« PreviousContinue »
viz., rights to the society of and control of one's family and dependents, is, that the object over which they are exercised is always a person. As Austin points out, all these rights belong to the Law of Status.* Accordingly, in my Code, instead of occupying the position assigned to them by Mr. Holland, they would appear as the first subdivision of the Law of Status.
Mr. Holland is, I think, correct in classing patents and copyright with rights of property. Austin mentions them as instances of rights which have no specific object, but though it is true that there is no physical object, such as land or a house, over which these rights are exercised, there is an intellectual object which it has been found convenient to treat upon the analogy of physical objects. Thus we talk of “owning” a patent as well as of “owning” a house, and a copyright is described as “ property ” with equal correctness as a flock of sheep. Moreover, as this class of rights cannot by any manner of means be called “ natural” or “primordial,” to place them in the same division as rights which have no specific object would prevent our calling these rights by any name denoting their inherence in every normal person. Perhaps the most appropriate place for them would be at the beginning of rights of ownership, thus treating them as a transitional stage between rights which have no specific object and rights which have a physical object.
I also fully agree with Mr. Holland in treating “ Fraud" as an infringement of the right to immunity from fraud which every person enjoys. This right, as Mr. Holland points out in a note, was first established in the leading case of Pasley v. Freeman, decided in the Court of King's Bench in 1788.
Another point to notice in this chapter is the treatment * See, for this, and also for the classification of rights in rem generally, Austin's Jurisprudence, pp. 814.817.
of a “life-estate" as a personal servitude. This is strictly correct, for a life-estate is exactly the same as the Roman “ usufruct," and is a form of limited ownership. The creation of life-estates has become such an integral part of our real-property system, that not only laymen, but even lawyers look upon this tenure as quite a normal species of ownership. A classification, therefore, which calls attention to the fact, that a life-estate is ownership in an abnormal and exceedingly limited state, and therefore only to be allowed under certain circumstances, is warmly to be welcomed by all advocates of " free land.”
The twelfth chapter deals with the other branch of antecedent rights, rights in personam, those which avail against ascertained individuals. These rights, Mr. Holland points out, may exist in two ways, either by the agreement of the parties, or from some facts to which it has pleased the Law to affix similar results. He therefore divides them into two classes, rights ex contractu and rights ex lege, the term "ex lege” being substituted for the Roman “ quasi ex contractu.” The latter class of rights, which is taken first, is further sub-divided into i. the Domestic ; ii. the Fiduciary; iii. the Meritorious; and iv. the Official. I thoroughly agree with Mr. Holland that the rights of husband and wife are to be reckoned among those which arise by operation of law rather than out of contract. The few words which he says on the subject are so pertinent, that I will quote them. “ The matrimonial status is indeed entered upon in pursuance of an agreement between the parties, accompanied by certain religious or civil formalities; but its personal incidents are wholly attached to it by uniform rules of law, in no sense depending upon the agreement of the parties, either at the time of the marriage or subsequently.” I prefer, however, as I said before, to treat the law of husband and wife, as well as that of the other domestic relations enumerated by Mr. Holland, as part of the Law of Status. It is in fact, one of the characteristics of Status that the main rights and duties of the persons affected with it are defined by the law, and that though they themselves can to some extent vary them by agreement, they cannot deviate from the general outlines.
For this reason I should also transfer to the Law of Status Mr. Holland's second sub-division of rights in personam, viz., Fiduciary rights. In Roman Law trusts could only be created by an act of a testamentary character, and they, therefore, naturally form part of the Law of Universal Succession. But in English Law where they can be created inter vivos as well as by testament, this would not be a convenient or a proper arrangement. The only alternative seems to be between the place assigned to them by Mr. Holland and the one I have suggested. It is true that the mutual rights of trustee and cestui-quetrust depend considerably upon the agreement entered into between the parties themselves, but the main features of the relationship, the broad principles upon which it rests, are a creation of the Law.
Mr. Holland's third sub-division, to which he gives the name of “ Meritorious," is unimportant, and is very slightly represented in English Law. I would therefore put it as an appendix to the topic of contracts for service. The title which gives rise to this class of obligations may in fact be accurately described as a quasi-contract for service.
The fourth and last sub-division, that of rights against officials, is more difficult to dispose of. But, seeing that every right against an official implies a corresponding duty on the part of the official, I think they may be conveniently treated under this head. Now, the duties of most officials, such as bishops, or sheriffs, are matters for Public Law, while the duties of others, such as shipowners, will be found in the Law of Status. Lords of manors, again, have their duties defined under the topic of ownership. It may be objected that this arrangement splits up and distributes among different parts of the Code a class of rights which ought to be kept together, but as few persons would, for practical purposes, want to ascertain their rights against more than one class of officials at once, no inconvenience can arise on this score.
I have thus disposed of the whole of Mr. Holland's division ex lege, a division which, without adopting Austin's criticism of this term that “all rights arise by operation of law," I venture to think is faulty, and for this reason, that several of the sorts of contracts which Mr. Holland enumerates present the very feature which he would make the distinguishing mark of the first division. Thus in agency, bailment, and partnership, the rights of the parties, though, to a great extent they depend on agreement, are also defined by the Law. The Romans called obligations of this sort quasi ex contractu, apparently for no other reason than that they did not arise either from contract or from wrong-doing. They also spoke of them as arising ex variis causarum figuris. It is, therefore, probable that they looked upon them as a sort of supplementary class of miscellaneous obligations to which it was impossible to give a definite name. Two of them, which gave rise to rights against a tutor and curator respectively, would seem to belong to the Law of Status, three more were intimately connected with ownership, another was the obligation of a heres to a legatee, while to only two, the topics of money paid under a mistake, and voluntary performance of services (Negotiorum gestor), can the name of quasi-contracts with any accuracy be applied.* The use, however, of this term shows that at any rate it was not the intention of the Roman jurists to make a radical division of obligations into those which arise
* Some useful notes by Austin on the subject of quasi-contracts will be found at pp. 944-948 of his Jurisprudence.
from contract and those which do not. I prefer, then, to make rights ex contractu occupy the whole field of rights in personam, so that the two terms will express the same class of rights though describing them from different points of view, the former term having reference to the origin, the latter to the scope of the right.
After a brief and lucid exposition of the nature and elements of a contract generally, Mr. Holland proceeds to classify contracts. He adopts, as his radical division, that of "principal” and “accessory," i.e., those which are entered into without any ulterior object, and those which are entered into only for the better carrying out of a principal contract. Principal contracts he sub-divides into six classes according as this object is, i. alienation ; ii. permissive use ; iii. marriage; iv. services; v. negative service; vi. aleatory gain. The word “ permissive" before use is, I think, unnecessary. Partnership should form a separate class, but, as I said before, it is a question whether this is the proper place for it. Company Law, which is merely an extension of Partnership Law, is certainly matter for the Law of Status, and it might be convenient to put partnership, which is, in fact, a status, in the same place. All modern Codes, however, treat of partnership as a special class of contract. The term “ negative service” is obscure; as the importance of this topic is solely derived from the fact that the Law gives no effect to certain contracts of this sort, the proper place to treat of them will be under the head of unlawful contracts, an important topic which Mr. Holland dismisses rather too summarily (p. 177). The term “aleatory gain” is open to the charge of being fanciful. Why should not the simple term “wagers” be used, and the important topic of “insurance” form a separate sub-division ?
Mr. Holland enumerates, as instances of “ accessory” contracts—a more familiar term is “collateral ”-surety