Chose (English law)
Encyclopedia
Chose is a term used in common law
tradition in different senses. Chose local is a thing annexed to a place, such as a mill. A chose transitory is something movable, that can be carried from place to place. However, "chose" in these senses is practically obsolete, and it is now used only in the phrases chose in action and chose in possession.
personal property
right recognised and protected by the law, that has no existence apart from the recognition given by the law, and that confers no present possession of a tangible
object. Another term is a thing in action.It is past tense.
A chose in action, sometimes called a chose in suspense, in its more limited meaning, denotes the right to enforce payment of a debt
by legal proceedings, obtain money by way of damages
for contract
, or receive recompense for a wrong. Less accurately, money that could be recovered is frequently called a chose in action, as is also sometimes the document that represents a title to a chose in action, such as a bond
or a policy of insurance
—though strictly it is only the right to recover the money. Choses in action were, before the Judicature Acts
, either legal or equitable. Where the chose could be recovered only by an action at law, as a debt (whether arising from contract or tort
), it was termed a legal chose in action; where the chose was recoverable only by a suit in equity, as a legacy or money held upon a trust, it was termed an equitable chose in action. Before the Judicature Acts, a legal chose in action was not assignable, i.e., the assignee could not sue
at law in his own name. To this rule there were two exceptions: (1) the crown had always been able to assign choses in action that are certain, such as an ascertained debt, but not those that are uncertain; and (2) assignments valid by operation of law, e.g., on marriage
, death
, or bankruptcy
. On the other hand, however, by the law merchant, which is part of the law of England, and which disregards the rules of common law
, bills of exchange were freely assignable. The consequence was that, with these and certain statutory exceptions (e.g., actions on policies of insurance), an action on an assigned chose in action must have been brought at law in the name of the assignor, though the sum recovered belonged in equity to the assignee. All choses in action being in equity assignable, except those altogether incapable of being assigned, in equity the assignee might have sued in his own name, making the assignor a party as co-plaintiff
or as defendant
. The Judicature Acts made the distinction between legal and equitable choses in action of no importance. The Judicature Act of 1873, s. 25 (6), enacted that the legal right to a debt or other legal chose in action could be passed by absolute assignment in writing under the hand of the assignor. This was later updated by the Law of Property Act 1925
s136.
that can be physical possessed by the owner and can be transferred by delivery. Possession of a chose in possession is prima-facie evidence of ownership.
Chose in possession is opposed to chose in action, and denotes not only the right to enjoy or possess a thing, but also the actual or constructive enjoyment of it. The possession may be absolute or qualified. It is absolute when the person is fully and completely the proprietor or owner of the thing; it is qualified when he "has not an exclusive right, or not a permanent right, but a right that may sometimes subsist and at other times not subsist," as in the case of animals ferae naturae
(feral
by nature). A chose in possession is freely transferable by delivery. Previous to the Married Women's Property Act of 1882, a wife's choses in possession became vested in her husband immediately upon her marriage, while her choses in action did not belong to her husband until he had converted them to possession. However, this difference is now practically obsolete.
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
tradition in different senses. Chose local is a thing annexed to a place, such as a mill. A chose transitory is something movable, that can be carried from place to place. However, "chose" in these senses is practically obsolete, and it is now used only in the phrases chose in action and chose in possession.
Chose in action
A chose in action is essentially a right to sue. It is an intangibleIntangible asset
Intangible assets are defined as identifiable non-monetary assets that cannot be seen, touched or physically measured, which are created through time and/or effort and that are identifiable as a separate asset...
personal property
Personal property
Personal property, roughly speaking, is private property that is moveable, as opposed to real property or real estate. In the common law systems personal property may also be called chattels or personalty. In the civil law systems personal property is often called movable property or movables - any...
right recognised and protected by the law, that has no existence apart from the recognition given by the law, and that confers no present possession of a tangible
Tangible property
Tangible property in law is, literally, anything which can be touched, and includes both real property and personal property , and stands in distinction to intangible property....
object. Another term is a thing in action.It is past tense.
A chose in action, sometimes called a chose in suspense, in its more limited meaning, denotes the right to enforce payment of a debt
Debt
A debt is an obligation owed by one party to a second party, the creditor; usually this refers to assets granted by the creditor to the debtor, but the term can also be used metaphorically to cover moral obligations and other interactions not based on economic value.A debt is created when a...
by legal proceedings, obtain money by way of damages
Damages
In law, damages is an award, typically of money, to be paid to a person as compensation for loss or injury; grammatically, it is a singular noun, not plural.- Compensatory damages :...
for contract
Contract
A contract is an agreement entered into by two parties or more with the intention of creating a legal obligation, which may have elements in writing. Contracts can be made orally. The remedy for breach of contract can be "damages" or compensation of money. In equity, the remedy can be specific...
, or receive recompense for a wrong. Less accurately, money that could be recovered is frequently called a chose in action, as is also sometimes the document that represents a title to a chose in action, such as a bond
Bond (finance)
In finance, a bond is a debt security, in which the authorized issuer owes the holders a debt and, depending on the terms of the bond, is obliged to pay interest to use and/or to repay the principal at a later date, termed maturity...
or a policy of insurance
Insurance
In law and economics, insurance is a form of risk management primarily used to hedge against the risk of a contingent, uncertain loss. Insurance is defined as the equitable transfer of the risk of a loss, from one entity to another, in exchange for payment. An insurer is a company selling the...
