THE RELATIVE AND PERSONAL CHARACTER OF THE OBLIGATION
THE RELATIVE AND PERSONAL CHARACTER OF THE OBLIGATION

Summary/Abstract: Obligations represent one of the pillars of civil law, along with persons, family and assets.Debt rights are, like real rights, subjective rights and therefore they are opposable erga omnes, a prerogative that consists in the right of the owner to protect his right in relation to any person. Their object and mode of exercise give them a specific regime, not the opposition, as claimed by some of the authors.It is true that the effectiveness of this opposition and therefore of the protection of the two categories of rights is fundamentally different. However, this effectiveness is dictated by thepossibility of publicity of these species of law. Only to the extent that the formalities provided by the law for the publicity of real rights are fulfilled, they are erga omnes opposable, for example, to movable goods, by their nature this requirement is fulfilled by exercising its possession in a public way. On the other hand, for real real estate rights, the lack of legal publicity formalities lacks the respective right of opposition. From here we deduce that opposability is not a specific element of real rights, because it is attached only by fulfilling the requirements of publicity.By their nature, debt rights cannot be exercised through a public possession and this makes them lack an opposability close to that of real rights. Instead, there are some debt rights for which forms of advertising are organized: the National Registry of Real Estate Advertising is the legal advertising system for real estate mortgages, but also for trusts, secured claims, and mortgage bonds. For claims that benefit from a publicity system, the erga omnes opposition has the same effectiveness as that of real rights.It is thus even better understood that the erga omnes opposability is specific to subjective rights as a characteristic necessary for their erga omnes protection, protection exercised through the actions attached to subjective rights: the claim action, the confessional action, the negation action, etc., as well as the prerogatives of prosecution and preferably, these being specific especially to accessory real rights, as opposed to an action for damages for the violation of a right of claim by a third party.What differentiates the real right from the claim right is therefore not the erga omnes opposability but the object and the manner of their exercise. The first one is exercised directly by the holder on the physical asset object of the right (in rem), while the right of claim is exercised against a person, the value expected by the creditor is acquired indirectly through the activity of the debtor's person (ad rem personam). Hence the difference between the regime of the two categories of subjective rights: the first having as its object an asset over which the creditor directly exercises your prerogatives, on the other hand, in the case of the debt right, its exercise can only be carried out through the debtor, hence the relative and personal character of this right, opposed to the real and direct right of real. The opposability of a right is therefore not synonymous with the relative nature of the right to claim.

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