Chose
 | This article is largely based on an article in the out-of-copyright Encyclopædia Britannica Eleventh Edition, which was produced in 1911. (January 2011) |
Chose (pronounced: /ʃoʊz/, French for "thing") is a term used in common law tradition in different senses. A 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 those senses is practically obsolete, and it is now used only in the phrases chose in action and chose in possession.[1]
Chose in action
A chose in action is essentially a right to sue. It is an intangible personal property right recognized 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.[2][3]
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
- 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.[1] This was later updated by the Law of Property Act 1925 s136.[1]
Chose in possession
A chose in possession is an item of tangible personal property that can be physically possessed by the owner and can be transferred by delivery. Possession of a chose in possession is prima facie evidence of ownership.[citation needed]
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.[1]
Notes
- ^ a b c d Chisholm 1911, p. 271.
- ^ Canadian Department of Justice. Bijural Terminology Records [dead link]
- ^ Litvin, Michael (2009-10-08). "Things in action". LII / Legal Information Institute. Retrieved 2016-07-13.
References
- This article incorporates text from a publication now in the public domain: Chisholm, Hugh, ed. (1911). "Chose". Encyclopædia Britannica. Vol. 6 (11th ed.). Cambridge University Press. p. 271.
