Right versus Power

Hold a train ticket in one hand and a pen in the other. The ticket entitles you to a seat: the railway is bound to carry you, and if it refuses it commits a wrong. That is a claim-right. The pen lets you sign a will, a sale deed or a cheque, and with a stroke you change who owns what and who owes what to whom. That is a power. The ticket is about what others must do for you now; the pen is about what you can bring about in the legal world. In loose speech we call both 'rights', as when we say that a person has a right to make a will. Hohfeld showed that they are quite different advantages with different correlatives.

1. The Claim-Right and the Power

A claim-right is a claim that another act or forbear, matched by a duty (Note 72). If B has borrowed from A, A has a claim that B repay. The claim does not change the legal landscape; it holds B to conduct already fixed. It is infringed when the duty is broken, and its opposite is a no-right.

Hohfeld described a power as one's affirmative control over a given legal relation as against another. Where the law attaches a change in legal relations to the volition of a particular person, that person has a power. His examples include an owner's power to abandon or transfer his chattel, an agent's power to bind his principal, and an offeree's power to create a contract by accepting.

Salmond's definition stresses three things: the ability is conferred by law (nobody has a natural capacity to make a will); it works by the will of the holder directed to that end; and it operates on legal relations, not directly on physical things.

2. Liability and Disability

The correlative of a power is a liability: if A can change B's legal position, B is liable to have it changed. A liability is not a duty. A person under a duty must behave in a certain way; a person under a liability need do nothing, but may find his position altered by another's act. Nor is a liability necessarily a burden: it means only exposure to change, and the change may be welcome. Everyone is liable to become owner of property if another chooses to make him a gift of it, and everyone is liable to receive an offer, and so to acquire a new power of acceptance.

The opposite of a power is a disability: the absence of power in the same person. A stranger is under a disability to sell your house; whatever he signs, your ownership is unaffected. A proposer is under a disability to revoke once acceptance is complete as against him. Keep the pairing straight: power against disability (opposites, one person); power with liability (correlatives, two persons).

3. Exercised, Never Breached

A claim-right is infringed when the duty is broken. A power cannot be infringed or breached at all: it is exercised or not, validly or invalidly. A testator who signs a will without attestation commits no wrong; his will is simply void. Hart used this against Austin: the nullity that follows a defective exercise of power is not a sanction, because nobody is threatened with harm; the law merely refuses to recognise the attempted change (Note 61).

4. Public and Private Powers

Salmond divided powers into public and private. Public powers are vested in a person as an agent of the State: the legislative power of Parliament, the judicial power of a court, the executive power of a minister. Private powers are vested in persons for their own purposes: to make a will, contract, transfer property, marry or appoint an agent. Some powers affect one's own relations (making a will); others affect the relations of others (an agent binding his principal). Public powers are often coupled with a duty.

5. Hart's Power-Conferring Rules

In The Concept of Law (1961), Hart argued that Austin's commands backed by threats cannot explain rules that confer powers: rules enabling individuals to make wills, contracts and marriages, and enabling legislatures to legislate and courts to adjudicate. Such rules tell people how to do something legally effective, not what they must do. Hart's secondary rules of change and adjudication are power-conferring rules, and his union of primary and secondary rules depends on the idea (Note 61).

6. How Rights and Powers Interlock

7. The Two Compared

8. The Indian Perspective: Powers in the Statute Book

Offer, acceptance and revocation: Contract Act, ss. 4 to 6

Contract formation is a textbook sequence of powers. By proposing, A gives B a power of acceptance and places himself under a liability to be bound. Under s.4, communication of an acceptance is complete as against the proposer when it is put in a course of transmission to him so as to be out of the acceptor's power, and as against the acceptor when it comes to the proposer's knowledge. Under s.5, a proposal may be revoked before communication of acceptance is complete as against the proposer, but not afterwards; an acceptance may be revoked before communication is complete as against the acceptor. So the proposer's power of revocation ends when the acceptance is posted, and he then comes under a disability. Section 6 lists how the offeree's power ends: notice of revocation, lapse of time, failure of a condition precedent, and death or insanity of the proposer if known to the acceptor before acceptance.

Agency coupled with an interest: Contract Act, s.202

A principal ordinarily has a power to revoke an agent's authority. But under s.202, where the agent himself has an interest in the property forming the subject matter of the agency, the agency cannot, absent an express contract, be terminated to the prejudice of that interest. The statutory illustration is an agent authorised to sell land and pay himself, out of the price, debts owed to him. The agent holds a power combined with an immunity, and the principal is under a disability to revoke (Note 75).

9. Evaluation

Separating powers from claim-rights explains why a person who fails to make a valid will has done no wrong, why an offeror can be bound by an acceptance he never saw, and why nullity differs from sanction; it also armed Hart against the command theory. Its limit is that it is purely formal: it says nothing about when the law should confer powers, which is why public law adds doctrines such as the power coupled with a duty.

10. Frequently Asked Questions

Q. What is the difference between a right and a power?
A. A claim-right is a static advantage: it requires another to act or forbear and is matched by a duty. A power is a dynamic advantage: the ability conferred by law to alter legal relations by one's own act, such as making a will or accepting an offer, and it is matched by a liability in the person affected.

Q. What is the correlative of a power, and what is its opposite?
A. The correlative is liability: the other party's exposure to having his legal position changed. The opposite is disability: the absence of power in the same person, as a stranger's inability to sell your house.

Q. Can a power be breached?
A. No. A power is exercised or not, and validly or invalidly. An invalid exercise produces a nullity (a will without attestation is void), which Hart stressed is not a sanction. Only a duty can be breached.

See also: Note 28 (Hohfeld's master table), Note 72 (right versus duty), Note 73 (right versus liberty), Note 75 (power versus immunity), Note 61 (Austin versus Hart).