--By Advocate Ankita Sarangi--
We need to understand that some judgments are applicable only to the determinate individuals/litigants while some are applicable to the non litigating parties too. In many disputes, even those of matrimonial nature or insolvency cases or even probate (property) related matters, the outcome of some type of litigation affects even people who were not party to the cases/suits. Whereas, in most other cases where a litigant has filed a suit against another and where a judgment is pronounced only in favour of the other party or there is no appeal or an appeal is disposed of, such a judgment declaring them entitled to something specifically will amount to Judgment in Personam.
For instance, if the matter pertains to maintenance or alimony, it will be "in personam" but a matter of divorce would be "in Rem" because while the couple was married they could not enter into another matrimonial relationship, barred by law. Insolvency proceedings are also in Rem because it declares to everyone that the company concerned is declared insolvent and inviting those concerned/the interested parties to become a party to the proceedings and to be bound by the outcome of the same.
Judgment in Rem (an exception to a rule that judgments affect only the parties thereto and their privies) & Judgment in Personam pertain to and are the end result of an Action in Rem and Action in Personam, respectively. As far as a Judgment in Rem is concerned, if a judgment is res judicata inter partes (between the parties), it will also be res judicata against rest of the world.
The best way to explain this would be in the context of "Maritime law" or the "admiralty law" with the help of an example-
Under the Maritime Law, a ship is treated as an individual, it is considered a legal entity or a separate juridical personality that can be sued and its very presence in the territorial water of a country can attract jurisdiction therefore there is no need for the owner of the ship to be present at the time of adjudication. However, two types of actions can be initiated, namely an action in rem and action in personam. The case may be filed against the ship, making it a Respondent, the rationale being that, as a last resort it can be sold and the amount of claim can be recovered and payments be made out of the sale proceeds, in case the owner of the ship does not claim it. If the owner shows up and claims it, he becomes a party to the suit and the matter then proceeds like a regular suit. The arrest of the ship in the absence of the owner is an action in Rem.
Similarly, a Jus in Rem (literally meaning, a right against or in respect of a thing) and Jus in Personam (a right against or in respect of a person), is decided by the same rationale and logic. The Halsbury's Laws of England, while distinguishing between sale and agreement to a sale states that, an agreement to sell is an executory contract of sale which forms a contract pure and simple, whereas a sale or as it is called for distinction, an executed contract of sale is a contract plus a conveyance. Thus, an agreement to sell creates a mere jus in personam, whereas by a sale, a jus in rem is transferred. Once the goods are sold, but the buyer defaults in payment, the seller may sue for the entire contract price agreed to, but where an agreement to buy has been broken, the seller is usually only left with the remedy for an action for unliquidated damages. (In other words, an agreement to transfer is "personam" and finally getting the ownership/title is "rem", declaring that it legally belongs to you).
In the language of Salmond, while explaining a Jus ad Rem said "The commonest and most important kind of jus in personam is that which has been termed by the Civilians and Canonists as jus ad rem. I have a jus ad rem, when I have a right that some other right shall be transferred to me or otherwise vested in me. Jus ad rem is a right to a right. A debt, a contract to assign property and a promise of marriage are examples of this. It is clear that such a right to a right must be in all cases in personam".
It needs to be noted that the decision of the Probate Court, considered a court of exclusive jurisdiction is a judgment in rem, binding not only the parties before it, but extra partes contra mandum or rest of the world. However, the ordinary Civil Court's decision, dealing with the same issue, may not always constitute a judgment in rem. Further, in case of two parallel proceedings in the probate court and a civil court on similar issue, it is mostly the probate case which is first disposed of while the civil suit is stayed in the meantime.
(Concepts of Jurisprudence might seem difficult or confusing at first but the more you read and learn, the more you start appreciating it)
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