Also known as: positive acts · affirmative act
Written by attorneys · grounded in primary & secondary sources — see below
A voluntary affirmative action that renders the obligor unable or apparently unable to perform a contractual obligation without breach.
Select any source to read its text and confirm it supports the definition.
Peter Park contracted to sell a rare painting to Pavel Petrov by June 1. On May 10 Peter sold the painting to a third party for a higher price. Pavel may treat the sale as a repudiation because the voluntary affirmative act rendered Peter unable to perform.
Paul Peterson owned cargo seized by federal agents during wartime. The court held the property could not be condemned because Congress had not passed a statute authorizing confiscation through a positive act.
Pearl Porter's children faced expulsion for refusing to salute the flag. The Court ruled the state could not compel the affirmative act of saluting because it violated free speech protections.
Pablo Perez suffered harm after county workers failed to intervene in known abuse. The Court held the state had no duty to act and its mere omission did not constitute the positive act required for a due process violation.
Priscilla Parks was charged under a federal statute criminalizing plural marriage. The Court upheld the conviction because the statute validly prohibited the positive act of entering a second marriage.
Pacific Bank employees planned a drug transaction in which one participant carried a firearm. The Court held that knowingly and actively participating in the underlying crime while aware of the gun satisfied the positive act element for aiding and abetting liability.
A positive act requires voluntary affirmative conduct that produces the prohibited result, whereas an omission is a failure to act when a duty exists. The Restatement treats a sale of unique goods as a positive act that renders performance impossible. Tort cases similarly require an affirmative bodily movement or refusal to release when a duty exists.
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…