Rights in Rem, Rights in Personam and the Tort — Contract Divide — A Structural Analysis the Role of Tort in Civil Liability

The nature of obligations

In everyday language, the word obligation simply means a duty. However, in legal terms — especially as inherited from Roman law — it has a more specific meaning. First, obligations are just one type of duty: specifically, those that correspond to rights in personam¹ (personal rights between specific individuals). An obligation is a vinculum juris, meaning a legal bond or tie that creates a necessary legal relationship between two or more specific people.² For example, it includes the duty to repay a loan, fulfil a contract, or compensate someone for a tort (wrong) but not general duties like not harming someone’s body, property or reputation. Second, in law, the term obligation refers not just to the duty but also to the right that corresponds with it. It describes the entire legal relationship — the vinculum juris³ — including both the right of one party and the duty of the other. From the perspective of the person who is entitled, the obligation is a right; from the perspective of the person who must perform it, it is a duty. So, we can say that a creditor acquires, owns or transfers an obligation, while a debtor takes on or is released from it. Third and finally, all obligations belong to the category of proprietary rights — they are part of a person’s estate or assets. Rights that relate to a person’s status — like those that come from marriage — are not obligations, even if they are rights in personam. Therefore, an obligation can be defined as a proprietary right in personam or a duty that corresponds to such a right.

In Roman law, the person who had the benefit of an obligatio was called the creditor, and the person who was legally bound by it was the debitor. We can use the English terms creditor and debtor in the same broad way. That means we will refer to any obligation, no matter its type, as something that belongs to a creditor and is enforceable against a debtor. Of course, there is also a narrower meaning of these terms, where they apply only to obligations involving debts — specifically, obligations to pay a fixed or clearly determined sum of money. A technical legal term that is often used as a synonym for obligation is chose in action (or thing in action). In modern usage, a chose in action refers to a proprietary right in personam — for example, a debt, shares in a company, money held in public funds, or a claim for damages due to a tort. A non-proprietary right in personam, such as one arising from a promise to marry or from the marital relationship itself, is not considered a chose in action in English law — just as it would not be treated as an obligatio in Roman law.

Choses in action are traditionally contrasted with choses in possession, although the latter term is now rarely used. The exact meaning of this distinction has been debated over time. Today, if the distinction is to have any logical relevance, it must align with the difference between real and personal rights — that is, with the Roman law concepts of dominium (ownership) and obligatio (obligation). A chose in action refers to a proprietary right in personam. All other proprietary rights — including things that are treated as rights because they are directly possessed — are called choses in possession. However, if we look at the history, this was not the original meaning of the distinction. Originally, a chose in possession referred to anything — whether a physical object or a right — that was actually in someone’s possession. In contrast, a chose in action referred to something that the person did not physically possess and would need to claim through a legal action. For example, cash in someone’s wallet was a thing in possession, but money owed to them by someone else was a thing in action. This difference often, though not always, matched the distinction between real and personal rights. Real rights (like ownership of land or goods) usually involve both ownership and possession, while personal rights (like a right to receive payment) are typically owned but not possessed. Still, the two categories did not fully overlap. For example, if someone’s personal property (a chattel) was stolen, it became a thing in action for the original owner, since they no longer had possession. However, their ownership did not become merely an obligation⁴ — they still retained their real right to the property.

In early law, possession was given exceptional importance, and this was a defining feature of the legal system at the time. As the emphasis on possession decreased over time, the original meaning of the distinction between things in possession and things in action faded, and these terms gradually took on new meanings. For instance, in the past, shares and annuities might have been considered things in possession, but today they are classified as things in action. On the other hand, land and chattels (personal, movable property) are now considered things in possession, regardless of whether the owner actually possesses them. Obligations have always been the most important type of things in action, and today they are essentially the only type. Neither the old legal system nor the modern one supports the idea — suggested by some — that intangible property such as patents, copyrights and trade marks should be treated as choses in action.⁵

The sources of obligations

When classified based on their origin or how they come into existence, the obligations recognised under English law fall into four categories:

(a) Contractual — Obligationes ex contractu.

(b) Delictual — Obligationes ex delicto.

(c) Quasi-contractual — Obligationes quasi ex contractu.

(d) Innominate.

Out of these categories, this paper is only limited to discuss about obligations arising from torts.

Obligations arising from torts

The second type of obligation is known as delictual, or in Roman terms, obligationes ex delicto. This refers to the duty to provide monetary compensation for a type of legal wrong known in English law as a tort. The word tort comes from the French term meaning “wrong” (from the Latin tortum, meaning twisted or crooked) as opposed to right (rectum) meaning straight. In modern legal usage, however, tort refers specifically to a certain category of civil wrongs. A tort can be defined as a civil wrong for which the remedy is a lawsuit seeking damages, and which is not merely a breach of contract or breach of trust. This definition implies four important exclusions:

(i) Torts are civil, not criminal, wrongs

Crimes are wrongs too, but they are not torts unless they also give rise to a private claim for damages. However, the same act can be both a crime and a tort — for instance, assault.

