Misfeasance v. Nonfeasance

February 21, 2006

There is no distinction more deeply rooted in the common law and more fundamental than that between misfeasance and non-feasance, between active misconduct working positive injury to others and passive in action, a failure to take positive steps to benefit others, or to protect them from harm not created by any wrongful act of the defendant.  This distinction is founded on that attitude of extreme individualism so typical of anglo-saxon legal thought.  Misfeasance differs from non-feasance in two respects; in the character of the conduct complained of, and second, in the nature of the detriment suffered in consequence thereof.  The difference between the nature of the alleged misconduct is in theory obvious, but in practice it is not always easy to say whether an alleged misconduct is active or passive.  There is a borderland in which the act is of a mixed character, partaking of the nature of both.

The difference between the results of non-feasance and misfeasance while quite as fundamental, is much less obvious.  The final physical injury to the plaintiff may be the same whether defendant’s alleged misconduct is an act of violence or a failure to protect him from the violence of others.  But, there is a point intermediate between the plaintiff’s actual harm, and the defendant’s misconduct, where its consequences are substantially different.  In the case of active misfeasance the victim is positively worse off as a result of the wrongful act.  In cases of passive inaction plaintiff is in reality no worse off at all.  His situation is unchanged; he is merely deprived of a protection which, had it been afforded him, would have benefited him.  In the one case the defendant, by interfering with plaintiff or his affairs, has brought a new harm upon him, and created a minus quantity, a positive loss.  In the other, by failing to interfere in the plaintiff’s affairs, the defendant has left him just as he was before; no better off, it is true, but still in no worse position; he has failed to benefit him, but he has not caused him any new injury nor created any new injurious situation.  There is here a loss only in the sense of an absence of a plus quantity.  It is this latter difference which in fact lies at the root of the marked difference in liability at common law for the consequences of misfeasance and non-feasance.

– Francis H. Bohlen, The Moral Duty to Aid Others as a Basis of Tort Liability, 56 U. Pa. L. Rev. 217, 219-221 (1908).

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