Concept and Legal Classification of Omission
In legal terms, omission refers to the failure to act, even though performing the action would have been possible and—depending on the area of law—required in that situation. In contrast to active conduct, omission encompasses forms of passivity that can become legally significant, particularly in criminal law, civil law, and public law. Omission can have legal consequences both in connection with a breach of duty and with regard to liability and sanctions.
Omission in Criminal Law
Overview
In criminal law, omission is particularly significant in the context of so-called omission offenses. The legislator distinguishes between genuine and quasi-omission offenses.
Genuine Omission Offense
A genuine omission offense is defined by a punishable failure to act that is explicitly made an offense by law. Examples can be found in various statutes, such as Section 323c of the German Criminal Code (StGB) (failure to provide assistance). In such cases, the omission of a required action is already sanctioned, without the necessity for a special guarantor position.
Elements of the Offense
- Specific danger or emergency: The offense requires the existence of a particular situation in which assistance is required.
- Possibility of acting: The offender must have been able to perform the required action.
- No other reasonable assistance: The action must not be unreasonable for the offender.
Quasi-Omission Offense
Quasi-omission offenses are those where omission is punishable only if a special legal duty to act, the so-called guarantor position, exists. Typical examples include negligent homicide by omission (Section 13 StGB in conjunction with Sections 212, 222 StGB) or bodily harm by omission (Section 13 StGB in conjunction with Section 223 StGB).
Guarantor Position
A guarantor position regularly arises from:
- Statutory provisions (e.g. parents for their children)
- Contractual assumption of duties (e.g. care staff)
- Ingerence (danger created through prior culpable conduct)
- Institutional responsibility (assumption of specific functions, e.g. supervisory duties)
Distinction from Active Conduct
In quasi-omission offenses, omission is equated with active causation. The decisive criterion is whether the responsible conduct could have hypothetically prevented the result (causality).
Omission in Civil Law
General Principles
In civil law, omission is particularly relevant in connection with violations of contractual or statutory protective duties. From such omission, claims for damages or for injunctive relief can arise, for example in the case of breaches of road safety obligations or disturbances of ownership.
Claims for Damages
Claims for damages due to omission require that there was a duty to act and that a resulting damage occurred. Examples include a landlord’s failure to perform maintenance or failure to warn of hazards.
Claim for Injunctive Relief
A claim for injunctive relief can arise from various legal bases, for example:
- Neighbor law claims for injunctive relief in cases of disturbances of ownership or possession (Section 1004 BGB)
- Claims for injunctive relief arising from personality rights (Sections 823, 1004 BGB by analogy)
- In competition law to prevent unfair commercial practices (Section 8 UWG)
The legal basis for the claim is usually aimed at preventing further or recurring impairment by ongoing or repeated omission in the future.
Omission in Public Law
Omission and inactivity can also be significant in public law, affecting both private individuals and authorities.
Official Liability and Administrative Law
An authority’s omission may constitute a breach of official duty, for example, if a required official action is not performed. This can result in claims for official liability, such as in cases of delayed processing of an application or the failure to act for hazard prevention by regulatory authorities.
Public Law Duties to Act or Tolerate
In public law, duties to omit may arise—for example, in environmental law or building law—such as when legal obligations to prevent harmful environmental effects are not complied with.
Dogmatic Classification and Distinctions
Concept of Omission
From a legal dogmatic perspective, omission is understood as the absence of a conduct controlled by will. The decisive criterion for distinction in legal practice is whether there was a duty to act and whether fulfilling that duty was possible as well as reasonable.
Distinction from Positive Conduct
The distinction between omission and active conduct may be difficult in individual cases, especially when omission is combined with other behavior (so-called breach of duty by non-action with ancillary acts). The key question is whether, according to the assessment of the specific circumstances, the failure to act appears as a violation of duty.
Causality and Attribution
In the field of omission, the causality between the omitted action and the result often has special doctrinal requirements. It must be established with sufficient probability that the required action would have prevented the occurrence of damage (“quasi-causality”).
