Page:The Green Bag (1889–1914), Volume 22.pdf/539

 The Arrangement of the Law where A delegates to B the performance of some duty of his, (3) direction, as where A commands or directs B to do an act, (4) relation, where A is responsible

for B's conduct on the ground of some relation between them, e.g., of master and servant. The ground of relation might be merely mentioned here, and reference made to the various relations. PART SECOND

511

obligations from holding something of another's; obligations from quasi wrongful acts, e.g., to pay a penalty.

Debts.

Obligations from the reception

of beneﬁts and some from holding some thing of another's are generally said to

arise from quasi or implied contracts. That

ﬁction

was

devised

to

bring

them within the scope of the action of indebitatus assumpsit. Now that forms of action are abolished, that ﬁction is useless and should be dropped. They

Rlon'rs AND DUTIES

are really non-contractual obligations, Rights in Rem. Personal security;

though the parties in some cases may

potestative rights; property; pecuniary condition. Under property abnormal property should be discussed so far

make a contract covering the same ground, in which case there are two concurrent obligations, one contractual

as the rights are rights in rem, with

and

references to such rights in personam as are for any purpose classed as prop

assumpsit was the proper form of action on the actual contract. In such cases

erty.

Equitable property rights are

of overlapping obligations, the plaintiff

rights in personam, and fall elsewhere. Titles to property should be discussed here, including succession at death, wills and the administration of assets.

of assumpsit or join counts in both. The Roman doctrine of obligations

I.

II. Duties Corresponding to Rights in Rem. Each duty should be deﬁned with such exceptions, as are special to

it.

General exceptions,

such

as

defense and protection,authority,license, etc., should come after duties. Under each duty the rights to which it corre sponds should be speciﬁed.

III. Rights in Personam and Their Corresponding Duties. 1. Obligations. Rules applicable to obligations generally. Particular kinds of obligations, classi

ﬁed according to their origin, omitting equitable obligations; obligations created 'by direct act of the state, by statute and judgment (a judgment should not be called a contract); contract obliga

tions; obligations created by gift, e.g., by a grant of a fund (see Langdell, Summary of Contracts, Debt); obliga

tions from the reception of beneﬁts;

one

non-contractual.

Special

could choose between the two forms

ex delicto, i.e., that the commission of a tort gave rise to an obligation to make

compensation, so that an action for a tort was really one for speciﬁc per formance, and the civilians treat of torts under the head of obligations,

seems not to have been adopted in our law, except perhaps in equity or admiralty. It seems to me useless. Rights of action for wrongs are remedial rights, and should go in Part Fourth.

2. Equities. The classiﬁcation of the jurisdiction of equity into exclusive, concurrent and remedial is useless. A better classiﬁcation is into (1) primary or antecedent equitable rights and duties, and (2) secondary or remedial rights and remedies. The former belong here, the latter in Part Fourth.

An equity, roughly defined, is a claim in favor of one person on a right held by another. The right on which the claim exists may be called the basis