Jus Ad Rem in United States

Jus Ad Rem Definition

(Lat.) A right which belongs to a person only mediately and relatively, and has for its foundation an obligation incurred by a particular person. The jus in re, by the effect of its very nature, is independent and absolute, and is exercised per se ipsum, by applying it to its object; but the jus ad rem is the faculty of demanding and obtaining the performance of some obligation by which another is bound to me ad aliquid dandum, vel faciendum, vel praestandum. Thus, if I have the ownership of a horse, the usufruct of a flock of sheep, the right of habitation of a house, a right of way over your land, etc., my right in the horse, in the flock of sheep, in the house, or the land, belongs to me directly, and without any intermediary; it belongs to me absolutely, and independently of any particular relation with another person ; I am in direct and immediate relation with the thing itself which forms the object of my right, without reference to any other relation. This constitutes a jus in re. If, on the other hand, the horse is lent to me by you, or if I have a claim against you for a thousand dollars, my right to the horse or to the sum of money exists only relatively, and can only be exercised through you; my relation to the object of the right is mediate, and is the result of the immediate relation of debtor and creditor existing between you and me. This is a jus ad rem. Every jus in re, or real right, may be vindicated by the actio in rem against him who is in possession of the thing, or against any one who contests the right. It has been said that the words jus in re of the civil law convey the same idea as “thing in possession” at common law. This is an error, arising from a confusion of ideas as to the distinctive characters of the two classes of rights. Nearly all the common-law writers seem to take it for granted that by the jus in re is understood the title or property in a thing in the possession of the owner; and that by the jus ad rem is meant the title or property in a thing not in the possession of the owner. But it is obvious that possession is not one of the elements constituting the jus in re, although possession is generally, but not always, one of the incidents of this right, yet the loss of possession does not exercise’ the slightest influence on the character of the right itself, unless it should continue for a suflBcient length of time to destroy the right altogether by prescription. In many instances the jus in re is not accompanied by possession at all; the usuary is not entitled to the possession of the thing subject to his use; still, he has a jus in re. So with regard to the right of way, etc. See “Dominium.” A mortgage is considered by most writers as a jus in re; but it is clear that it is a jus ad rem. It is granted for the sole purpose of securing the payment of a debt, or the fulfillment of some other personal obligation. In other words, it is an accessory to a principal obligation and corresponding right. It can have no separate and independent existence. The immovable on which I have a mortgage is not the object of the right, as in the case of the horse of which I am the owner, or the house of which I have the right of habitation, etc. The true object of my right is the sum of money due to me, the payment of which I may enforce by obtaining a decree for the sale of the property mortgaged. 2 Marcade, 350 et seq.

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(Lat.) A right which belongs to a person only mediately and relatively, and has for its foundation an obligation incurred by a particular person. The jus in re, by the effect of its very nature, is independent and absolute, and is exercised per se ipsum, by applying it to its object; but the jus ad rem is the faculty of demanding and obtaining the performance of some obligation by which another is bound to me ad aliquid dandum, vel faciendum, vel praestandum. Thus, if I have the ownership of a horse, the usufruct of a flock of sheep, the right of habitation of a house, a right of way over your land, etc., my right in the horse, in the flock of sheep, in the house, or the land, belongs to me
directly, and without any intermediary; it belongs to me absolutely, and independently of any particular relation with another person ; I am in direct and immediate relation with the thing itself which forms the object of my right, without reference to any other relation. This constitutes a jus in re. If, on the other hand, the horse is lent to me by you, or if I have a claim against you for a thousand dollars, my right to the horse or to the sum of money exists only relatively, and can only be exercised through you; my relation to the object of the right is mediate, and is the result of the immediate relation of debtor and creditor existing between you and me. This is a jus ad rem. Every jus in re, or real right, may be vindicated by the actio in rem against him who is in possession of the thing, or against any one who contests the right. It has been said that the words jus in re of the civil law convey the same idea as “thing in possession” at common law. This is an error, arising from a confusion of ideas as to the distinctive characters of the two classes of rights. Nearly all the common-law writers seem to take it for granted that by the jus in re is understood the title or property in a thing in the possession of the owner; and that by the jus ad rem is meant the title or property in a thing not in the possession of the owner. But it is obvious that possession is not one of the elements constituting the jus in re, although possession is generally, but not always, one of the incidents of this right, yet the loss of possession does not exercise’ the slightest influence on the character of the right itself, unless it should continue for a suflBcient length of time to destroy the right altogether by prescription. In many instances the jus in re is not accompanied by possession at all; the usuary is not entitled to the possession of the thing subject to his use; still, he has a jus in re. So with regard to the right of way, etc. See “Dominium.” A mortgage is considered by most writers as a jus in re; but it is clear that it is a jus ad rem. It is granted for the sole purpose of securing the payment of a debt, or the fulfillment of some other personal obligation. In other words, it is an accessory to a principal obligation and corresponding right. It can have no separate and independent existence. The immovable on which I have a mortgage is not the object of the right, as in the case of the horse of which I am the owner, or the house of which I have the right of habitation, etc. The true object of my right is the sum of money due to me, the payment of which I may enforce by obtaining a decree for the sale of the property mortgaged. 2 Marcade, 350 et seq.

This definition of Jus Ad Rem is based on The Cyclopedic Law Dictionary. This entry needs to be proofread.