773 

LECTURE XLVI.

ON CERTAIN DISTINCTIONS AMONG THINGS.

After distinguishing primary or principal from secondary or sanctioning rights and duties, I next proceed to subdivide the former division, or that of primary rights.

First great division of primary rights into rights in rem and in personam.

The first great distinction among primary rights has been very fully explained in a preceding part of this Course. I allude to the distinction between dominia and obligationes, as they were called by the classical jurists; between jura in rem and jura in personam, as they have been styled by modern Civilians. Or rather between jura in rem, jura in personam, and combinations of rights of the former class with rights of the latter. I introduce this third class to avoid the incongruities into which the Roman Lawyers were led, in the attempt to wrest all rights or collections of rights either into the class of dominia or into that of obligationes. Those collections of rights, for example, which are called universitates juris, or complex aggregates of rights, the Roman lawyers placed under dominia, or jura in rem; though it is evident that they commonly include along with rights availing against the world at large, other rights availing against certain and determinate persons.

A mistake of modern German jurists respecting the signification of jus rerum.

This seems not an improper occasion for adverting to the opinion current among the German jurists of the present day with respect to the arrangement of the Institutes.

According to the Civilians of the 17th and 18th centuries, the jus rerum relates to rights in personam as well as to rights in rem. It is the law or doctrine of substantive rights and obligations as opposed to the law of conditions or persons, and to the law of procedure. But, according to some later German Civilians, the signification of jus rerum is narrower. It means the law or doctrine of dominia, or rights in rem; of real rights: die Lehre der dinglichen Rechten. They distinguish the Law of Things from the Law of Persons, and also from the law of Obligations and of Actions; and in this division of the Corpus Juris, jura in personam belong to the head Jus Actionum, not to that of Jus Rerum. In the same head they would, if they were consistent, include the Law of Procedure; but they detach this, and place it as a separate head, under the name jus judiciarium privatum.

I will not trouble you with the reasons which they give for taking this view of the arrangement of the Institutes, nor with my reasons for thinking their opinion unfounded; the question 774being one which relates only to the particular legal system, and has nothing to do with the principles of general jurisprudence. I will merely observe, that their opinion seems to me to be contradicted by the announcement at the beginning of the Second Book of the Institutes, of the order intended to be followed in setting forth the jus rerum. In this announcement, things are divided into res corporales and res incorporales; these last being rights and duties (and therefore including obligationes, or jura im personam); then the work proceeds to treat of res incorporales, or rights and duties, under the two divisions of dominia and obligationes: all this under the head of jus rerum. I find also that the opinion of Savigny and of Thibaut concurs with mine; which, joined to the reasons which have occurred to myself, gives me great confidence in my opinion.

In the Prussian Code, Sachen-recht, or jus rerum, has a meaning still more remarkable. That Code divides the Corpus Juris, or that part of it which is called Privat-recht, or jus privatum (according to the erroneous distinction which I have before adverted to), into two branches, Personen-recht and Sachen-recht. Under the first head, Personen-recht, the law and its expositors naturally treat of rights of both classes, dominia and obligationes; but by Sachen-recht, they mean only the law of dominia, while at the same time they treat of obligationes incidentally, and as it, were in the belly of the opposite class, or that of dominia. This is owing to a mistake of the authors of the Prussian Code, which I have pointed out in my printed Tables, viz. their confounding titulus with modus acquirendi; and, supposing that a jus in personam was in all cases merely a step to the acquisition of a jus in rem. Now, though jus im personam is often only a step to acquiring a jus in rem (as in the case of a right by contract to the payment of a sum of money), in many cases it is not so (as in the case of a right by contract to a forbearance from a certain individual). In the French Code, whose authors adopted from the Prussian Code this very mistake, obligations are described in the same incidental manner.

Before I proceed to the detail of primary rights, I shall make a few observations on things considered as subjects of rights. I had intended to make some remarks on facts or events, considered as modes of acquisition, but these I find I shall have better opportunities of introducing, a Lecture or two further on.

Various meanings of the word thing in the Roman Law.