(ii) The wrong must be one for which the appropriate remedy is damages

Not all civil wrongs are torts. If the remedy is something else — like an injunction, the return of property, or a fixed penalty — it may not be classified as a tort. For example, blocking a public road is a civil wrong and may result in a legal action for an injunction by the Attorney General, but it is not considered a tort unless a particular individual suffers special harm and sues for damages.

(iii) A tort must not be exclusively a breach of contract

Contract law is treated separately from tort law. The rules and principles for each are often quite different. However, an act can sometimes be both a tort and a breach of contract. Two main situations illustrate this:

(a) When someone has a duty to act — regardless of a contract — and also contracts to perform that duty. For example, if someone borrows a chattel (personal item) and refuses to return it, that is a breach of contract (because of the promise to return it) and the tort of conversion, since detaining someone else’s property is wrong even without a contract.

(b) More complex are cases where the breach of a contract made with one person causes harm to another who is not a party to the contract. Normally, only someone who is part of a contract can sue under it (obligatio ex contractu). But sometimes, a third party can sue for tort (ex delicto) when they suffer harm from the contract’s breach.

For example, if X lends his horse to Y, and Y gives it to Z (a stable-keeper) to take care of, and Z negligently underfeeds the horse, Z may be liable not just to Y in contract, but also to X in tort — even though X had no contract with Z.

Similarly, if a father hires a doctor to treat his child, and the doctor acts negligently or fails to act, the doctor may be liable to the child in tort, not just to the father in contract, even though there is no direct contract between the child and the doctor.

These types of cases raise difficult questions in English law⁶ and do not yet have a simple, universally accepted answer.⁷ Whether a person who suffers damage from another’s breach of contract can sue in tort depends on the specific details of each case and the rules of the legal system.

Before forms of action were abolished in English law, the relationship between tort and contract was blurred. Some wrongs that were really just contract breaches were treated as torts through legal fictions, and vice versa. These so-called quasi-torts were used to fill gaps when contract remedies were undeveloped, but they were based more on historical quirks than on legal principle. For example, the action of assumpsit, originally a delictual (tort-based) action, was adapted to cover some contractual claims. Now that forms of action have been abolished, there is no need to maintain this confusing overlap between tort and contract.

(iv) The final category of civil wrongs not considered torts is breaches of trust

Historically, trust law developed in the Court of Chancery, while tort law grew in the common law courts. Even today, despite the merging of law and equity, breaches of trust are still treated separately. They fall under trust law, not tort law — just as contract breaches are treated under contract law. Torts, contracts and trusts developed independently and are governed by different principles, so they remain distinct areas of legal responsibility.

Some authors have defined a tort as the violation of a right in rem⁸ (a right enforceable against the world) that gives rise to an obligation to pay damages. While this is a neat way of distinguishing torts from contract rights (rights in personam⁹), it does not fully reflect how torts work in English law. Most torts do involve rights in rem, because rights in personam are usually created by contract. However, not all rights in personam are contractual.

For instance, if an innkeeper refuses to admit a guest, it may be a tort — even though it is simply the violation of a non-contractual personal right. Similarly, if a public official refuses or neglects to perform a statutory duty owed to someone, and that person suffers loss as a result, it may give rise to a tort action, even though it does not involve a right in rem or a contract.

Conclusion

The concept of obligation in law, derived from Roman legal traditions, goes beyond a mere duty; it signifies a legal bond (vinculum juris) between specific individuals, forming a proprietary right in personam. Obligations differ from general legal duties by being enforceable only between parties in a defined relationship, such as creditor and debtor. They are integral parts of a person’s estate, capable of being transferred, acquired or extinguished. The English legal system recognises four main sources of obligations: contractual, delictual (tort-based), quasi-contractual and innominate, each arising from different legal scenarios. A key distinction in this theory is between choses in possession and choses in action, the latter encompassing obligations as rights not presently held but legally claimable.

Tort-based obligations (obligationes ex delicto) emerge from civil wrongs causing harm, separate from breaches of contract or trust, and are typically remedied through damages. Though torts usually involve rights in rem, some tortious duties arise from statutory or relational duties without any contractual basis. Examples include liability of third parties like doctors or stablekeepers toward individuals with whom they share no contractual link. Historical overlaps between tort and contract — such as quasi-torts — have been clarified in modern law, reaffirming their distinct principles. Trust law, too, remains separate despite procedural convergence. In essence, obligations encompass a wide range of legally enforceable relationships that structure personal and proprietary rights in English law, forming a vital foundation of private legal responsibility.