Judicial ExamJurisprudenceLegal Notes

PCS (J) Notes: Jurisprudence, Legal Rights and Duties

 

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CHAPTER 3 LEGAL RIGHTS

Ch. 3-1 Legal Rights and Duties :

Rights are concerned with ‘interests’. Rights are defined as interests protected by moral or legal rules. But yet rights are different from interests. Interests are things which are to a man’s advantage. Eg. He has interest in his freedom or his reputation. If we say that a person has an interest in his reputation, what we mean is, that he stands to advantage of good name in the society, But, if we say that the person has a right to his reputation what we mean is, that others should not take this from him.

Duties:

A duty is an act which one ought to do. Not doing of, amounts to a ‘wrong’. A duty may be moral or legal.

It is a legal duty not to sell adulterated milk. If a person is curious, about his neighbours, there is no legal duty not to be so curious, this is a moral duty and therefore cannot be enforced through the courts.

Legal Rights : Characteristics ;

According to Salmond every legal right has the following basic characteristics:

  1. It is vested in a person, that person may be called the owner of it, or the subject of i.e, the person entitled. E.g. A buys a house from B. A is the owner of the house acquired.
  2. It avails against a person. It is on that other person that a corresponding duty is imposed. That person may be called the person bound, or as the person of incidence. E.g. A is the owner of the house. All others are bound by duty not to interfere etc.
  3. Right obliges the person bound, to an act or omission in favour of the person This is the content of the right E.g. others not to interfere with the enjoyment of the house property, by A.
  4. The act or omission relates to a It is called as the object or subject matter of the right. E.g. land, house, goods etc.
  5. Every legal right has a This means certain facts or events by reason of which the right has become vested in the owner E.g. The sale deed executed by vendor B, in favour of A (the vendee). Title vests in A.

A buys goods from B. A becomes the subject or the owner of the goods so acquired. The person, bound by the duty are the persons in general (against the world i.e., right in Rem).

The content of the right is non-interference with the enjoyment of goods. The object or the subject matter is the house. The title of the right is the conveyance or sale deed by which A has acquired from B.

An ownerless right does not exist and is not recoginsed by law.

Legal rights in a wider sense:

In a wider sense the legal rights do not necessarily correspond with duties. Here a rule of law confers a benefit or advantage over a person. There are four classes of rights.

  1. Rights in a strict
  2. Liberties
  3. Powers
  4. Immunities

Each of the above has corresponding :

  1. Duties
  2. No Rights
  3. Abilities
  4. Disabilities

1.       Rights and duties:

Legal right in the ‘strict sense’ has all the 5 characteristics, and bears a corresponding legal duty. Right to reputation, right to landed property, right to service under a contract etc. These form the bulk of the rights in the legal world, there are corresponding duties on others.

2.       Liberties and no rights:

Legal liberty is a benefit which a person derives without legal duty on others. A is at liberty to express his opinions on public affairs. But A has ‘no liberty’ to publish a defamatory matter. A may defend himself against violence but he has ‘no right’ to take revenge upon B who has injured him.

  1. Powers and liabilities:

The power to make a ‘Will, or the power of appointment of an executor. The powers vested in the judges to discharge their functions. These powers have no corresponding duties on others.

But, it may be noted that liability may be correlative of power. e.g. i) An unfaithful spouse may be divorced, ii) Right or power to marry.

iii) Tenant under liability, as tenancy may be terminated by re – entry of owner.

4.       Immunities and disabilities:

It is an exemption, i.e., non-subjection e.g. immunity from ordinary criminal courts given to ambassadors. Therefore an immunity creates no disabilities. Disability is the absence of power. He who has no title cannot pass a title. This is a disability of the transferor. A Minor is under a legal disability to be a party to a contract.

Kinds of Legal Rights:

Ch. 3-2 Perfect and Imperfect rights:

A perfect right is one which corresponds to a perfect duty (The duty is recoginsed by law and is enforceable) Eg. Breach of contract. The right is protected and can be enforced by suing for compensation or for specific performance.

Imperfect right is one which is recoginsed by law but is not enforceable. E.g. Time barred debts. Such a right to recover exists but not through the courts. It may be noted that an imperfect right is a good defense: e.g. when time barred debt is paid by debtor, the creditor may defend his position. An imperfect right may be a sufficient security, E.g. Pledge or mortgage, though the debt is barred still the property remains a security. Further an imperfect right may have the capacity to become perfect eg. acknowledgment of a debt barred by limitation.

Rights against State, are considered imperfect though they are legal rights. In one sense, they are not enforceable against the State, as the State is the strength of it. From lawyer’s view, they are enforceable against the State.

Ch. 3-3 Positive and Negative rights:

A positive right corresponds to the positive duty under which the person should do some positive act. A has a right not to be pushed into water, if pushed into water there is a negative duty on others to pull A out of water.

A negative right corresponds to a negative duty; The right gives a benefit; Acts & Omissions belong to this group.

Ch. 3-4 Rights in Rem and right in personam:

Right in rem is a real right available against the world at large. A has a right in rem to the peaceful enjoyment of his property i.e., no-body should interfere. Right in personam is a personal right available against a particular person or persons. If A leases out his house his right to receive the rent, is the right against the tenant only. The right of C, a creditor to receive the loan amount from the debtor B, is a right in personam.

Ch. 3-5 Rights in Re-propria and rights in Re-aliena:

Right in re-propria means right over one’s own property; title, ownership etc. Right in re-aliena means right of a person over the property of another. Eg. tenants rights encumbrance right etc. A right in re-aliena is an encumbrance on the property imposing restrictions on the owner. Eg. Mortgage or charge.

In respect of a right in re-aliena, there is an encumbrance, but the ownership and other rights are vested in the owner.

The right of a tenant or a mortgagee in possession of the property etc. are rights in-aliena. However, the ownership remains with the owner who has the rights in re-propria.

Hence, all encumbrances, are rights in re-aliena: Leases, servitudes, securities and trusts.

In respect of bailor and bailee, the right of the bailee is right in re-aliena but the bailor has rights in re-propria.

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