DUTY
duty. 1. A legal obligation that is owed or due to another and that needs to be satisfied; an
obligation for which somebody else has a corresponding right.
“There is a duty if the court says there is a duty; the law, like the Constitution, is what we
make it. Duty is only a word with which we state our conclusion that there is or is not to be
liability; it necessarily begs the essential question…. [M]any factors interplay: the hand of history,
our ideas of morals and justice, the convenience of administration of the rule, and our social ideas
as to where loss should fall.” William L. Prosser, Palsgraf Revisited, 52 Mich. L. Rev. 1, 15
(1953).
“A classic English definition [of duty] from the late nineteenth century holds that, when
circumstances place one individual in such a position with regard to another that thinking persons
of ordinary sense would recognize the danger of injury to the other if ordinary skill and care were
not used, a duty arises to use ordinary skill and care to avoid the injury. A much quoted American
judicial definition of duty emphasizes its relational aspects, with a focus on the foreseeability of
risk to those ‘within the range of apprehension.’ At about the same time, one of the most creative
of American law teachers defined duty as a complex of factors, including administrative,
economic, and moral ones, to be applied by judges in their analyses of the legal strength of
personal injury cases.” Marshall S. Shapo, The Duty to Act xi–xii (1977).
“While courts frequently say that establishing ‘duty’ is the first prerequisite in an individual
tort case, courts commonly go on to say that there is a ‘general duty’ to ‘exercise reasonable care,’
to avoid subjecting others to ‘an unreasonable risk of harm,’ or to comply with the ‘legal standard
of reasonable conduct.’ Though cast in the language of duty, these formulations merely give the
expression to the point that negligence is the standard of liability.” Restatement (Third) of Torts §
6 cmt. a (Discussion Draft 1999).
absolute duty. 1. A duty to which no corresponding right attaches. • According to John
Austin’s legal philosophy, there are four kinds of absolute duties: (1) duties not regarding persons
(such as those owed to God and to lower animals), (2) duties owed to persons indefinitely (i.e., to
the community as a whole), (3) self-regarding duties (such as the duty not to commit suicide), and
(4) duties owed to the sovereign. 1 John Austin, The Providence of Jurisprudence Determined 400
(Sarah Austin ed., 2d ed. 1861).2. A duty as to which nothing but lapse of time remains necessary
to make immediate performance by the promisor obligatory.
active duty.See positive duty.
affirmative duty.A duty to take a positive step to do something.
conditional duty.A duty that is conditioned on the occurrence of an event other than the lapse
of time.
contractual duty. 1. A duty arising under a particular contract. [Cases: Contracts 1. C.J.S.
Contracts §§ 2–3, 9, 12.] 2. A duty imposed by the law of contracts.
delegable duty.A duty that may be transferred to another to perform. See ASSIGNMENT.
duty to act.A duty to take some action to prevent harm to another, and for the failure of which
one may be liable depending on the relationship of the parties and the circumstances. [Cases:
Negligence 210. C.J.S. Negligence §§ 32–33, 36, 39–40, 60, 79.]
duty to defend.Insurance. The obligation of an insurer to provide an insured with a legal
defense against claims of liability, within the terms of the policy. • The duty to defend applies if
the terms of the policy and the facts of the claim allow an ambiguity about whether the insurer will
have a duty to indemnify the insured. It does not apply if no such ambiguity exists.
duty to indemnify.An obligation to compensate another for the other’s loss. • The duty arises
under the terms of an agreement, which governs the extent of the duty. An insurance policy is
fundamentally an indemnification agreement, but the duty is often made a part of other contracts
as well.
duty to settle.Insurance. The obligation of an insurer to negotiate and settle third-party claims
against an insured in good faith.
duty to speak.A requirement (not strictly a duty) to say something to correct another’s false
impression. • For example, a duty to speak may arise when a person has, during the course of
negotiations, said something that was true at the time but that has ceased to be true before the
contract is signed. [Cases: Fraud 17.]
equitable duty.A duty enforceable in a court of chancery or in a court having the powers of a
court in chancery.
imperfect duty. 1. A duty that, though recognized by law, is not enforceable against the
person who owes it. 2. A duty that is not fit for enforcement but should be left to the discretion and
conscience of the person whose duty it is.
implied duty of cooperation.A duty existing in every contract, obligating each party to
cooperate with, or at least not to wrongfully hinder, the other party’s performance. • Breach of this
implied duty excuses performance. [Cases: Contracts 168. C.J.S. Contracts §§ 346–347.]
legal duty.A duty arising by contract or by operation of law; an obligation the breach of
which would give a legal remedy <the legal duty of parents to support their children>.
moral duty.A duty the breach of which would be a moral wrong. — Also termed natural duty.
negative duty.A duty that forbids someone to do something; a duty that requires someone to
abstain from something. — Also termed passive duty.
noncontractual duty.A duty that arises independently of any contract.
nondelegable duty (non-del-<<schwa>>-g<<schwa>>-b<<schwa>>l).1.Contracts. A duty
that cannot be delegated by a contracting party to a third party. • If a contracting party purports to
delegate the duty, the other party can rightfully refuse to accept performance by the third party.
[Cases: Assignments 19; Principal and Agent 27. C.J.S. Agency § 49; Assignments§§ 32–33.]