Excluding from the word things, rights and duties, which are often called by jurists, things incorporeal; the word thing is used by the Roman Lawyers in three distinct meanings.

775Taken with the most extensive sense, it embraces every object, positive or negative, which may be the subject or object of a right or duty. Taken with this extensive sense, it embraces (first) any permanent external object which may be the subject of a right or duty, and which is not a physical person, or a collection of physical persons. 2ndly; It embraces persons considered as the mere subjects of rights: that is to say, considered as the subjects of rights residing in other persons, and availing against third persons. In this sense, a slave is styled a thing. 3rdly; It embraces acts and forbearances considered as the objects of rights and duties: that is to say, acts which are to be done or forbearances which are to be observed agreeably to rights or duties. For example, If I am bound by contract to deliver goods, or to refrain from sending goods of a sort to this or that market, the act or forbearance to which I am bound would be styled ‘res,’ or a ‘Thing.’

In a sense more circumscribed, It excludes persons, considered as subjects of rights, and includes only the following objects: 1. Permanent external objects, not being persons, and considered as subjects of rights and duties: 2. Acts and forbearances as subjects of rights and duties.

In a sense which is still narrower, it excludes persons as subjects of rights and duties, it excludes acts and forbearances as objects of rights and duties, and it merely embraces such permanent external objects as fall not within the description of persons, and are actual or possible subjects of rights or duties. This last is nearly the sense which is attached to the term ‘thing’ in ordinary discourse or parlance. When we speak of a thing, we usually mean an object which is sensible and permanent, and which is not a person. We contradistinguish it, on the one hand, to fact or event; and we contradistinguish it, on the other, to person, homo, or man. Sometimes, however, we take it in a sense which is somewhat narrower. When we speak of a thing, we mean a sensible permanent object which is inanimate.

Sometimes, again, we take it in a sense so extremely extended, that it denotes any object, whether it be actual or possible, real or imaginary, which may become an object of conception, or may be made an object of discourse.

In English Law.

In the language of the English law, it would not appear that the term ‘thing’ has any determinate import. The writers who pretend to define it, seem to limit the term to certain classes of rights, and to things properly so called. This, for instance, 776is the case with Blackstone, in the second chapter of his second book. But when they come to the detail, they seem to include under things, persons as the subjects of rights, and acts and forbearances as their objects.

For example: A slave is a chattel, and a chattel is a thing: Insomuch that a slave is a thing as comprised in the term chattel, although he is excluded (inconsistently enough) from the import of the term thing as explained in a general manner. Again: Blackstone in his second chapter tells us that the objects of dominion or property are things: and by things, he there means permanent external objects, not persons. But it appears (from the rest of the second book) that he comprises in dominion or property the whole class of rights which may be styled obligations: that is to say, rights arising directly from contracts and quasi-contracts, together with the rights to redress which arise from civil injuries. And as the objects of obligations are always acts or forbearances, it follows that he includes these in the import of the term thing, although he excludes them from his formal definition of them.

In short, the extension of the term thing is so extremely uncertain, that if it were expelled from the language of law, much confusion would be avoided. Where it has a definite meaning, it denotes such sensible objects as are subjects of rights and duties. The immediate objects of rights and duties are acts and forbearances. But, in some cases, these acts and forbearances have themselves specific objects with reference to which they are to be done or exercised. E.g. Right to conveyance or delivery. Right in a house or field. Right in a slave.

Sensible objects, considered as the subjects of rights and duties, might be styled things. Men, as invested with rights, or as bound to acts or forbearances, might be styled persons: And the acts or forbearances which are immediately or properly the objects of rights or duties might be distinguished from things and persons. Or the objects about which rights and duties are conversant might be distinguished into persons, objects of rights and duties, and subjects of rights and duties: Meaning by persons, men as invested with rights, or as bound to acts or forbearances: Meaning by the objects of rights and duties, the acts to be done, and the forbearances to be observed, in pursuance of rights and duties: and meaning by the subjects of rights and duties, the sensible and permanent objects which are the objects of those acts and forbearances.

Distinctions among things in established systems of Law.

777Having made these general remarks on the import of the term ‘thing,’ I will now pass in review certain divisions of things which are made in the Roman and English Law.

