Rights in Rem versus Rights in Personam

Compare a notice fixed to your gate with a letter in your pocket. The notice ('Private property: keep out') speaks to everyone who passes; every one of them is bound to stay out, though you have never met them. The letter is an IOU signed by one friend; only he owes you the money, and the rest of the world owes you nothing in respect of it. Your ownership of the house is a right in rem; your claim under the IOU is a right in personam. The classification is about who is bound: everyone, or particular people.

1. Origin and Austin's Formulation

The terms come from the Roman law of actions. An actio in rem was brought to assert a right to a thing against anyone who withheld it; an actio in personam was brought against a particular person who was bound by an obligation, such as a contract or a delict. Later jurists transferred the names from the actions to the rights they protected. Austin adopted the terms jus in rem and jus in personam and gave the modern explanation. The phrase in rem, he pointed out, does not refer to the subject of the right (a thing) but to its compass: a jus in rem is a right residing in a determinate person and availing against other persons universally or generally, while a jus in personam avails exclusively against a determinate person or persons. This is why rights in rem exist over things that are not things at all, such as reputation and bodily safety.

2. Salmond's Definitions and Features

Salmond noted typical features. The duty answering a right in rem is usually negative (forbear from interfering); that answering a right in personam usually positive (pay, build). This is only a tendency: a seller's covenant not to compete with the buyer of his business is a negative right in personam. Rights in rem are commonly proprietary and lasting, following the thing into later hands; rights in personam are commonly created by transactions and end on performance.

3. Hohfeld: Multital and Paucital Rights

In the second part of his article (1917), Hohfeld attacked two misunderstandings of rights in rem. The first is that a right in rem is a right against a thing. Legal relations exist only between persons; a thing can be the object of a right but can owe no duty. The second is that a right in rem is one single right against the whole world. Hohfeld showed that the owner of land, Blackacre, has a separate right against each person that he not enter: one against B, another against C, another against D, and so on. These rights are alike in content but distinct. That is why A can extinguish his right against B alone, by giving B a licence to enter, without affecting his rights against everyone else.

To avoid the misleading Latin, Hohfeld proposed new names. A right in rem is a multital right, one of a large class of like rights against an indefinite number of persons. A right in personam is a paucital right, a right against one or a few definite persons. The terms apply equally to Hohfeld's other advantages, so one can have multital privileges, powers and immunities as well as multital claims.

4. From Right in Rem to Right in Personam: The Sanctioning Right

It is sometimes said that an owner has a right in rem in his land against all, and also a right in personam against a particular trespasser, as if the two coexisted from the start. That is not accurate. Before the trespass, the owner holds a right in rem, one of whose many strands is a right against the future trespasser T, just as against everyone else. When T trespasses, he violates that right in rem, and the violation creates a new right in the owner: a right in personam against T alone, to damages or other redress.

Salmond called rights of this second kind sanctioning (or remedial) rights, as distinct from primary rights, which exist independently of any wrong. The owner's right to exclusive possession is primary and in rem; his right to be compensated by T is sanctioning and in personam. The same pattern appears everywhere: the right not to be defamed is in rem, but the right to damages from the particular defamer is in personam. The owner's right against a tenant, by contrast, is a primary right in personam created by the lease, which is a different thing again.

5. Three Classifications Not to Confuse

Jus in rem and jus in re

Jus in re is a different classification. It asks not against whom a right avails, but whose thing it is exercised over. A jus in re propria is a right in one's own thing: ownership. A jus in re aliena is a right in a thing owned by someone else, an encumbrance such as a lease, an easement, a mortgage or a charge. Most encumbrances are themselves rights in rem, since they bind persons generally, so the two classifications cut across each other. A related term, jus ad rem, means a right to a thing, that is, a right to have a thing transferred, such as a buyer's right under a contract for sale to have the goods delivered; it is a right in personam against the seller.

Judgments in rem

A judgment in rem is a judgment that declares or alters the legal status of a person or thing and binds everyone, not only the parties. Under the former Section 41 of the Indian Evidence Act, final judgments of a competent court in the exercise of probate, matrimonial, admiralty or insolvency jurisdiction, conferring or taking away a legal character or declaring title to a thing, were conclusive proof against all the world; the same rule has been carried into the Bharatiya Sakshya Adhiniyam. A judgment in rem is a matter of the effect of a decision; a right in rem is a matter of the range of a duty.

A right over a thing

As Austin and Hohfeld both stressed, a right in rem is not a right over a thing. Rights in rem include the right to life, to bodily safety, to reputation and to liberty, none of which concerns a thing. And many rights concerning things, such as a buyer's right to delivery, are rights in personam.

6. The Trust Beneficiary: A Classic Debate

Where does the right of a beneficiary under a trust fall? Maitland, in his lectures on Equity, argued that equitable rights are in personam: equity acts on the trustee's conscience, and the beneficiary's right is against the trustee and those who take the property subject to his obligation. The proof is that a bona fide purchaser for value without notice takes free of the trust, which a true right in rem would bind. Others reply that the right binds so many classes of persons (volunteers, purchasers with notice, the trustee's creditors) that it is in substance a right in rem. Indian law leans towards Maitland: Section 3 of the Indian Trusts Act, 1882 defines the beneficial interest as the beneficiary's right against the trustee as owner of the trust property.

7. The Two Compared

8. The Indian Perspective: Arbitrability

The distinction has acquired great practical importance in India because it determines whether a dispute can go to arbitration. An arbitral tribunal is a private forum created by agreement between the parties, and its award binds only them. It cannot decide matters that bind persons generally.

9. Evaluation

The classification is useful because it marks a real difference in how rights are protected, transferred and litigated, and Indian arbitration law now turns on it. It is misleading because the Latin suggests a right against a thing and 'against the whole world' suggests a single right; Hohfeld's multital analysis cures both errors. The line is also a matter of degree, since some personal rights bind third parties with notice.

10. Frequently Asked Questions

Q. What is the difference between a right in rem and a right in personam?
A. A right in rem avails against persons generally and is matched by a duty, usually negative, resting on an indefinite class, as with ownership. A right in personam avails against a determinate person and is matched by a duty resting on him alone, as with a contract debt.

Q. Does the owner have a right in personam against a trespasser?
A. Only after the trespass. Before it, the owner's right against the trespasser is one strand of his right in rem. The trespass violates that right and creates a new sanctioning right in personam against the trespasser to damages, as Salmond explained.

Q. What are multital and paucital rights?
A. Hohfeld's terms (1917). A multital right is one of a large class of like but separate rights against an indefinite number of persons; together they make up what is loosely called a right in rem. A paucital right is a right against one or a few definite persons, corresponding to a right in personam.

Q. Why does the distinction matter for arbitration?
A. Because an arbitral award binds only the parties. Booz Allen (2011) held that disputes over rights in rem are generally not arbitrable while rights in personam are, and Vidya Drolia (2020) laid down a fourfold test and held tenancy disputes under the Transfer of Property Act arbitrable.

See also: Note 28 (kinds of rights; Hohfeld), Note 31 (ownership), Note 32 (property), Note 73 (right versus liberty), Note 74 (right versus power).