We explain what real rights and personal rights are, what their general characteristics are and how they are classified.
What are real and personal rights?
Real law is the effective legal relationship between a thing and a person . They are absolute rights because they are held against the whole world, that is, over the remaining subjects. The figure of the real right arises from Roman law and its value is given in opposition to personal rights, or also called credit.
Real rights are linked to actions that have an erga omnes validity (“regarding everyone” or “against everyone) , since the right that is claimed affects the thing and not the person. That is to say, the action will be instructed in correlation with the thing and not towards whom it will be exercised.
The personal right is the provision of a thing, fact or abstention . Consequently, in credit or personal law, the object is a benefit from the debtor. Personal rights are relative, since they can only be effective against certain subjects who are bound by a legal relationship.
These are personal actions that are directed towards one (debtor) or towards more specific subjects (debtors) who, from the beginning, are known and only they become passive subjects of the action. Consequently, the right that is demanded afflicts the person of the debtor who must consummate a contract.
Characteristics of real and personal rights :
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Purpose
Personal law requires a certain action of the debtor.
Real law applies to things ; the credit or personal requires a certain action of the debtor.
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Scope
Real rights are collective and indeterminate . In credit or personal rights there is an individually determined passive subject.
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Application
The real right can be exercised and made effective against everyone , while the personal right can only be made effective against the debtor and his heirs.
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Effectiveness
Real rights become effective with their exercise , while personal rights become effective when the creditor’s right is satisfied.
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Extinction
The personal right is not extinguished if it has things as an indirect object and these perish.
The real right is extinguished when the thing on which it falls perishes , while in personal law, when it has things as an indirect object, the perishment of these does not extinguish it, subsisting the obligation of compliance in the form of compensation for damages.
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Provision and execution
Personal rights presume a legal relationship between a creditor party and a debtor party . The former may sue the debtor, resulting in a liability for the latter. It is a relationship between subjects.
The real rights are executed with respect to a certain thing (domain, usufruct or inheritance). They may reside, for example, in the transfer of a real right from one person to another (such as ownership of property).
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Number
Personal rights are countless , since each of the parties can simultaneously create relationships that they consider beneficial through the principle of autonomy of will, the only restriction being that they operate in law.
Meanwhile, real rights can only be implemented by law , consequently their number will be restricted or closed. The elaboration of new real rights different from those considered by law is prohibited .
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Contract
In real law, contracts require the delivery of one thing for it to be perfect.
Personal rights are unlimited and enduring , therefore the parties will establish everything that concerns their interests based on the contract. In real law, contracts require the delivery of a thing so that its perfection can be confirmed.
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immediacy
Real rights provide extensive and immediate power over the thing on which they are founded , both for enjoyment and disposition and for prosecution. Personal rights, on the other hand, do not have the right of prosecution and their times are tied to what is established by the parties in the corresponding contract.
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Classification
Types of real rights:
- Real right of guarantee. In the case of a mortgage or pledge.
- Real right of enjoyment. As for example in usufruct, which is the use and enjoyment of something belonging to another with the obligation to maintain and preserve its form. It is also the case of the easement or encumbrance of one property over another. It can occur when to access a property it is necessary to cross another, among other situations.
- Real right of preferential acquisition. For example, when one of the owners of a property wants to sell his part and there is a purchase preference of the other owners in relation to other people.
Types of personal rights:
- Personal rights themselves. When the obligations occur between an active subject and a passive subject without further details.
- Credit rights. When the active subject or creditor, based on his credit, obtains the possibility of executing an action against the passive subject or debtor.
- Obligations. When the taxpayer or debtor is responsible for paying a tribute to which he is obliged.
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