recognize the validity of the release. An example of a situation of this kind is found in the case of a partial assignment. At law at least in those jurisdictions in which the partial assignee's rights, etc., are purely equitable 32- the assignor has a legal power to extinguish by release the whole claim. In equity, however, the claim is not recognized as extinguished, i. e., the partial assignee can recover from the debtor the amount assigned to him.33 The power of the assignor to release the claim in such a case is therefore exclusively legal.34

Finally, the immunities of the assignee and their correlative disabilities 35 are concurrently legal and equitable. Again a single concrete example must suffice for illustration. Suppose - after notice to the debtor of the assignment — the assignor were to execute under seal a release of the claim. This release would be without jural effect upon the validity of the claim, either at law or in equity. The assignor has no power, i. e., is under a disability, both at law and in equity, to extinguish the claim; the assignee enjoys an immunity from having the claim extinguished in this way. If the immunity of the assignee, with its correlative disability of the assignor, were exclusively legal, the following situation would result: At law, since the assignor lacked the power to release, the release would be invalid and the claim still in existence; in equity, on the other hand, since by hypothesis the immunity in question does not exist, and so a power in the assignor to give a valid release is recognized, the claim would no longer be valid. Under such circumstances the chancellor would both refuse to aid in the assertion of the assignee's legal rights and also in a proper case compel the assignee to refrain from exercising his legal rights and even to surrender them.36 The other immunities of the assignee ―e. g., from having the assignor

* Whether the partial assignee's ownership of the claim is concurrently legal and equitable or exclusively equitable is discussed later.

" Ames, Cases on Trusts, 2 ed., 64.

"This was the situation in the case of total assignments at one period of the development of our law. The assignor could at law give a valid release, which however was not regarded as valid in equity.

25 23 YALE L. J. 30.

36 Compare the situation which results when a cestui "releases" a claim against a third person held in trust. Equity would enjoin the trustee from asserting the claim at law, as well as refuse him equitable aid if he asked for it in what would otherwise be a proper case for equitable relief. The release would be valid in equity but not at law.

or anyone else transfer the claim to others 37 prove to be concurrently legal and equitable if we examine them closely. Time and space, however, do not permit of such examination.

From every point of view, then, we may say with the eminent judge already quoted, "It is the same at law" as it is in equity; "there is no hostility between the jurisdictions on this subject."



Now that the conclusions set forth in my original article have been carefully restated and the misconceptions due to my learned critic's misunderstanding of them removed, we may turn our attention to the argument against their soundness. As already stated, it is based in part upon certain assumptions concerning the "essential characteristic" or "fundamental characteristic" of "equitable rights," "equitable obligations" or "equitable ownership" as distinguished from "legal rights," "legal ownership" or "legal titles." Professor Williston says:

"In discussing equitable rights there is always danger of confusion between the essential character of the right and the tribunal in which it is enforced. The fundamental characteristic of an equitable obligation is that it binds primarily a particular person, and binds others only when their relation to that person is such that in conscience they should be subject to his duties. The Court of Chancery has been the tribunal where such duties have ordinarily been enforced. But even in jurisdictions where the distinction between legal and equitable courts is still preserved, courts of law to-day enforce a great variety of equitable rights and duties without thereby changing their essential characteristics. To call such rights legal in antithesis to equitable merely because a court of law enforces them, is a natural tendency but a dangerous one. Of course no such confusion exists in the argument of Professor Cook. His view seems to be that the extent of the powers of the assignee of a chose in action involves the conclusion that he has more than that personal right which is typical of equitable ownership and should rather be designated as a legal owner, his ownership being qualified, to be sure, by certain limitations, as legal ownership often is." 39

37 If no notice has been given to the debtor, the problem of the rule in Dearle v. Hall, 3 Russell 1, 48 (1827), is raised. See discussion below.

38 The method of sanctioning the particular jural relation may well be different, at law and in equity, as has been pointed out.

39 30 HARV. L. REV. 97-98. The italics are those of the present writer.

If it be "confusion" to attach to the word "right" the adjective "legal" when the right in question is recognized and sanctioned by a court of law, and the adjective "equitable" when the right is recognized and sanctioned by a court of equity,40 I must plead guilty to being hopelessly confused, for that is precisely the way in which I have always used these terms. This seems to me to be not only their natural meaning but also the only really useful one to attach to them. To me the confusion appears to lie in the minds of those who assert that there is some "fundamental" or "essential" characteristic of "equitable rights"— aside from the fact that they are recognized and sanctioned by courts of equity — which differentiates them from all other classes of "rights" and requires us to regard them not merely as equitable but as exclusively equitable and not legal, even after they have come to be fully recognized and sanctioned by courts of law as well as by courts of equity. If I understand Professor Williston, just that is what he wishes us to say concerning the assignee's "rights"; they are equitable, not legal.“