1. Corporeal and incorporeal.

The distinction between things corporeal and things incorporeal I have already attempted to explain.²⁴

In the Roman law, things corporeal are permanent sensible objects (whether things or persons) considered as the subjects of rights and duties; and acts and forbearances considered as their objects.

Things incorporeal are rights and duties themselves.

The distinction is utterly useless; inasmuch as rights and duties, having names of their own, need not be styled ‘incorporeal things.’ And the distinction is either imperfect, or else is big with contradiction. For either forbearances are not ranked with corporeal things, in which case an object of the distinction is omitted: or they are; in which case insensible objects are ranked with sensible.

In the English Law, the same distinction obtains. It is however applied less extensively, and still more inconsistently.

Corporeal hereditaments are such sensible immovable things as are the subjects of heritable rights. Incorporeal hereditaments are certain heritable rights themselves. The term ‘Chattels’ is also applied in the same inconsistent manner. Chattels real are such rights or interests in corporeal and immovable things as devolve to executors or administrators. Of chattels personal some are movable things in the proper acceptation of the term, whilst others are rights: namely, rights arising directly from contracts or quasi-contracts, or rights of action. As applied in some cases, the term chattel signifies a right; as applied in other cases, it signifies a thing, considered as the subject of a right.

2. Movable and immovable.

Permanent sensible objects which are not persons, are divided into things movable and things immovable.

Physically, Movable things are such as can be moved from the places which they presently occupy, without an essential change in their actual natures.

Physically, Immovable things are such as cannot be moved from their present places; or cannot be moved from their present places without an essential change in their actual natures. A field is an example of the first. A house, a growing tree, or growing corn is an example of the second.

But things which are physically movable may be immovable 778by institution. For example, an heirloom, though physically movable, is immovable by institution. The meaning of which is merely this: that the thing, though physically movable, is arbitrarily annexed to an immovable thing, so as to be considered as a part of it, and to be comprised in its name.

Sometimes the meaning is somewhat different. The movable thing is made the subject of rights which are commonly confined to immovables: e.g. Money directed to be laid out in land, and descending to the heir, is impressed with the character of land: i.e. descending, though not land, as land itself descends according to the English law.

Another division of sensible permanent things is, into things determined specifically or individually, and things which are merely determined by the classes to which they belong: e.g. The field called Blackacre, or a field. This or that horse, or a horse. A bushel of corn, a yard of cloth, a pound of gold, a given number of guineas; or the bushel of corn contained in such a bag, or the yard of cloth, the pound of gold bearing such a mark, or the ten specific guineas now in your purse. ^[*]

3. Res mancipi and res nec mancipi.

Things were divided in Roman law into res mancipi and res nec mancipi. This distinction turns on forms of conveyance. Res mancipi were things which could only be aliened by a certain mode of conveyance. If they were not conveyed by the prescribed form, the party could only acquire them by usucapion, working on his actual possession. The mere conveyance imparted no interest to him.

4. Things determined specifically and things determined by their kind.

Things are either determined specifically or individually, or they are merely determined by the kinds to which they belong. You may be bound to convey to me the field called Blackacre, or a field; the particular horse in your stable, or a horse of a certain description; a bushel of corn; a yard of cloth; a pound of gold; a given number of guineas; or the bushel of corn in such a bag; the yard of cloth; a pound of gold bearing such a mark; the ten guineas in your purse.

In the language of the Roman Lawyers, a thing individually determined is styled ‘species.’ A thing which is merely determined by the class to which it belongs, is styled ‘genus.’ Sometimes, genus signifies the class of things, and the indeterminate individual belonging to the determined class is styled ‘quantitas:’ though the term quantitas is usually limited to such indeterminate things of determinate classes as mensurâ, numero, vel pondere constant: As, to a bushel of corn, a pound of gold, and so on. The thing is determined by mensuration as well 779as by kind, although it is not determined specifically or individually.

The terms species and genus, in the language of jurisprudence, have therefore a meaning different from that which they bear in the language of logicians. In the language of logicians, a genus is a larger class, and a species is a narrower class contained by the genus. As animals are a genus, men are a species of animals.

