Also known as: affirmative acts · positive act
Written by attorneys · grounded in primary & secondary sources — see below
A voluntary act that renders the obligor unable or apparently unable to perform a contractual duty.
Adrian Aguilar contracted to sell unique manufacturing equipment to Alliance Holdings. Before the delivery date, Adrian dismantled the equipment and sold its parts to a third party. This voluntary affirmative act rendered Adrian apparently unable to perform, allowing Alliance Holdings to treat the contract as repudiated and pursue damages for total breach.
Anika Anand drove two associates to a drug transaction site knowing one carried a firearm. Anika provided directions and waited in the car during the exchange. Her affirmative act of active participation with advance knowledge of the gun established aiding and abetting liability under federal law.
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Alfred Ashford received a family court order requiring payment of child support arrears. When he failed to pay, the court imposed a coercive jail sentence that would end only upon compliance. The affirmative act of making the required payment would purge the contempt and secure release.
Ava Adebayo fled officers in a high-speed vehicle pursuit initiated by the county sheriff's department. The chase ended when the vehicle crashed, killing a passenger. The officers' affirmative acts of initiating and continuing the pursuit formed the basis for a substantive due process claim.
Alice Atkins's family sought to remove her feeding tube after she entered a persistent vegetative state. The hospital refused without court approval. The proposed removal would constitute an affirmative act ending life support rather than a mere omission of further treatment.
Amber Alonzo, a journalist, received a subpoena to reveal confidential sources before a grand jury. She declined to answer, asserting a First Amendment privilege. The refusal to perform the affirmative act of testifying triggered contempt proceedings and potential imprisonment.
An affirmative act consists of positive conduct that directly produces the harm, such as operating sandblasting equipment that sends dust onto neighboring property. An omission, by contrast, involves a failure to act when under a duty to abate a known interference. Both can support nuisance liability when the other elements are met.
Supporting sources
A covenant is affirmative when it requires the burdened party to perform an act, such as maintaining a bulkhead in good repair. A negative covenant instead requires the party to refrain from a specified use, such as operating passenger cruises from a dock. Classification turns on the nature of the burden imposed, not on who benefits.
Supporting sources
The government must show that the defendant took a voluntary affirmative act in furtherance of the underlying offense with the intent to facilitate its commission. Mere presence or knowledge alone does not suffice. The act must advance the crime, as when a participant actively joins a drug transaction while knowing a gun will be used.
Supporting sources
…from ordinary suicide: (1) that she is permanently incapacitated and in pain; (2) that she would bring on her death not by any affirmative act but by merely declining treatment that provides nourishment; and (3) that preventing her from effectuating her presumed wish to die requires violation of her bodily integrity. None of these…