Introduction to Real Right

In order to know the meaning of the term right in rem we are going to proceed to discover, first of all, the etymological origin of the two words that give it shape:

-Law derives from Latin, exactly from “directus”, which means “the right”.

-Real, on the other hand, also comes from Latin. In his case of “regalis”, which can be translated as “in relation to the king”.

A right is the power to claim or do what the law stipulates in favor of one. It is known as real right, in this framework, the right linked to a thing that arises through a legal relationship and that is effective against all.

By falling on one thing, real law is opposed to personal law. It is possible to differentiate between principal rights in rem (such as property rights) and ancillary rights in rem (such as a mortgage).

According to various jurists, real law is based on a person ‘s direct authority over the thing: it is not necessary for anyone else to intervene. There is, therefore, a direct or immediate relationship.

A mortgage, however, shows that there are rights in rem without immediacy. That is why there are doctrines that understand real law not as a relationship between an active subject and a passive subject, but as a passive obligation that supposes the imposition of the duty to respect it. From there arises the effectiveness of real law against all.

It can be said that real law enshrines a relationship between the subject and the thing and establishes a negative obligation (strangers to the law cannot invade the immediate link that exists between the subject and the thing in question).

Real law, among other words, revolves around the direct legal links of human beings with property, protected by a legal system. Real rights are protected by judicial resources that protect these relationships.

In current legislation, the term in question is spoken in the plural. Thus, reference is made to real rights, of which a series of interesting aspects are established that are worth knowing and taking into account:

-There are different groups of real rights such as the real rights of enjoyment, the real rights of provisional protection, those of preferential acquisition, those of definitive protection or those of guarantee.

-When all these types of real rights are set forth in the law, both the pertinent powers and the prohibitions that exist around them are established in relation to them.

-No less important is knowing that a real right is lost when a person ceases to be the owner of that right, whether voluntarily or not.

-In addition to those already mentioned, among the most significant rights in rem are trial and retraction, flight and sub-building, real estate right or usufruct right.

-In Spain, it must be taken into account that real rights take on special interest and attention in what are called foral territories, for example.

Real Right