Nonfeasance: Meaning, Examples, and Related Terms

What is nonfeasance?

Nonfeasance is the failure to perform an act or duty that one is legally or contractually obliged to perform, where that omission causes harm or damage to a person or property. It describes inaction (not doing something that should have been done), as opposed to affirmative wrongdoing.

Key takeaways

• Nonfeasance is omission-based liability: harm results from failing to act when there was a duty to do so.
• It can give rise to civil liability and, in some jurisdictions, criminal penalties; employers may also terminate for nonfeasance.
• Financial nonfeasance occurs when a fiduciary or financial representative fails to act on a client’s behalf (for example, not executing an instructed trade).
• Nonfeasance differs from malfeasance (willful wrongful acts) and misfeasance (improper performance of an act).

Legal criteria for nonfeasance

To establish liability for nonfeasance, courts generally look for three elements:
1. Duty: The person who failed to act was reasonably expected to perform the act (a legal, contractual, or fiduciary duty).
2. Breach by omission: That person did not perform the expected action.
3. Causation and harm: The omission caused harm or damage.

Examples

• Daycare supervision: A caregiver employed to supervise children who fails to prevent a child from falling from a window ledge may be liable for nonfeasance because protecting the children was part of the caregiver’s duty.
• Real estate: A real estate agent who accepts an earnest money check but fails to deposit it, causing a deal to collapse, can be liable for nonfeasance if funds were not misused and no improper motive existed.
• Corporate directors: A director who neglects to monitor corporate affairs and whose inaction harms the business may face liability for failing to fulfill fiduciary responsibilities.
• Financial services: A broker or advisor who does not execute transactions or otherwise fails to act on client instructions may be accountable for financial nonfeasance.

Consequences and enforcement

Consequences vary by jurisdiction and circumstance. Remedies can include:
* Civil liability for damages caused by the omission.
* Employment discipline or termination.
* In some cases, criminal penalties where law imposes a duty to act (these are less common and depend on statutory or common-law duties).

Related terms — quick distinctions

• Malfeasance: Committing an unlawful or wrongful act (affirmative misconduct).
• Misfeasance: Improperly performing an otherwise lawful act or giving incorrect advice.
  All three concepts—nonfeasance, misfeasance, and malfeasance—are forms of misconduct but differ by whether the wrongdoing is omission, improper action, or intentional illegal conduct.

Summary

Nonfeasance is liability for harmful omissions by someone who has a duty to act. Establishing nonfeasance requires showing a duty, a failure to act, and causation of harm. It commonly arises in caregiving, fiduciary, corporate, and financial contexts and is legally distinct from misfeasance and malfeasance.