Rights in Rem

  1. A right in rem is available against the world at large. (Rem = world).
  2. Example: I have a house. The people of the world have a duty not to interfere with my possession. Nobody has right to disturb my possession and enjoyment.
  3. I have money in my pocket. I can use my money as like. The world at large has no right to interfere with my possession.
  4. It is called “real right”. Converse this right; there is a duty upon every person of the world not to interfere with other’s rights.
  5. This right protects interest against the world at large.
  6. Patent right, copy right, etc. are the best examples for the rights in rem.
  7. All rights in rem are negative.
  8. It is available against an open or indefinite class of persons.
  9. The freedoms given in article 19 of the Indian constitution with its restrictions are the rights in rem.
  10. All “general offers” are “rights in rem”.

Rights in Personam

  1. A right in personam is available only against a particular person.
  2. Example: I let my house to Z-tenant. I have a right to receive rent from my tenant. This right to receive rent from my tenant. This right to receive rent is a right in personam. The rest of the world is not concerned with this right.
  3. y-debtor has to give me Rs. 5,000/-, who had taken from me as a hand-loan. I have the right in personam to receive back the sum of Rs. 5,000/- from X.
  4. It is also called as “personal right”. Converse this right, there is a duty imposed upon determinate individuals.
  5. This right protects an interest solely against determinate individuals.
  6. Purchase of good-will of business is the best example for the right in personam.
  7. All rights in personam are positive.
  8. It is available only against a specific person or persons.
  9. All easements are the rights in personam.
  10. All “specific offers” are “rights in personam”.