To deal with the matter adequately we must go somewhat more fully into the relations between law and equity and "legal" and “equitable" jural relations than we have done. As Professor Hohfeld has shown in the article previously referred to,42 all genuine jural relations in our system of law fall into two classes. The first consists of jural relations which are concurrently legal and equitable; 43 the second of those which are exclusively equitable.44 What appears at first sight to be a third class, viz., jural relations exclusively legal, is found upon analysis to consist of jural relations which are, so far as genuine law is concerned, only apparent. That is, if we take our

40 In states where law and equity are "merged," the distinction to-day between the court of common law and the court of equity is chiefly between a tribunal with a jury and one without, with a different kind of appellate review, at least in cases where the sole relief sought is the payment of money. The equitable decree for the payment of money is enforced precisely like the common law judgments — in fact both are called judgments under the code procedure.

41 30 HARV. L. REV. 99.

2 Note 20, supra.

43 In the sense set forth above.

4 The classification here adopted has of course no connection with the well-known classification adopted by Story and others dividing the jurisdiction of equity into concurrent, exclusive, and auxiliary.

45 Hohfeld, 11 MICH. L. REV. 569.

whole system of law into account, we find that every exclusively legal jural relation is in conflict with some paramount exclusively equitable jural relation which has the effect of annulling the legal jural relation in question.46 If this were not true, i. e., if the equitable relation properly enforced did not in effect supersede and render of no effect the legal relation in question, the latter would not be exclusively legal but concurrently legal and equitable, i. e., would be recognized and sanctioned by both courts.

It follows that rights and other jural relations which are commonly called and assumed to be "legal" as distinguished from "equitable" are really of two kinds. The first are genuine jural relations, concurrently legal and equitable, i. e., recognized and sanctioned by both law and equity; the second are only apparent and are not genuine jural relations, since, being exclusively legal, they are in conflict with some paramount exclusively equitable jural relation which has the effect of annulling them.


Unfortunately the terminology in current use is not based upon a careful analysis of the situation. Professor Williston's misunderstanding of my former article in which, perhaps unfortunately, I forbore introducing new terms has convinced me that no progress can be made without the adoption of a terminology adequate to express clearly the relations between legal and equitable jural relations as they actually exist. It seems desirable, therefore, to adopt the phrases suggested by Professor Hohfeld, viz., "concurrently legal and equitable," "exclusively equitable" and "exclusively legal" in classifying jural relations. That will be done in what follows. It must constantly be borne in mind that a jural relation which is exclusively legal is not a genuine jural relation at all; also that to say merely that a given relation is "legal" or equitable" does not mean that it is exclusively so it may be


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Coming now to the discussion of the passage quoted from Professor Williston's argument, it is obvious of course that he does not mean by "equitable right" a jural relation that is recognized and sanctioned exclusively by a court of equity, for he insists upon calling rights enforced by courts of law "equitable, not legal." A right which he would call "equitable, not legal" might, therefore, in the 46 Many concrete illustrations are given in 11 MICH. L. REV. 555. Of course if the appeal is not properly made to the equity court, the action at law prevails.

terminology here adopted be either concurrently legal and equitable or exclusively equitable.47

An attempt on my part to formulate for my own satisfaction the argument of my learned friend into a series of definite propositions has yielded the following result. I have reached it by considering both the general trend of his article and particular phrases used at different points in it. Except where quotation marks are used, the phraseology is mine. I can only hope that it does not misrepresent in any material way what he has said.

1. "An equitable ownership" or "an equitable title" is "an equitable right" with a correlative "equitable obligation."

2. Every "equitable right" is "primarily personal,” i. e., it has the "fundamental" or "essential characteristic" that "it binds primarily a particular person, and binds others only when their relation to that person is such that in conscience they should be subject to his duties." 48

3. Not only do all "equitable rights" have this characteristic, but every "right" which has this characteristic is "equitable, not legal," no matter in what court it is recognized and sanctioned."

4. The "right" or "ownership" of an assignee of a chose in action has this characteristic and is therefore "equitable, not legal" even though now fully recognized and sanctioned by courts of law.

It is apparent that to Professor Williston "rights" are either legal or equitable. The conception of "rights" as concurrently legal and equitable seems to have no place in his analysis.50 It will at once be seen that we are dealing, in part at least, with a question of terminology. However, this difference in terminology is not merely a question of choosing one rather than another of a number of non-significant labels, any one of which would serve the purpose equally well. Behind terminology lie concepts; behind confusion in terminology lies confusion in concepts.

As Professor Williston himself says:

47 Possibly it might be exclusively legal if it had the "fundamental characteristic❞ described but were recognized and sanctioned only in a court of law.

48 30 HARV. L. REV. 97.

49 This seems to be the fair meaning of Professor Williston's argument, although I think it is not expressly stated.

50 This, although not explicitly stated, seems fairly to be inferred from the whole argument and such phrases "as legal in antithesis to equitable" (30 HARV. L. REV. 97) and similar statements.

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