The distinction between real rights and personal rights has its foundation in Roman procedural law, dividing remedies into real actions and personal actions.
Personal rights and real rights have particular distinctive characteristics, which assists us to classify which is which, although this was not to act as exclusive classification. The distinctive characteristics are seen in the following areas namely; in the object, content, remedies, origin, absoluteness, preference and publicity of the right.
With regard to personal rights, the object of the right is performance. Performance may be giving something to someone, not doing something or to do something. This could be in respect of limitation on ownership through law; statutory limitations (e.g. Firearms Control Act, licence required to have possession of a firearm) and neighbour law principles (the law expects a degree of tolerance between neighbours, thus limiting owners exercising their …show more content…
Regarding content, a personal right bearer only has the right to claim performance from a specific person (e.g. servitude), and a real right bearer has a direct claim to and the right to discard the thing (e.g. ownership).
Remedies, a real right bearer can impose their right by means of a real action. Eg the real right holder can institute action against any person who is unlawfully in control of a thing, to return the thing if the real right bearer is the owner of the thing.
The bearer of a personal right can impose their right by way of personal action like condictio furtive, protection of ownership. E.g. recovering what was stolen or the value of what was stolen if not available from the person or their heirs.
Personal rights come into fruition through obligations, for example through a contract or delict, whereas origin of real rights are based on legal facts and not through obligation, for example delivery of
Personal rights and real rights have particular distinctive characteristics, which assists us to classify which is which, although this was not to act as exclusive classification. The distinctive characteristics are seen in the following areas namely; in the object, content, remedies, origin, absoluteness, preference and publicity of the right.
With regard to personal rights, the object of the right is performance. Performance may be giving something to someone, not doing something or to do something. This could be in respect of limitation on ownership through law; statutory limitations (e.g. Firearms Control Act, licence required to have possession of a firearm) and neighbour law principles (the law expects a degree of tolerance between neighbours, thus limiting owners exercising their …show more content…
Regarding content, a personal right bearer only has the right to claim performance from a specific person (e.g. servitude), and a real right bearer has a direct claim to and the right to discard the thing (e.g. ownership).
Remedies, a real right bearer can impose their right by means of a real action. Eg the real right holder can institute action against any person who is unlawfully in control of a thing, to return the thing if the real right bearer is the owner of the thing.
The bearer of a personal right can impose their right by way of personal action like condictio furtive, protection of ownership. E.g. recovering what was stolen or the value of what was stolen if not available from the person or their heirs.
Personal rights come into fruition through obligations, for example through a contract or delict, whereas origin of real rights are based on legal facts and not through obligation, for example delivery of