Nonfeasance

Nonfeasance is a legal concept that refers to the willful failure to execute or perform an act or duty required by one’s position, office or law, whereby that neglect results in harm or damage to a person or property. The perpetrator can be found liable and subject to prosecution.

For example, if a day-care provider is employed to supervise children and s/he fails to prevent a child from climbing out on a window ledge from which the child falls, the day-care provider could be found liable for nonfeasance because it was her contracted duty to watch and protect the child from harm and she failed to take action when necessary.

While nonfeasance – the absence of action to help prevent harm or damage – was not originally subject to penalty of law, legal reforms evolved to make it possible for courts to use the term to describe inaction which assigns liability. In some jurisdictions, nonfeasance carries stiff criminal penalties.

In order for an intentional inaction to be considered nonfeasance, it must meet three criteria. They are:

1. The individual who did not act was the one who would have been reasonably expected to act;
2. That individual did not perform the expected action; and
3. Through his or her inaction, that individual caused harm.

When a corporate director, real estate agent, financial adviser or other individual with a fiduciary duty breaches that duty through willful and intentional inaction, nonfeasance can be said to have taken place. For example, when a real estate agent accepts an earnest money check from a client but fails to deposit that check, causing the deal to fall through, he or she might be held liable for nonfeasance as long as the funds weren’t misused and the agent had no inappropriate motive.

Similarly, a corporate director might be held liable for nonfeasance if he or she fails to maintain an active role in the business and monitor corporate affairs, such that his or her inaction causes harm to the business.

Nonfeasance is different from malfeasance, which refers to the willful, intentional undertaking of an illegal or wrongful act that harms another party. It also differs from misfeasance, which is the willful, intentional performance of an inappropriate or incorrect action or the willful giving of incorrect or inappropriate advice. All three terms fall under the umbrella of misconduct in public office.