Debt and Contract in the Common Law

Abstract

The difference between what a man already owns, or property, and what he is only entitled to claim, or obligation, is fundamental. A debt represents what a man is entitled to claim, but because of its proximity to a claim in detinue and for other reasons to be hereafter discussed, it is for many purposes treated as if it were something that a man already owns. The owner of a debt may not help himself by seizing what he is owed and must, like the owner of any chose in action, implement his right with the cooperation of the debtor or else by resort to the courts. Nevertheless, he who owns a debt enjoys a peculiarly “strong” right. This strength derives in part from the “real” nature of the right; by virtue of this a creditor, such as a lender or an unpaid vendor, is treated in some respects almost as if he were already the owner of what is owed, in particular a lender as if he went on owning the money lent to the borrower. And even in cases where a debt does not originate in a real transaction (as, for instance, a judgment-debt or income tax owed to the government, in which cases the creditor has not previously given that, or the equivalent of that, which he now claims) it is still “strong” because the object in obligatione, viz. money or other fungibles, is “indestructible” and therefore a debt cannot be frustrated by impossibility.