Page:Harvard Law Review Volume 10.djvu/522

496 496 HARVARD LAW REVIEW. there are many non-contractual rights which nevertheless receive abundant protection from the courts. A contract requires not only consent, but also a consideration. The beneficiary of an express trust has usually given no consideration whatever for his rights. They are, however, created by consent, are defined by consent, are terminated by consent, and withal are most favored in law. Consensual rights therefore are the third class of legal rights. If the foregoing arguments have been sound, the following is an exhaustive classification of the legal rights which may belong to any individual : — A. Right of freedom. Organic. . . t^ t^. , ( B. Right to co-operation. Personal . . C. Consensual rights. It remains now to consider the effect of a breach of right, and it is to be observed in the first place that a breach does not termi- nate a right, because if it did it would be possible for any person or society to terminate its obligation (the correlative of the right) by a mere refusal to perform, and obedience would in effect become merely optional. Such a result is inconsistent with our premise, that obedience is obligatory, not optional. A right then can be terminated or (destroyed as between the parties only by the consent of him who owns it, and the effect of a breach is, not to destroy the obligation, but, at the most, to change it. The organism, like the chemical molecule, is a system of deli- cately adjusted and balancing parts, and a breach of a right is there- fore the disturbance of a position of organic equilibrium between the parts of the organism. Justice, then, lies originally in the maintenance, and secondarily in the restoration, so far as possible, of that position of equilibrium. The duty of him who commits a breach of obligation is therefore to put the injured person as nearly as possible into his former position. Such a duty is merely second- ary, arising only upon a breach of some one of the original obliga- tions. It is the secondary obligation, however, that is usually enforced by the courts, since it is rarely the case that they are able to prevent the breach of a primary obligation. It is some- times accomplished, however, as by an injunction against a threat- ened trespass ; but, with exceptions of this character, in all contentious cases the judgment of the court is a declaration of the secondary duty of the defendant, reinforced by the power of the court through its judicial process to compel performance, and