landowner and the practising surgeon have respectively rights 'in personam,' against the gardener and the retired surgeon, over and above the rights in rem' which they enjoy as against every one else.

various

ways.

Most frequently antecedent rights 'in personam' arise, as Arise in in the above cases, out of the agreement of the parties. They are however often due to some cause with which the parties have nothing to do. In these cases, although the person of incidence has not undertaken a special duty to the person of

had so undertaken it.

CHAP. XII. inherence, yet the Law casts that duty upon him, as if he There is a ligeance between two individuals, although the chain that binds them was not linked by their own hands. Every one has, for instance, a right that public ministerial officers, such as sheriffs, registrars, or postmen, shall exercise their functions for his benefit when occasions arise entitling him to their services. Similar rights 'in personam' are enjoyed against persons filling certain private fiduciary positions, such as trustees, executors, administrators, and trustees of bankrupts. So also against persons who happen to enter into certain transitory relations with others, such as persons to whom money has been paid by mistake, or persons whose affairs have been managed by a 'negotiorum gestor.' Finally, against persons who occupy certain family relationships to others, e. g. against wives and children, and vice versa against husbands and parents.

May be grouped under two

heads.

Ex lege.

Antecedent rights 'in personam' are divisible, according to the investitive fact to which they owe their origin, into two great classes. Such rights either arise or do not arise out of a contract. In the former case they are described as rights 'ex contractu.' In the latter case, since they arise from facts of various kinds to which it pleases the Law to affix similar results, we shall describe them as rights 'ex lege;' and it will be convenient to consider the rights which arise thus variously before treating of those which arise solely from contract1.

I. The rights which we describe as arising 'ex lege' were described by the Roman lawyers as arising 'quasi ex contractu,' and more simply, 'ex variis causarum figuris 2. We propose to subdivide them into four classes, which we shall

1 A distinction, which does not quite square with the above, is sometimes drawn between obligations which arise from certain positions, 'obligations d'états,' 'Zustandsobligationen,' and those which arise from certain acts, 'obligations d'affaires,' 'Geschäftsobligationen.'

2 Gaius, Dig. xliv. 7. 1. pr. Windscheid, Pandekten, endeavours to approximate them to contractual rights.