—though strictly it is only the right to recover the money. Choses in action were, before the Judicature Acts
Judicature Acts
The Judicature Acts are a series of Acts of Parliament, beginning in the 1870s, which aimed to fuse the hitherto split system of courts in England and Wales. The first two Acts were the Supreme Court of Judicature Act 1873 and the Supreme Court of Judicature Act 1875 The Judicature Acts are a...
, either legal or equitable. Where the chose could be recovered only by an action at law, as a debt (whether arising from contract or tort
Tort
A tort, in common law jurisdictions, is a wrong that involves a breach of a civil duty owed to someone else. It is differentiated from a crime, which involves a breach of a duty owed to society in general...
), it was termed a legal chose in action; where the chose was recoverable only by a suit in equity, as a legacy or money held upon a trust, it was termed an equitable chose in action. Before the Judicature Acts, a legal chose in action was not assignable, i.e., the assignee could not sue
Lawsuit
A lawsuit or "suit in law" is a civil action brought in a court of law in which a plaintiff, a party who claims to have incurred loss as a result of a defendant's actions, demands a legal or equitable remedy. The defendant is required to respond to the plaintiff's complaint...
at law in his own name. To this rule there were two exceptions: (1) the crown had always been able to assign choses in action that are certain, such as an ascertained debt, but not those that are uncertain; and (2) assignments valid by operation of law, e.g., on marriage
Marriage
Marriage is a social union or legal contract between people that creates kinship. It is an institution in which interpersonal relationships, usually intimate and sexual, are acknowledged in a variety of ways, depending on the culture or subculture in which it is found...
, death
Death
Death is the permanent termination of the biological functions that sustain a living organism. Phenomena which commonly bring about death include old age, predation, malnutrition, disease, and accidents or trauma resulting in terminal injury....
, or bankruptcy
Bankruptcy
Bankruptcy is a legal status of an insolvent person or an organisation, that is, one that cannot repay the debts owed to creditors. In most jurisdictions bankruptcy is imposed by a court order, often initiated by the debtor....
. On the other hand, however, by the law merchant, which is part of the law of England, and which disregards the rules of common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
, bills of exchange were freely assignable. The consequence was that, with these and certain statutory exceptions (e.g., actions on policies of insurance), an action on an assigned chose in action must have been brought at law in the name of the assignor, though the sum recovered belonged in equity to the assignee. All choses in action being in equity assignable, except those altogether incapable of being assigned, in equity the assignee might have sued in his own name, making the assignor a party as co-plaintiff
Plaintiff
A plaintiff , also known as a claimant or complainant, is the term used in some jurisdictions for the party who initiates a lawsuit before a court...
or as defendant
Defendant
A defendant or defender is any party who is required to answer the complaint of a plaintiff or pursuer in a civil lawsuit before a court, or any party who has been formally charged or accused of violating a criminal statute...
. The Judicature Acts made the distinction between legal and equitable choses in action of no importance. The Judicature Act of 1873, s. 25 (6), enacted that the legal right to a debt or other legal chose in action could be passed by absolute assignment in writing under the hand of the assignor. This was later updated by the Law of Property Act 1925
Law of Property Act 1925
The Law of Property Act 1925 is a statute of the United Kingdom Parliament. It forms part of an interrelated programme of legisation introduced by Lord Chancellor Lord Birkenhead between 1922 and 1925. The programme was intended to modernise the English law of real property...
s136.
Chose in possession
A chose in possession is an item of tangible personal propertyPersonal property
Personal property, roughly speaking, is private property that is moveable, as opposed to real property or real estate. In the common law systems personal property may also be called chattels or personalty. In the civil law systems personal property is often called movable property or movables - any...
that can be physical possessed by the owner and can be transferred by delivery. Possession of a chose in possession is prima-facie evidence of ownership.
Chose in possession is opposed to chose in action, and denotes not only the right to enjoy or possess a thing, but also the actual or constructive enjoyment of it. The possession may be absolute or qualified. It is absolute when the person is fully and completely the proprietor or owner of the thing; it is qualified when he "has not an exclusive right, or not a permanent right, but a right that may sometimes subsist and at other times not subsist," as in the case of animals ferae naturae
Ferae naturae
Unowned property refers to tangible, physical things which are capable of being reduced to being property owned by an individual, but are not owned by anyone. Nearly every piece of land on the Earth is property and has an owner...
(feral
Feral
A feral organism is one that has changed from being domesticated to being wild or untamed. In the case of plants it is a movement from cultivated to uncultivated or controlled to volunteer. The introduction of feral animals or plants to their non-native regions, like any introduced species, may...
by nature). A chose in possession is freely transferable by delivery. Previous to the Married Women's Property Act of 1882, a wife's choses in possession became vested in her husband immediately upon her marriage, while her choses in action did not belong to her husband until he had converted them to possession. However, this difference is now practically obsolete.