Although it’s standard to refer to contract “rights,” in this November 2012 post on rethinking the “no assignment” provision, I said the following about “rights”:
It’s unclear what “rights” refers to. (I don’t use the word “rights” anywhere in MSCD.) I think it refers to discretion granted to a party under an agreement and any remedy that a party has under an agreement, and I’d rather make that explicit.
But to be more specific, I suspect that “right” is also sometimes used by parties entitled to performance under a contract in referring to that entitlement. If Acme has an obligation to purchase widgets from Widgetco but refuses to do so, Widgetco and its lawyers might be inclined to talk about Widgetco’s “right” to sell widgets to Acme.
This just makes me more inclined not to use the word “right” in drafting or interpreting contracts.
Ken, a few stray thoughts:
Contracts used to refer to the “benefit and burden” of a contract. One can usually assign the benefit but not the burden of a contract. “Benefit and burden” sounds a bit old-fashioned. Perhaps “rights and obligations” is an imperfect modernisation. One area where I think one can legitimately talk about rights is where property rights are granted, eg a lease of real property or a licence of patents, although in the context of assignment there are then legal issues as to whether such a right is personal to the beneficiary of the right. Some US legal commentary that I have seen recently refers to such rights as “privileges”.
My first priority is using verbs to accomplish whatever I need to accomplish in a sentence. I never need to wade into the mushiness that is “rights.”
Would you not consider a right to have an obligation performed (eg. the payment of money) – a right that is capable of being assigned – to be a contractual right?
Good point, and the answer is yes, but rights and responsibilities (or duties or obligations) are really the same thing looked at from different points of view.
My duty to pay you money is the same thing as your right be be paid money by me.
Ken favors consistency of point of view (disliking, e.g., “purchase and sale agreement”), and it’s usually more convenient to describe relationships in terms of duties or obligations than in terms of rights, so why not do so uniformly?
Also, “duty talk” is generally more compact than “rights talk.”
For example: (1) “The right to receive payments under this notes is assignable” vs. (2) “The maker shall pay to payee or order.”
Rights talk has the deficiencies of passive-voice constructions without by-agents: my right to be paid is really your (or someone’s) duty to pay me.
Duty talk has the virtues of active-voice constructions: “Maker shall pay” beats “payee has the right to receive payment from maker.”
“A has a right to X” is also a nominalization of something better expressed with a verb: “B shall give X to A.”
Rights talk isn’t logically flawed; it’s just gloppy and best rejected as a matter of drafting hygiene.
Ken, I’m under the impression (from what source, I can’t recall) that “right” more properly refers to a discretionary authority to trigger an obligation for the other party to perform, such as a right of first refusal or an option right. Have you seen the word used in that narrower sense?
And, as Mark Anderson points out, the term is often used in connection with property, particularly intellectual property. And I suppose that’s a similar notion to a discretionary authority to trigger an obligation by another in the sense that, at its essence, a property right is is a discretionary authority to exclude others from the property. But now maybe I’m straining too much to reconcile the notion of of a contract right with a property right.
Michael: You’re correct that “right” has those uses, largely because there’s no count-noun counterpart of “discretion.” But I don’t think I’d use the phrase “right of first refusal” in a contract, as opposed to granting the discretion in question. Ken