Page:Harvard Law Review Volume 1.djvu/64

 and the use of the same word to express the right is a defect of nomenclature which is unfortunate, as it has given rise to much confusion of ideas.

Obligations are either personal or real, according as the duty is imposed upon a person or a thing. An obligation may be imposed upon a person either by his own act, namely, by a contract, or by act of law.

An obligation may be imposed upon a thing either by the will of its owner, manifested by such act or acts as the particular system of law requires, or by act of law. It is in such obligations that those rights of property originate which are called rights in the property of another,—jura in re aliena. Instances of real obligations will be found in servitudes or easements, in which the law regards the servient tenement as owing the service; also in the Roman pignus and hypotheca, in which the res, pignorated or hypothecated to secure the payment of a debt, was regarded as a surety for the debt. The pignus has been adopted into our law under the name of pawn or pledge. The hypotheca has been rejected by our common law, though it has been adopted by the admiralty law. A lien is another instance of a real obligation in our law, the very words “lien” and “obligation,” having the same meaning and the same derivation. A familiar instance of a real obligation created by law will be found in the lien of a judgment or recognizance.