In the language of jurisprudence, genus denotes a class (whether it be a genus or species in the language of logicians), or it denotes an individual or portion not specifically determined, belonging to a determined class. Hence the expression, ‘specific legacy, specific, performance.’ In the language of logicians, it would signify something totally different. A specific legacy would be a gift of an indeterminate something belonging to a determinate class.

Again, specific performance would mean something totally different from what it actually denotes. It would not mean a performance of an obligation in the very terms of it; for instance, by conveying that specifically determined house; but would be equally applicable if I merely conveyed a house, or something standing in lieu of one. I therefore conceive that this use of the word specific corresponds to the term species of the Roman jurists, with whom species always meant an individual.

5. Fungible and not fungible.

Allied to the distinction between species and genus, or species and quantitas, is the distinction of things into fungible and not fungible.

Where a thing which is the subject of an obligation (i.e. which one man is bound or obliged to deliver to another) must be delivered in specie, the thing is not fungible: i.e. that very individual thing, and not another thing of the same or another class, in lieu of it, must be delivered.

Where the subject of the obligation is a thing of a given class, the thing is said to be fungible: i.e. the delivery of any object which answers to the generic description will satisfy the terms of the obligation. ‘In genere suo functionem recipiunt:’ Meaning that the obligation is performed by the delivery of genus or quantitas. ‘Una fungitur vice alterius.’ In the language of the German jurists, fungible things are styled ‘vertretbar’—representable. This expression is perhaps better than the other. A fungible or representable thing is a thing whose place, lieu, or room, may be supplied by a thing of the same kind, or even by a thing not of the same kind, as money in the form of damages.

780Things are fungible or not fungible, not in their own nature, but with reference to the terms of the given obligation. Otherwise, any thing of any class may be either fungible or not. A man may devise a farm, or a house, though it is not likely he would do so, and though the bequest would probably be void by reason of uncertainty. But, in the writings of the Roman Lawyers, there are actual instances of facts of the kind.

Fungible things are generally confounded with things quæ usu consumuntur because these, for obvious reasons, are usually sold in genere, not in specie. But these things may be the objects of a specific obligation, as the others may of generic. I may be bound to deliver to you, not only so much wine, but that specific parcel of it now lying in my cellar, and in such a corner of it. The distinction does not arise from any physical difference in the nature of the things, although there are some things which are most naturally sold in genere, and others of a permanent kind most naturally sold in specie.

This distinction is of considerable importance in practice with reference to performance in specie or recovery in specie. Almost the only ground for enforcing specific performance is, that nothing else can completely supply the place of that very thing for which the party contracted. Where it can, there is no reason for enforcing the contract in specie.

In English Equity, a specific delivery is not enforced unless the subject of the contract is land. There is one case on the books in which it was enforced in the case of a contract for iron; but I never could understand on what ground. Contracts to deliver movable objects have been specifically enforced, because the objects were of so peculiar a nature that they could not be replaced. Such was the case of the Pusey horn, an object so specific and so completely sui generis, that the party never could have replaced it. But in the case of iron I never could understand the motive; money in the form of damages would have sufficed as completely as it can in any case. The distinction is also of importance with reference to recovery in specie, where a party has been wrongfully dispossessed of a specifically determined thing. Neither is specific delivery enforced by our common law, unless by the action of detinue, and there the alternative is always allowed. The analogous action of trover is merely for damages.

6. Res singulæ and universitates rerum.

Things are again divided into res singulæ and universitates rerum; things which are themselves individual and single, and cannot be divided without completely destroying their actual nature, 781and lots or collections of individual things. A sheep belongs to the first class, a flock of sheep to the second. This is not a distinction without a difference. If a man contracts to deliver so many sheep, and if he contracts to deliver a flock consisting of that number of sheep, his legal position is not the same in the two cases. If some of the sheep die in the interval, he must yet, in the first case, deliver the stipulated number; in the second, he need not, because you bought them in the gross.²⁵

The only reason for defining and distinguishing things in the law, or in the expositions of it, is in order that dispositions of things and contracts relating to them may thereby be facilitated; that parties may know the effect of using such and such expressions in contracts and conveyances. It is important that the meaning of such terms as messuage, for instance, should be practically settled, in order that the import of the words used in a contract, for example, may be exactly known. There are several cases in our law books turning on that very question.²⁶ What does a party dispose of, by disposing of his furniture, or by disposing of all his effects? The law must determine: that is, must determine the meaning it will attach to the words if the parties have not explained clearly the exact meaning which they annex to them, so that a party may exactly know what construction in the courts of justice will be put upon those names.