Significance in Case Law
The assessment of cases involving omissions is the subject of extensive case law. Courts apply strict standards when determining a duty to act, its reasonableness and possibility, as well as for the hypothetical causal course. In particular, there are differentiated requirements regarding the guarantor position in criminal law and the duties of care in civil law.
Summary
Omission represents a central legal concept that arises in various branches of law such as criminal, civil, and public law. Omission becomes legally relevant in particular when active conduct would have been required due to existing duties, but was not taken. Criminal liability or civil liability may then arise if there was a duty to act and its breach led to damage or injury to a legal interest. The legal assessment of omission depends largely on the specific duty, the guarantor position, and the specific circumstances of each case.
Frequently Asked Questions
When is an omission punishable under the law?
An omission is punishable under the law in particular when a so-called guarantor position exists, meaning when there is a legal duty to act. This duty can arise from statute, contract, or due to prior dangerous conduct. For example, German criminal law only punishes omission offenses under Section 13 StGB if the offender is legally responsible for ensuring that the result defined by law does not occur. In practical terms, this means, for example, that parents are obliged to protect their children from danger or that road users are required to provide assistance at accident scenes if help is possible and reasonable for them. If no such guarantor position exists, mere omission is generally not punishable, even if harm occurs as a result.
What forms of guarantor positions exist in omission offenses?
Guarantor positions are traditionally divided into two main groups: protective guarantors and supervisory guarantors. Protective guarantors are persons whose duty it is to protect certain legal interests from external dangers (e.g., parents in relation to their children, a doctor towards patients during treatment). Supervisory guarantors, on the other hand, are those who must monitor sources of danger and prevent harm caused by them (like vehicle owners, who must ensure that their vehicles are roadworthy). The specific guarantor position must arise from legislation, a contract, especially close personal relationships, or a voluntary assumption of risk. The exact legal derivation is made in each individual case according to the circumstances and statutory requirements.
How is causality legally assessed in cases of omission?
Since an action was not performed in cases of omission, the examination of causality is more complex than in cases of active conduct. Case law here requires what is known as hypothetical causality: it must be asked whether the legally defined result would have been prevented with near certainty if the obligated person had performed the required action. If a harmful result could not have been reliably prevented even by fulfilling the duty, the required causal connection is lacking. This consideration is particularly decisive in duties relating to saving lives or providing assistance.
What are the sanctions for a punishable omission?
Sanctions for punishable omission are generally based on the penalties for the corresponding active offense. A person who, for example, kills another person by omission (Section 212 StGB in conjunction with Section 13 StGB) is punished as if they had committed the act actively. For negligent or less serious omission offenses (such as failure to render assistance under Section 323c StGB), penalties usually include imprisonment of up to one year or fines. In addition to criminal prosecution, civil consequences are also possible, in particular damage claims against the omitting party, if negligent conduct caused financial loss or other impairments.
What are typical omission offenses in German criminal law?
The most common omission offenses include failure to render assistance (Section 323c StGB), failure to rescue from danger (Section 221 StGB), failure to fulfill required supervisory duties (especially for parents and supervisors), and negligent bodily harm or homicide by omission (Sections 222, 229 StGB in conjunction with Section 13 StGB). In special provisions, corporate and environmental duties may also be subject to criminal sanctions for omissions, such as failing to prevent environmentally damaging emissions.
What is the role of reasonableness in the duty to act in cases of omission?
The obligation to act ends where the required action is not reasonable for the obligated person. Reasonableness is assessed according to objective and subjective criteria, especially taking into account potential serious personal risk or insurmountable obstacles. For instance, no one is required to risk their own life or suffer serious health damage to save another person. Unreasonableness may also exist if the person lacks the necessary personal skills or resources, provided their acquisition cannot be reasonably expected.
How does a genuine omission offense differ from a quasi-omission offense?
Genuine omission offenses are those in which omission is explicitly and independently defined as punishable by law; a classic example is the failure to render assistance under Section 323c StGB. Quasi-omission offenses, on the other hand, occur when the law makes a result punishable through active conduct and this offense, according to Section 13 StGB, can also be committed by omission provided the offender has a guarantor position (e.g. homicide by omission). The distinction is important for understanding criminal liability and the necessary subjective and objective requirements.
