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Published online by Cambridge University Press: 22 November 2024
PATRIMONIAL LAW
The general part
Private law is concerned with patrimonial rights: personal rights; real rights; intellectual property rights. Strictly speaking, then, it is rights, not physical things, that are properly regarded as assets: ‘All rights, therefore, are incorpo-real; and the distinction really is not between two kinds of right, but between things which are objects of right and the legal conception of right itself’. The paradigm focus in property law on real rights in land results in a tendency to identify patrimonial rights with their objects. As the famous Roman and comparative lawyer, Barry Nicholas, elegantly observed:
‘The strictly comparable statement to “I have bought a right of way over a plot of land” is not, “I have bought a plot of land”, but “I have bought a right of ownership over a plot of land”. In each case I have acquired a right … ‘
The relationship of a person to their rights is not their ownership (since ownership may be one of their rights), but their title. Ownership is but one of the real rights and real rights are just one type of patrimonial right. Ownership is not necessary to describe the holding of personal rights. To speak of ownership of personal rights gives rise to a doubling of the rights involved and complicates unnecessarily the already difficult task of legal analysis.
In commercial law, the most important patrimonial rights are often not real rights in physical things, but personal rights to the performance of obligations. Personal rights arising under the law of obligations have no physical object; their object is rather the counter-performance: to use a word of French origin, still often referred to in modern Scottish cases, the object is the ‘prestation’.
Obligations give rise to personal rights, whether those personal rights are born of contracts or promises or delicts or in order to prevent unjustified enrichment. Unlike real rights in land (some of which may endure forever) obligations (and thus their correlative personal rights), it has been said, are ‘born to die’. This chapter will be concerned with the death of obligations, by performance or discharge; or with the maintenance of the obligation and the circulation of the creditor's position in an obligationary relationship.
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