Bentham, in his Vue générale d’un Corps complet de Droit (tit. ‘Des Choses’), has not, so far as I can observe, at all improved upon the old distinctions, extremely imperfect as they undoubtedly are; and he has even misapprehended some of those distinctions. He first divides things into choses naturelles and choses artificielles, a distinction of which I cannot perceive the purpose. Next into movable and immovable, an old distinction. Next into things consumable and things which may be used with782out being consumed, which is the vulgar or erroneous notion of the distinction between things fungible and not fungible.

The distinction of the Roman Lawyers between species and genus, or between things determined individually and things determined by their kinds, he expresses thus: ‘things valued individually and things valued in mass.’

In our conveyances, we make up for the indefiniteness of the general description, by attaching to the term which ought to convey the whole meaning, a list of as many of the parts which fall under it as we can think of; a sort of drag net, to comprehend everything which happened to be omitted out of the comprehension of the one general name. This would be avoided if the exact import of those single names were specially determined by the legislator.

Notes.

Quantitas quæ pondere aut mensurâ conslat: a determinate quantity (determined, that is, by weight or measure) of an inorganic substance.

Quantitas quæ non constat;—a determined quantity (determined, that is, by the number of individuals) of organic individuals. Any such quantity is individuum vagum. An assigned quantity of the sort is species.

A quantity of the first sort may be resolvable into organic individuals, but organic individuals which, for the purposes of commerce, are never considered in that character; as, e.g. grains of corn. Numerus, on the contrary, is made up of individuals, which, for the purposes of commerce, are considered as such: i.e. are counted; e.g. Sheep.—Marginal Note in Hugo, Enc. p. 324.

‘Thing’ and ‘Produce’ are clearly relative terms. That which is produce with reference to some given subject (as, for instance, growing fruit with reference to the tree upon which it grows (becomes a substantial or independent thing so soon as that relation ceases (e.g. by severance). Earth made into bricks, or fruit taken from a tree, cease to be produce or integrant parts of land, and pass into the class chattels. And again (as the bricks, for instance) may, by composition, become integrant parts of another subject.—Marginal Note in Blackstone, vol. iii. ch. 14.

Inquirenda: How to define the subject of a Right, or, more briefly, a Thing?—What is comprised in the subject itself? What is to be understood by its appurtenances? What is to be understood by its produce or profits? What is to be understood by the uses or services to be derived from it? By produce or profits are we to understand periodical accretions—substances which, though removed 783from the subject, are reproduced in genere? If so, how can minerals be profits or produce? and why are trees part of the inheritance. In the case of land, etc. every such object, perhaps, is comprised in the subject, as it has an indefinite duration and cannot be removed from it without severance.—Marginal Note in Blackstone, vol. ii. ch. 1.

A university, or collection of Things, what? Must be distinguished from a university of Rights or Obligations. A university of Things is not the subject of universum jus. It is a collection of physical things (whether the individual things be simple or composite); is itself a legal individuum; and is, therefore, not the seat of an universitas juris.

‘Magna autem differentia eat mancipi rerum et nec mancipi. Nam res nec mancipi nuda traditione abalienari possunt, si modo corporales sunt et ob id recipiunt traditionem.

‘Mancipi vero res sunt quæ per mancipationem ad alium transferentur,’ etc.—Gaius, lib. ii. § 19.

The difference assigned by Gains is a difference of properties or accidents: that is, a difference between the modes in which things of these sorts were respectively aliened or conveyed. That difference between the two classes which was the cause or source, is not even adverted to.—Marginal Note and Table in Gaius.

[beginning of lecture 47]