Academic

Benson on the Normative Interpretation of the Misfeasance-Nonfeasance Distinction

By Lawrence Solum

Peter Benson (University of Toronto - Faculty of Law) has posted Misfeasance as an Organizing Normative Idea in Private Law on SSRN. Here is the abstract:

In tort, we say, there is liability for misfeasance but not nonfeasance. When courts and particularly commentators conceptualize the distinction between misfeasance and nonfeasance, they often equate it with a purely factual difference between acts and omissions and they view the misfeasance requirement, much like the exclusionary rule for pure economic loss, as raising a distinct issue - 'pure omissions' - that qualifies or supplements the application of general principles of negligence. Rarely is this requirement thought of as pertinent to other parts of private law. It is therefore striking that the preeminent tort scholar Francis Bohlen treated this distinction as normative, not factual, and wrote of it that there is none 'more deeply rooted in the common law and more fundamental.' I want to investigate whether his contention is sound and, if so, how it might be accounted for.

Full post as published by Legal Theory Blog on September 07, 2009 (boomark / email).