Also known as: failures to act · failing to act · omission · nonfeasance
Written by attorneys · grounded in primary & secondary sources — see 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.
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.
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.
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.
Select any source to read its text and confirm it supports the definition.
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.
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.
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.
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
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
No, unless the failure amounts to a lack of good faith and fair dealing.
Supporting sources
No. Tort law imposes no affirmative duty to act merely because one is able to prevent harm, absent a special relationship or other exception.
…the project was approved. With these principles in mind we now turn to the notion of "energy conservation," an alternative the omission of which was thought by the Court of Appeals to have been "forcefully pointed out by Saginaw in its comments on the draft EIS." 178 U. S. App. D. C., at 328, 547 F. 2d, at 625. Again, as…