The goal of this essay is to consider which contracts can serve as a source of the requisite duty to act in criminal jurisprudence. 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. The discussion focuses on several questions: (1) 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? (2) 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 contract cannot be specifically enforced? (3) 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 questions 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. 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 need to consider whether the contract in question is valid and/or 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 not enforceable under contract law, it may be possible to convict a criminal defendant by relying on a duty that springs from the original contract.
Rosenberg, Roni M., The Contract: Between Contract Law and Criminal Jurisprudence (January 6, 2014). ST. THOMAS LAW REVIEW (Forthcoming).