Remedies: Legal and Equitable

A remedy in the law involves the resolution of a lawsuit or an issue in a lawsuit, and provides redress to aggrieved parties or protects the integrity or efficiency of judicial proceedings. There are different types of remedies and many rules about when and how those remedies may be awarded, and like other rules, they reflect values in the society.
A remedy may be classified as legal, equitable, or declaratory, or as pretrial, trial, or appellate. If a remedy is declaratory, the plaintiff obtains a court ruling about his or her status, but does not recover tangible relief. Legal and equitable remedies are defined by contrasting them. One difference between the two is in their form. A legal remedy is a court judgment that a plaintiff (or another party, even the defendant) is entitled to something. Lawyers refer to legal actions as either in rem, relating to interests in property, or in personam, creating an obligation for a particular person.
Legal remedies usually involve an award of money damages to substitute for what the plaintiff lost. This may be for personal injury, which can include compensation for past and present medical expenses, lost earnings, and pain and suffering, all with adjustments for inflation and interest. Any award projecting future losses will be reduced to its present value in current monetary terms. A legal award will compensate for future losses because judgments are final awards. Thus, it is only fair to take into account damages both from the past and those that are likely to occur in the future. Damages that are speculative, however, will not be awarded. Money damages are also awarded to substitute for damaged property, or to compensate for harm to one’s reputation, or because someone did not perform contractual duties. A return of personal property (replevin) or land (ejectment) that the plaintiff owns is also a legal remedy.
Equitable remedies are court orders to a person or institution to do or not do something. As mentioned, these equitable actions are in personam. Equitable orders can cover myriad situations, such as court orders to officials to desegregate schools, to corporate actors to stop mergers or acquisitions, to development companies to stop construction pending an environmental review, to an employer to reinstate someone wrongfully fired, or to a contract breacher to keep his or her promise. All but the last of these court orders are referred to as injunctions. Where enforcement of a contract is ordered, the equitable remedy is called specific enforcement. Sometimes the court’s equitable order can involve the payment of money, such as orders to pay child support. Because the order is equitable, if circumstances change, one or the other of the parties can return to the judge and ask for a change in the order. A legal judgment, however, is final once the time for appeal has run out.
A simple example illustrates the difference between legal and equitable remedies. Suppose two people contract for the sale of a painting for $10,000. If the seller refuses to sell, the buyer has two options, to seek legal relief or equitable relief. Legal relief will compensate the buyer for his or her lost expectation in the value of the contract. The court will award him or her the difference between the value of the painting, minus the $10,000 he or she expected to pay. Thus, if the painting is worth $10,000, the buyer will not have any expectation of damages, and will merely be excused from having to pay $10,000. If the buyer has already paid, he or she can recover the seller’s unjust enrichment of $10,000, for which the seller gave no value—that is, the painting. If, however, the buyer had not paid, but the painting is actually worth $15,000, then he or she had made a good bargain and is entitled to the $5,000 expected gain.
If the plaintiff only wants the painting, he or she will need a court to order the defendant to convey the painting to the plaintiff. To get that equitable order, the plaintiff will have to show that the legal remedy is inadequate; therefore, equitable relief is not automatic. Typically, the plaintiff would be able to say that the legal remedy is inadequate if the painting were unique. Why must the plaintiff make such a showing to get equitable relief? The answer lies in part in the historical roots of actions at equity and in law.
Over a period of centuries in England, the delivery of justice evolved into two systems, equity courts and law courts. Each court had its own jurisdiction. If a plaintiff were in the wrong court, his or her suit would be dismissed and he or she would have to bring the suit again in the correct court. In the meantime, the statute of limitations might have run out, making his or her suit untimely. In the United States, the Federal Rules of Civil Procedure, first written in 1938, merged legal and equitable actions into one action, the civil action. The distinction between law and equity was thus abolished as a matter of jurisdiction for federal courts and in most states, but remains for some procedural issues, and at the remedial stage of the action.
The first consequence of this remaining distinction concerns the right to a jury trial. The Seventh Amendment to the United States Constitution states: “In Suits at common law … the right of trial by jury shall be preserved.” The exclusion of the word “equity” means that there are no federal jury trials in actions in which equitable relief is sought. If the action combines both legal and equitable remedies, a jury will determine the facts and the legal remedy, and a judge will determine the equitable remedy.
Another important consequence of whether a remedy is legal or equitable concerns the way remedies are enforced. Because an equitable order is an order from a judge to a person to do or not do something, if that person does not comply, he has disobeyed the judge. The judge can enforce the order with contempt. On the other hand, since a legal judgment is not an order to a person, if the defendant does not comply, he or she will not be subject to contempt. If the defendant does not comply with the judgment voluntarily, the plaintiff can take the judgment to a sheriff or marshall. Pursuant to the jurisdiction’s execution procedures, the officer will attach and sell the defendant’s assets to satisfy the judgment.
This enforcement mechanism illustrates another reason why courts typically require that the legal remedy be inadequate before an equitable remedy becomes appropriate. Legal remedies do not require the judge’s continued supervision, and thus preserve judicial resources. A court’s equitable contempt power can also be onerous, and should not be invoked frequently. Contempt puts a range of powerful tools into the hands of the judge. Contempt can be either civil or criminal. If the contempt is criminal, the contumacious defendant (who did not comply with the order) can be punished with imprisonment or a fine. The defendant will have a hearing in which it must be proven that he or she knew about the injunction and violated it, having had the capability to comply. At the hearing, the defendant will be entitled to criminal protections, such as the right against self-incrimination. If the possible imprisonment is more than six months, or if the possible fine is substantial, the defendant will be entitled to a jury trial.
If the contempt is civil, it is either coercive or compensatory. Coercive contempt is designed to make the defendant comply with the court’s order. The court might imprison or fine the defendant until he or she complies. The civil coercive imprisonment or fine is different from the criminal sanction. While a criminal sanction is determinate in time, a coercive contempt is indeterminate because it will last only as long as needed to make the defendant comply. In civil coercive contempt, the defendant “has the keys to the jail in his [or her] pocket.” If the defendant chooses not to comply, the sanction can be onerous.
With compensatory contempt, the disobedience may have already occurred, leaving nothing that can be remedied by coersion. The plaintiff can seek compensation at the contempt hearing for the damage caused by the defendant’s non-compliance with the order. Ironically, to get the original injunction, the legal remedy must have been inadequate. Once a plaintiff is seeking damages in a contempt hearing, however, the plaintiff is seeking what looks like a legal remedy—money damages—but without a jury trial. The irony here is only superficial, however, because the fact that damages would have been inadequate before the harm occurred does not mean that the plaintiff should go uncompensated if the defendant does not comply with the injunction.
Equitable remedies can be preliminary and temporary. A court can order a defendant to do or not do something pending a trial. Such temporary relief can be in the form of a temporary restraining order (TRO), which typically lasts only a matter of days, or in the form of a preliminary injunction, which will last until a final decision is reached after trial. An appellate court can also issue temporary equitable relief. It can order a stay (a reversal pending appeal) of a lower court’s order, or order an injunction pending appeal if one were denied by the trial court. To obtain a TRO, a preliminary injunction or a stay from a judge or an appellate court, the plaintiff must show that he or she is likely to succeed at trial or on appeal, that he or she will be irreparably harmed if the injunction or stay is not issued, that the defendant will not be harmed as much, and that the injunction or stay is in the public interest (or at least does not harm it).
Courts will often issue this temporary relief to preserve the status quo for the trial, but it is sometimes difficult to see where the status quo lies. For example, in December 2000, the U.S. Supreme Court in Bush v. Gore stayed the Florida Supreme Court’s order to the county election boards to count the presidential votes that machines had not registered. With that stay, the status quo might have been the certified machine tally showing that George W. Bush had won the electoral votes of Florida and thus the presidential election. Or the status quo might have been the ongoing count, which might have reversed Bush’s narrow margin of victory over Albert Gore. When the Supreme Court heard the appeal a few days later, it decided that the Florida Supreme Court’s order violated the Fourteenth Amendment’s due process and equal protection clauses because of problems in how to interpret the same type of ballots from county to county. The Court’s opinion said, however, that “The only disagreement is as to the remedy.” Five justices held that no standard for counting disputed ballots could be devised or could be devised in time; four justices would have ordered the counties to continue to count the votes. Thus the U.S. Supreme Court’s determination about the impracticability of an equitable remedy in Bush v. Gore may have affected the outcome of the 2000 presidential election.

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