TORT LIABILITY FOR CRIMINAL NONFEASANCE

Authors

  • A M LINDEN

Abstract

If a man or a woman be branded as a “moral monster,” so be it: the common law will not be made into “an instrument to enforce general unselfishness.” Whereas a court will not hesitate to regulate positive conduct that injures others, it is averse to requiring positive action from one who merely refrains from assisting another. Indeed, first year law students are normally horrified that the common law does not require one to rescue the drowning, feed the starving or tend to the dying. Of course, a duty to rescue is often assumed by the pious who feel bound by their asceticism. But sanctimony often masquerades as piety, and altruism may turn to egoism when rendering assistance raises the spectre of civil liability. On the other hand, criminal legislation has made nonfeasance a crime when it has imposed positive obligations such as the duty to provide necessaries. A.M. Linden examines the impact of such criminal legislation on the common law of tort in order to discover whether tort law has followed the criminal law, or whether it has remained aloof from its influence. The article focuses, in particular, upon the influence of criminal legislation in the creation of new tort duties where at common law no duty existed.

Keywords:

Criminal Law

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Published

1966-03-01

Issue

Section

Legal Commentary

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