Also known as: duties to act · affirmative duty
Written by attorneys · grounded in primary & secondary sources — see below
A legal obligation requiring a person to perform a specific act, arising from statute, contract, fiduciary relationship, or voluntary undertaking.
Daniel Diaz, general manager of Delta Dynamics, learns of repeated safety violations in the manufacturing plant. He receives written warnings but chooses not to report them to the board to protect a major contract. The board later discovers the violations and sues Diaz for breaching his obligations as an officer.
Dwight Dorsey agrees to represent both parties in a sale of equipment between Delta Dynamics and Davenport Pharmaceuticals. Dorsey knows of a pending recall affecting the equipment but discloses it to neither side. When the recall surfaces after closing, both companies sue Dorsey for failing to act fairly toward each principal.
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Police arrest Darrell Duncan for public intoxication after finding him asleep on a sidewalk. Duncan has a long history of alcoholism but committed no affirmative act beyond his presence. Prosecutors cannot establish the required elements because no duty to act arose from his status alone.
Government agents repeatedly approach Diego Duarte and urge him to sell illegal goods. Duarte finally agrees after persistent persuasion. At trial Duarte claims the agents created a duty to act by their inducement, but the court rejects the argument because no independent legal duty existed before the solicitation.
Dorothy Daniels and her husband belong to a religious group that rejects medical treatment. Their child develops a treatable illness and dies after they pray instead of seeking care. Prosecutors charge the parents with homicide, relying on their statutory duty to act for the child's welfare.
Diane Dawson serves as compliance officer for Dillon Energy. A statute requires her to file environmental reports when spills occur. After a spill she deliberately omits the filing to avoid regulatory scrutiny. Prosecutors later charge her with reckless omission under the statute imposing the duty to act.
Criminal liability for an omission arises only when the defendant has a legal duty to act. The duty may come from a special relationship, statute, contract, or voluntary undertaking to protect another.
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An officer must act in good faith and with the care a reasonably prudent person would exercise. Concealing known compliance violations after receiving warnings breaches that standard even if the officer believes the problems are minor.
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An agent who knows both principals are aware of the dual representation must still act with fairness to each and disclose all facts that would reasonably affect either principal's judgment unless a principal has manifested indifference to the facts.
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No. Criminal law does not punish a person for status or condition alone. Liability requires an affirmative act or an omission coupled with a pre-existing legal duty to act.
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…are succinct, clear, and explicit in defining the removal consequence[s]” of a conviction, the Court says, counsel has an affirmative duty to advise the client that he will be subject to deportation as a result of the plea. Ante , at 11. But “[w]hen the law is not succinct and straightforward . . . , a criminal defense…