- In Rem
- Latin: regarding a thing; proprietary in nature; a right or judgment related to the use or ownership of an item of property.
Latin: All legal rights are either in personam or in rem.
In rem rights are proprietary in nature; related to the ownership of property and not based on any personal relationship, as is the case with in personam rights.
Comments made by one of the lawyers in argument in Wakefield Corporation v Cooke (1904 Appeal Cases, page 31) are often cited as authority on in rem:
"A judgment in rem I conceive to be an adjudication pronounced (as indeed its name denotes) upon the status of some particular subject-matter, by a tribunal having competent authority for that purpose. Such an adjudication, being a solemn declaration from the proper and accredited quarter that the status of the thing adjudicated upon is as declared, concludes all persons from saying that the status of the thing ... was not such as declared...."
Byrne’s 1923 description:
"In the Roman law, from which they are taken, the expressions in rem and in personam were always opposed to one another, an act or proceeding in personam being one done or directed against or with reference to a specific person was one done or directed with reference to no specific person, and consequently against or with reference to all who would it might concern or all of the world.
Closely associated with the concept of estoppel and res judicata as stated by Spencer, Bower and Turner in the 2nd edition of The Doctrine of Res judicata as follows:
"... that the alleged judicial decision was what in law is deemed such; that the particular judicial decision relied upon was in fact pronounced, as alleged; that the judicial tribunal pronouncing the decision had competent jurisdiction in that behalf; that the judicial decision was final; that the judicial decision was, or involved, a determination of the same question as that sought to be controverted in the litigation in which the estoppel is raised; (and) that the parties to the judicial decision, or their privies, were the same persons as the parties to the proceeding in which the estoppel is raised, or their privies, or that the decision was conclusive in rem."
Divorce actions have always perplexed legal scholars intent on pigeon-holing every case as either in rem or in personam, particularly those divorce actions based on spousal misconduct such as adultery or cruelty. A divorce judgment is in personam in that it does indeed restrict its sting to the parties. It must be as between two married persons only.
But a divorce judgment almost always affects the legal rights of third-persons, if not children then creditors.
In the 1968 and aptly named case of Love v Love (2 DLR 3d 273), Justice Ferguson of the Ontario High Court of Justice wrote:
"A judgment for divorce on the grounds of adultery between A and B makes the issue of adultery res judicata. It is a judgment in rem; that is to say one that is good not only between the parties and their privies, but good as against the world and this is so because it is a judgment affecting status."
CATEGORIES AND TOPICS:
This term applies to the following areas of law and categories;