What Is Nonfeasance?
Let me explain nonfeasance directly: it's a legal concept where someone willfully fails to perform an act or duty that's required by their position, office, or the law, and that neglect causes harm or damage to a person or property. If this happens, the person responsible can face liability and even prosecution.
You should know that nonfeasance stands apart from malfeasance, which is a willfully harmful act, or misfeasance, which means performing your duty but doing it incorrectly.
Key Takeaways
Here's what you need to grasp about nonfeasance: it's the willful absence of action that could have prevented harm or damage. While nonfeasance itself might not always be illegal, employers can legally fire an employee or contractor for it. In financial cases, it involves a fiduciary or representative failing to act for a client, like not executing a trade as instructed by a customer.
Understanding Nonfeasance
Originally, nonfeasance—just not acting to prevent harm or damage—wasn't punishable by law, but legal changes have allowed courts to hold people accountable for such inaction. In some places, it can lead to serious criminal penalties, or at the very least, a termination notice.
For inaction to qualify as nonfeasance, it has to meet three specific criteria: the person who didn't act was reasonably expected to do so, they failed to perform that action, and their inaction directly caused harm.
Criteria for Nonfeasance
- The individual who did not act was the one who would have been reasonably expected to act;
- That individual did not perform the expected action;
- Through inaction, that individual caused harm.
Example of Nonfeasance
Consider this example: if a daycare provider is hired to supervise children and doesn't stop a child from climbing onto a window ledge, leading to a fall, they could be liable for nonfeasance. That's because it was their duty to protect the child, and they failed to act when needed.
Financial Nonfeasance
When it comes to finances, nonfeasance happens if a corporate director, real estate agent, financial advisor, or anyone with a fiduciary duty breaches it through willful inaction. For instance, if a real estate agent takes an earnest money check from a client but doesn't deposit it, causing the deal to collapse, they might be liable for nonfeasance—provided the funds weren't misused and there was no bad intent.
In the same way, a corporate director could face liability for nonfeasance by not staying actively involved in the business or monitoring affairs, where that inaction harms the company.
Related Legal Terms
Nonfeasance differs from malfeasance, which is the willful and intentional commission of an illegal or wrongful act that harms someone else. It also contrasts with misfeasance, which is willfully performing an action incorrectly or giving inappropriate advice. All three are forms of misconduct in public office.
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