The Jurisprudence of Action and Inaction in the Law of Tort: Solving the Puzzle of Nonfeasance and Misfeasance from the Fifteenth Through the Twentieth Centuries

Authors

Jean Elting Rowe
Theodore Silver

Abstract

For nearly five hundred years negligence law has distinguished between "misfeasance" and "nonfeasance," purporting to provide that the former occasions liability while the latter does not. This distinction arose in the fifteenth century when the concept of "duty," in its modern form, was unknown to the common law. When a court of that era ruled that a defendant had committed a misfeasance, it meant that the defendant, whether by act or omission, had failed to perform what modem negligence law would label a duty. Conversely, a court spoke of nonfeasance when a defendant had no duty to act or forebear. Those original usages have been lost in a tangle of careless judicial expression. On one hand liability is said to attach to an imprudent act or omission, while on the other, negligence law sanctions the statement that nonfeasance, which it equates with inaction, creates no liability. Through historical inquiry the authors demonstrate that the law never intended that nonfeasance and misfeasance should be distinguished, because inaction is one form of action and conclude that courts are, and always have been, striving for this simple truth: one should be liable for harm caused by acting in violation of a duty, or by failing to act when action was the defendant's duty.

First Page

807

Recommended Citation

Jean E. Rowe & Theodore Silver, The Jurisprudence of Action and Inaction in the Law of Tort: Solving the Puzzle of Nonfeasance and Misfeasance from the Fifteenth Through the Twentieth Centuries, 33 Duq. L. Rev. 807 (1995).
Available at: https://dsc.duq.edu/dlr/vol33/iss4/3