The contract: between contract law and criminal jurisprudence.

Author:Rosenberg, Roni
Position:Symposium on Contracts


Contract law is the backbone of civil jurisprudence, and at its center stands the contract itself, in all of its splendor. Literature and case law alike have dealt with fundamental questions relating to the contract: What gives a contract effect? What is its essence? What are the conditions for its formation? When can it be voided? What reliefs are available in cases of breach? Some of the questions that arise in the context of contract law, however, relate on a fundamental level to criminal jurisprudence, one of the foundation stones of public law, in the context of criminal responsibility in the case of a failure to act--an omission. Such a connection between contract law and criminal jurisprudence, with a focus on the contract as a source of the duty to act required in order to convict for an omission, has yet to be fully explored in the literature and case law, and this essay presents an original perspective on this issue.

Criminal jurisprudence draws a significant distinction between an action that causes harm and an omission that causes harm. That is, in order to convict someone of homicide, any action that resulted in a person's death will suffice so long as the other requisite elements of the crime, such as causation and intent, are present. In order to convict someone for an omission, however, it is necessary to identify a duty to act on the part of the defendant and to show that breach of this duty resulted in the death of the victim. The requisite duty to act may flow from obligations under criminal law (such as obligations of parents vis-a-vis their children) or obligations under civil law, but it is generally assumed that such a duty may also originate in a contract. (1) That is, in some circumstances, if a person breaches his contractual obligation to act, resulting in someone's death, it may be possible to convict the person of homicide due to his failure to act.

The goal of this essay is to consider which contracts can serve as a source of the requisite duty to act in criminal jurisprudence. The discussion focuses on several questions: First, is a contract able to serve as a source of a duty to act only if it is valid, or can a nonvalid contract serve as a source of such duty as well? Second, can a contract that is valid but not enforceable (that is, only monetary compensation can be recovered in a case of breach) under contract law serve as a source of a duty to act under criminal law? For example, can a contract for personal service serve as such a source, since it is accepted that such a contract cannot be specifically enforced? Finally, assuming a contract that is both valid and enforceable under contract law, can every such contract serve as a source of a duty to act under criminal law, or can only certain types of contracts be able to serve as such source? In this context, the question arises as to whether a contract that benefits a third party (where the third party is the victim) can serve as a source of the requisite duty to act, and if so, under what conditions?

The answer to this question is embedded in the underlying rationale of the distinction between act and omission in criminal jurisprudence. Many scholars have discussed this issue. (2) S. This essay focuses on two central rationales that have been suggested for such a distinction, the liberty rationale and the causation rationale, and on how each affects the determination of which contracts can serve as a source of a duty to act. It is possible to consider the matter from two different perspectives. The first is that for purposes of criminal convictions based on contractual obligations, criminal law leans on contract law; thus, there is a need to consider whether the contract in question is valid and whether it is enforceable. Under the second perspective, however, criminal law is distinct from contract law. Therefore, even where there is no valid contract, or where the contract is valid but unenforceable under contract law, it may be possible to convict a criminal defendant by relying on a duty that springs from the original contract.

The structure of the essay is as follows: Part I presents the general legal premise that enables the conviction of one who has caused harm by an omission in cases where the duty to act originates in a contractual obligation and highlights U.S. case law on this topic. (3) Part II distinguishes between the duty to act that originates in a contract and a similar duty that is mentioned in case law and literature: the actual assumption of responsibility for a potential victim. (4) Part III introduces various scenarios to assist in examining which contracts can serve as a source of a duty to act in criminal jurisprudence. (5) Part IV analyzes these scenarios in terms of the liberty and causation rationales and concludes that it is possible to look at the entire issue from two different perspectives--the contract law perspective and the criminal law perspective. (6)


    As stated above, criminal jurisprudence distinguishes sharply between conviction for an act and conviction for an omission. When seeking to convict for an act, any act that resulted in harm will suffice to convict, while with regard to conviction for an omission, a defendant can only be convicted if a duty to act is identified. Sources of this duty to act are varied. Such duty to act may flow from a relationship between the defendant and the victim, such as parent-child. A mother who fails to feed her young child will be convicted of manslaughter if the child dies of starvation. (7) Other such relationships that create a duty to act include a spousal relationship. Thus, a person who does not make reasonable efforts to attain proper medical care for his children (8) or his wife (9) may be convicted for this omission if death results. A similar duty may exist in the employer-employee context, such that if an employer fails to warn his employee of a danger, he may be convicted of manslaughter. (10)

    An additional source of such a duty to act is explicit legislation. Thus, some scholars maintain that person can be convicted of homicide if he was involved in a car accident and did not stop to help someone who was injured. In this case, the duty to act flows from the law that requires a driver who is involved in an accident to extend assistance to anyone injured in the accident." Similarly, laws require business owners to maintain certain safety equipment, such as fire extinguishers, on their premises. If a business owner breaks such a law, by failing to provide such equipment, and this failure results in someone's death, the owner might be convicted of manslaughter for his omission. Finally, a duty to act may spring from force of contract. As LaFave states:

    The duty to act to aid others may arise, not out of personal relationship or out of statute, but out of contract. A lifeguard employed to watch over swimmers at the beach, and a railroad gateman hired to safeguard motorists from approaching trains, have a duty, to the public they are employed to protect, to take affirmative action in appropriate circumstances. The lifeguard cannot sit idly by while a swimmer at his beach drowns off shore; the gateman must lower the gate when a train and automobile approach his crossing on collision courses. Omission to do so may make the lifeguard or gateman liable for criminal homicide. (12) Case law shows a childcare contract is an example of a duty to act that originates in a contract. For example, in People v. Wong, (13) a couple undertook to care for a three-month-old child. Three weeks later, the Wongs called the parents and informed them that their baby was dead. The police investigation concluded that the baby died as a result of shaken baby syndrome. The Wongs claimed that they had not shaken the baby; rather their three-year-old son had done so. The court held that even if that was the case, the Wongs could be convicted of manslaughter since they had a duty to care for the child and had breached that duty:

    However, while criminal liability will normally be imposed only for a defendant's culpable act, it may also be imposed when a defendant, with the requisite mental culpability for the crime charged--in this case, recklessness--fails to perform an act as to which a duty of performance is imposed by law. There is no question that the contractual babysitting agreement involved in this case, as well as the voluntary assumption of complete and exclusive care of a helpless child, created legal duties of care which were substantially coextensive with those which would be borne by a parent. These clearly included the duties which the defendants were charged with breaching, i.e., the duty to provide necessary emergency medical care as well as the duty to protect the child, if possible, from physical harm. (14) Nonetheless, a Pennsylvania court was not comfortable with a conviction of manslaughter for an omission when the duty to act originated in a contract. In Commonwealth of Pennsylvania v. Pestinikasf a couple entered into a verbal contract to feed, clothe, and provide medical care to a ninety-two-year-old man. Instead, they transferred him to an isolated location, with no sink or toilet, and did not provide any of the care they had undertaken to provide. Several months later, he died. The couple was indicted and convicted of murder in the third degree. On appeal to the Supreme Court of Pennsylvania, the majority held that it was possible to convict for the omission since defendants had breached the contract between themselves and the victim.16 However, the dissent felt that a contract could not serve as a source of a duty for the purposes of a homicide conviction. Judge Del Sole stated that:

    Duties which are "imposed by law" do not encompass those which arise out of a contract or agreement. A person who enters a contract does so freely. The duties contained...

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