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This chapter explains the term nonfeasance. There are many situations in which it is very difficult to draw any logical distinction between feasance and nonfeasance. Part of the problem is caused by the complications that lie in a sophisticated language. Although the failure to brake, in isolation, is nonfeasance, it is part of a larger activity, driving, which has to be qualified as feasance. The courts however, do not adopt one uniform definition of nonfeasance. As a result it sometimes proves difficult to establish in individual cases whether the court has made its decision on the presumption that the behaviour complained of is misfeasance or nonfeasance. In those cases close attention should be paid to the court's reasoning. While it probably remains impossible to provide a rule that always correctly distinguishes feasance from nonfeasance, this chapter provides the guidelines that can be applied in such cases.

This chapter examines the history of the action for breach of promise in England. It explains that the nonfeasance doctrine under the common law of 1400 prohibited litigants from using assumpsit as a complete substitute for the action of covenant. During this period, nonfeasance exercised a powerful restraining influence over the development of assumpsit. This chapter discusses relevant court cases concerning the action for breach of promise.

This chapter examines the historical relationship between assumpsit and the older remedies for debt issues in England. Problems on the scope of legal action concerning debt issues started to arise when the courts decided that the action of assumpsit for breach of promise could be brought on a pure nonfeasance. These problems were highlighted by a series of demarcation disputes involving the relationship between the action of assumpsit and older remedies, particularly with the action of debt on a contract.

This chapter contains an introductory account of the position in English law. English Law in principle denies the intervener a claim, be it for reward or for mere reimbursement of his expenses. Yet, as with the rule of no liability for nonfeasance, it proves surprisingly difficult to find any authority for this supposed principle. While there seems to be no authority for the supposed principle of denying voluntary interveners a claim, English law does not appear to contain a general principle that does grant interveners a claim. And whilst most of the English doctrines discussed in this chapter merely allow claims for reimbursement of expenses and/or compensation of loss, the salvage cases form an obvious exception, as well as some cases in equity, where trustees were on occasion remunerated for services voluntarily rendered.

Assuming that it does not recognize a general affirmative duty to act, English law does not encourage members of the public to give aid to those in need of help. Quite the reverse, English law in fact discourages giving aid, for once someone has started to give aid, he or she can be held liable for mistakes he or she makes in doing so. Nevertheless, there are apparently enough justifications for the House of Lords to uphold the distinction between feasance and nonfeasance, and to deny the existence of a general duty to act. Each of the justifications given by Lord Hoffinann are examined in this chapter, together with two additional justifications that have been put forward in academic writings.

This chapter contains a brief account of the continental approach towards cases of nonfeasance. After a historical introduction, the focus is on the laws of France and Germany. It should be emphasized that it is not here intended to describe the French and German systems in detail. Instead, the purpose of this chapter is merely to illustrate how these two systems operate, while their respective codes do not draw a principled distinction between cases of feasance and nonfeasance. This chapter also includes a short discussion of the affirmative duties imposed under the continental doctrine of negotiorum gestio. Some knowledge of these duties is required to fully understand the implications of that doctrine. The duties imposed on the gestor in negotiorum gestio are treated separately in the last section of this chapter, because they are not strictly speaking tortious.

In this chapter the position in English law on liability for nonfeasance is subjected to a closer analysis. Here, some specific circumstances that may give rise to affirmative duties are assessed and investigated. It should at the outset be noted that the categories of circumstances that are distinguished in these sections sometimes overlap. As it can be seen, in many cases it is the combination of circumstances that has given rise to the imposition of an affirmative duty. The presence of an undertaking — especially if accompanied by detrimental reliance — may give rise to an affirmative duty and thus to an exception to the rule of no liability for nonfeasance. Several justifications for allowing such an exception in these cases are also discussed in this chapter.

In this chapter, the legal systems of France, Germany, and England are investigated in an attempt to assess their general approach towards cases of nonfeasance. The results of this investigation show that there are many similarities. At the beginning of this century, both French and German courts were reluctant to impose liability for nonfeasance in the absence of a specific duty to act. The Second World War appears to have provided the metaphorical junction at which the French system went its own way. In both France and Germany, the legislators introduced a duty to rescue in criminal law. The German courts refused to translate this duty into a private law duty to rescue. Conversely, the French courts were quick to recognize a duty to rescue in private law. Eventually, this led to a breach with the rigid feasance–nonfeasance distinction in the Branly case in 1951.

This chapter examines the concept and principle of assumpsit for nonfeasance under the law of contract in England during the Tudor period. During this period, assumpsit law was based on the distinction between misfeasance which was actionable in trespass on the case, and nonfeasance which was not. This chapter discusses some cases related to assumpsit for nonfeasance during this period and analyses the legal bases of court decisions. It also describes the factors that led to the evolution of the laws governing assumpsit for nonfeasance.

This chapter elucidates the immanence of corrective justice in negligence liability. It examines each of the negligence concepts (reasonable care, the duty of care, proximate cause, factual cause, and the contrast of misfeasance and nonfeasance) and shows how these constitute a unified ensemble that treats the progression from the defendant's action to the plaintiff's injury as a single normative sequence. Central to this linkage of plaintiff and defendant is the idea of risk, because (as the Palsgraf case stated) ‘risk imports relation’. Each of the concepts traces an actual or potential connection between doing and suffering, and together they translate into juridical terms the movement of effects from doer to sufferer.

This chapter examines the ways in which the theories examined earlier in the book understand the private law. It explores in particular the basis of our private law rights, the objective standard of care, the relationship between injury and damage in the law of tort and contract and the distinction between misfeasance and nonfeasance.

Among the writs of assumpsit issued in the fourteenth century were some alleging a mere failure to do what was promised (nonfeasance), the harm being economic rather than physical. The cases in this chapter show how the availability of such actions was controversial for nearly a century. Assumpsit for misfeasance had been allowed without dispute, because the misfeasance would have been a tort even without the undertaking. But assumpsit for nonfeasance rested wholly on a contractual agreement and arguably required written evidence of the agreement, if not a different writ (covenant). During the fifteenth century the action was established, after much debate, by deploying the concepts of bargain, reliance, and deceit. It enabled contracts to be enforced although there was no sealed agreement, as was required in the action of covenant. The turning point was Doige’s Case (1442), in which damages were recovered against a defaulting vendor of land.

This chapter traces the development of the action of assumpsit, a species of trespass on the case used to enforce informal contracts. The earliest examples were of ‘misfeasance’ causing physical damage; they belong as much to the history of tort as of contract. There were intellectual obstacles to extending the trespassory remedy to mere ‘nonfeasance’, but they were overcome by drawing (inter alia) on the concepts of deceit, reliance, and (in Doige’s Case) on the mutual force of bargains. The competing principles were brought together in the Tudor doctrine of consideration, which also accommodated the binding force of mutual executory promises. The use of assumpsit to recover debts, and thereby avoid wager of law, caused a prolonged controversy between the King’s Bench and Common Pleas, which was ended by Slade’s Case (1602). The action was soon afterwards held to lie against executors.