2.Torts. A duty that may be delegated to an independent contractor by a principal, who retains
primary (as opposed to vicarious) responsibility if the duty is not properly performed. • For
example, a landlord’s duty to maintain common areas, though delegated to a service contractor,
remains the landlord’s responsibility if someone is injured by improper maintenance. [Cases:
Master and Servant 315; Negligence 1204. C.J.S. Employer–Employee Relationship §§
231–235, 242, 244–246, 248, 251–252, 254–255; Negligence §§ 532–535.]
perfect duty.A duty that is not merely recognized by the law but is actually enforceable.
positive duty.A duty that requires a person either to do some definite action or to engage in a
continued course of action. — Also termed active duty.
preexisting duty.A duty that one is already legally bound to perform. See
PREEXISTING-DUTY RULE.
quasi-judicial duty.A discretionary judicial duty that a nonjudicial officer may perform under
some circumstances.
2. Any action, performance, task, or observance owed by a person in an official or fiduciary
discretionary duty.A duty that allows a person to exercise judgment and choose to perform or
not perform. Cf. ministerial duty.
duty of candor (kan-d<<schwa>>r). A duty to disclose material facts; esp., a duty of a
director seeking shareholder approval of a transaction to disclose to the shareholders all known
material facts about the transaction. [Cases: Corporations 307, 312(5). C.J.S. Corporations §§
476–479, 500–501, 503, 524.]
duty of candor and good faith.Patents. A patent applicant’s responsibility to disclose to the
U.S. Patent and Trademark Office all known information relevant to the invention’s patentability,
esp. prior art, novelty, and embodiment. • If an applicant fails to be candid in disclosing all
relevant information, the PTO may reject the application. If the patent issues and undisclosed but
relevant information is discovered later, the patent may be invalidated, and the applicant charged
with fraud on the PTO, even if the undisclosed information might not have barred the patent’s
issuance. [Cases: Patents 97. C.J.S. Patents §§ 135–138, 145, 178.]
duty of fair representation.A labor union’s duty to represent its member employees fairly,
honestly, and in good faith. [Cases: Labor Relations 219. C.J.S. Labor Relations § 213.]
duty of good faith and fair dealing.A duty that is implied in some contractual relationships,
requiring the parties to deal with each other fairly, so that neither prohibits the other from realizing
the agreement’s benefits. See GOOD FAITH; BAD FAITH. [Cases: Contracts 168, 189. C.J.S.
Contracts §§ 341–342, 346–347.]
duty of loyalty.A person’s duty not to engage in self-dealing or otherwise use his or her
position to further personal interests rather than those of the beneficiary. • For example, directors
have a duty not to engage in self-dealing to further their own personal interests rather than the
interests of the corporation.
fiduciary duty (fi-d[y]oo-shee-er-ee). A duty of utmost good faith, trust, confidence, and
candor owed by a fiduciary (such as a lawyer or corporate officer) to the beneficiary (such as a
lawyer’s client or a shareholder); a duty to act with the highest degree of honesty and loyalty
toward another person and in the best interests of the other person (such as the duty that one
partner owes to another). See FIDUCIARY; fiduciary relationship under RELATIONSHIP. [Cases:
Fraud 7.]
ministerial duty.A duty that requires neither the exercise of official discretion nor judgment.
Cf. discretionary duty.
proprietary duty.A duty owed by a governmental entity while engaged in a proprietary, rather
than governmental, activity. [Cases: Municipal Corporations 725. C.J.S. Municipal Corporations
§ 664.]
3.Torts. A legal relationship arising from a standard of care, the violation of which subjects
the actor to liability. — Also termed duty of care. [Cases: Negligence 210. C.J.S. Negligence §§
32–33, 36, 39–40, 60, 79.] 4. A tax imposed on a commodity or transaction, esp. on imports;
IMPOST. • A duty in this sense is imposed on things, not persons.
account duty.An inheritance tax payable by a decedent’s beneficiary.
ad valorem duty.A tax calculated as a percentage of an imported product’s value. Cf.
compound duty; specific duty.
compound duty.A tax based on a combination of imported goods’ weight, volume, or item
count, plus a percentage of their value. Cf. ad valorem duty; specific duty.
countervailing duty.A tax imposed on manufacturers of imported goods to protect domestic
industry by offsetting subsidies given by foreign governments to those manufacturers. [Cases:
Customs Duties 21.5. C.J.S. Customs Duties §§ 135–152.]
customs duty.A tax levied on an imported or exported commodity; esp., the federal tax levied
on goods shipped into the United States.
death duty.An estate tax or inheritance tax. — Also termed estate duty.
duty of detraction.A tax on property acquired by succession or will and then removed from
one state to another.
estate duty.Hist. English law. A tax imposed on the principal value of all property that passed
on death. • Estate duties were first imposed in 1889. A capital transfer tax replaced it in 1975.
Since 1986, an inheritance tax has applied instead, with exceptions for certain transactions entered
into before then. See death duty.
import duty.A tax on the importation of a product. — Also termed duty on import.
legacy duty.See legacy tax under TAX.
probate duty.A tax assessed by the government either on every will admitted to probate or on
the gross value of the decedent’s personal property.
specific duty.A tax calculated on an import’s weight, volume, or item count. Cf. ad valorem
duty; compound duty.
succession duty.A tax payable by the successor to real property, esp. when the successor has
not purchased the property for value but has succeeded to the property in some other way.
tonnage duty.A charge imposed on a commercial vessel for entering, remaining in, or leaving
a port, usu. assessed on the basis of the ship’s weight. • U.S. Const. art. I, § 10, cl. 3 prohibits the
states from levying tonnage duties. — Also termed tonnage tax; tonnage. [Cases: Commerce 78;
Shipping 7. C.J.S. Commerce § 120; Shipping §§ 18–20.]
unascertained duty.A preliminary, estimated payment to a customs collector of the duty that
will be due on final accounting. • An importer pays this duty to receive permission to land and sell
the goods. [Blacks Law 8th]