Home >> New International Encyclopedia, Volume 14 >> New Years Day to Nordau >> Nonfeasance

Nonfeasance

agent and person

NONFEASANCE (front non-, not + fca sanee, deed, from Fr. faisant, pres. part. of faire, from 1.at. facerr, to do, make). The omission to do :in act which one is under a legal obligation to do. It is the view of some writers that non leas:tile(' never amount; to a tort (q.v.) ; that to avoid eommitting a tort one need only to for bear to act. But this is clearly erroneous; as, if an owner of a factory fails to comply with a law requiring him to equip it with fire-escapes, in case of tire he is liable in damages to the person burned. 11 is nonfeasance is a tort.

The term is frequently used in connection with the liability of an agent or servant to third persons. The owner of property employs an agent to nut it and keep it in proper repair.

The agent omits to make repairs. Clearly he has violated his contract with his principal, who may 1:111 him to aecount therefor; but the weight of judicial authority in this country holds there is no privity between tine agent and a third person, and that in such a ease there must be misfeasance or malfeasanee by the agent to render hint liable. I)11 the other it has

been held by a number of courts that the agent is liable to the injured person. llis limhilitr should be determined by the rules applicable to negligence (q.v.), not by a dictum of t WO hun dred years, although its author was the distin guished Lord Chief .lust ice flolt (q.v.), that "a servant or deputy cannot be charged for non feasance, but for a misfeasance all action will lie against hint." Consult : daggard, Ham/ nook of Ow Lair of Torts (Saint Paul, 181)5) ; IlutTeut, The btu- of .1gcnry (1',040n, 1901).