Also known as:failures to act · failing to act · omission · nonfeasance
Written by attorneys — see sources below.
An omission to perform an act that the law treats as equivalent to affirmative conduct for purposes of liability or agreement formation. The omission must be one the actor is physically capable of avoiding and that the governing rule makes legally significant.
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How its tested
Common Examples
6
Omission Creates Criminal Liability
Fernando Farrell watches a child in his care drown in a shallow pool without calling for help even though he is the only adult present. Because his deliberate inaction supplies the omission that constitutes the offense, Fernando is treated as the principal in the first degree.
Unsigned Pleading Stricken
Frank Fisher files a motion without any signature or contact information. The court strikes the paper because the required signature is absent and Frank does not promptly supply one after the omission is noted.
Involuntary Omission Bars Conviction
Forrest Falconer suffers a seizure and fails to brake his car, causing an accident. Because the seizure renders him physically incapable of the required act, his omission cannot support criminal liability.
Francesca Fowler signs a deed that mistakenly omits a parcel she intended to convey. Her earlier failure to notice the error does not prevent reformation because it does not amount to bad faith.
General Partner Omission Binds Partnership
Falcon Dynamics, the general partner of a limited partnership, fails to inspect cargo as required by industry custom and the cargo is damaged. The limited partnership is liable for the resulting loss because the omission occurred in the ordinary course of partnership business.
Partner Omission Creates Partnership Liability
Fusion Power, a partner in an accounting firm, neglects to file a client tax return on time while handling firm business. The partnership is liable for the resulting penalties because the omission occurred in the ordinary course of the partnership's activities.
4 common questions
Students Frequently Ask...
When does failure to act count as a voluntary act for criminal liability?
Liability requires that the omission be one the person is physically capable of performing and that the offense definition expressly makes sufficient or that a legal duty to act exists.
Supporting sources
Can silence or inaction manifest assent to a contract?
Yes. When a party knows or has reason to know that the other side will understand the inaction as agreement, the failure to act can constitute a manifestation of assent.
Supporting sources
Does a mistaken party's failure to discover facts bar contract reformation?
No, unless the failure amounts to a lack of good faith and fair dealing.
Supporting sources
Is there a general tort duty to act to prevent harm to others?
No. Tort law imposes no affirmative duty to act merely because one is able to prevent harm, absent a special relationship or other exception.
467 U.S. 837, 843, 104 S. Ct. 2778, 2781, 81 L. Ed. 2d 694 (1984)
…discussed in text. : The Licensing Board had highlighted this same problem in its initial decision, noting "that the failure to propose proper findings and conclusions has greatly complicated the task of the Board and has made it virtually impossible in some instances to know whether particular issues are in fact…