Misfeasance as an Organizing Normative Idea in Private Law

Abstract

The familiar principle that there is no liability for nonfeasance but only for misfeasance is often presented as reflecting a merely factual difference between acts and omissions and is discussed as a discrete issue in negligence alongside and after the treatment of the general tort principles. In striking contrast, Francis Bohlen took this distinction to be normative, not factual, and wrote that none is more deeply rooted in and more fundamental to the common law. This Article investigates whether his contention is sound and, if so, how it might be accounted for. Its main thesis is that, properly understood, the misfeasance requirement is a central organizing normative idea in private law, providing a unifying moral framework for specifying the varieties of private law relations. Part One fixes the meaning and the role of misfeasance through a discussion of a variety of situations in which the law denies liability for even foreseeable loss. We see that the misfeasance requirement makes a certain kind of protected interest, namely, an exclusive right, the necessary condition of liability in private law. But the character of an exclusive right requires explanation and the fact that it is the only relevant conception of protected interest needs to be justified from a moral point of view. Part Two undertakes an analysis of exclusive rights and shows how it is reflected in the main forms of substantive private law rights. Parts Three and Four take up the further question of the moral acceptability of the misfeasance requirement as part of a liberal theory of justice.