A nondelegable obligation (also known as a non-delegable duty) is a legal obligation or duty which cannot legally be delegated or, if delegated, the principal is still liable for said obligation. They are also known as non-assignable duties or obligations. These obligations cannot be delegated due to stipulations of public policy, statute, or common law. Nondelegation can also be written into a contract even when it otherwise would not apply. There are many types of automatically nondelegable obligations, including those involving trained professionals and those with a medical or fiduciary duty. Political duties are also often considered nondelegable. When an obligation is nondelegable, the obligee is entitled to specific performance by the obligor.
Definition and related legal concepts
The specific definition of nondelegable obligations depends on the specific municipality. It is a compound term consisting of two sub-terms: delegate and obligation. To delegate is to "To hand over or assign responsibility to another, such as a subordinate in a business". Obligation is more loosely defined, with several common use and legal definitions. Most broadly, it is "a duty to pay or perform". There are four common types of obligations in law: contractual obligation, current obligation, conditional obligation, or heritable obligation. These are not mutually exclusive and can all potentially apply to the same obligation. Thus, a nondelegable obligation is a duty to pay or perform, the responsibility of which cannot be handed over or assigned to a subordinate, business, or any other third party. The specific definition, as applied in case law, however, differs depending on jurisdiction. For example, the Florida Court of Appeals claims “a nondelegable duty arises in situations in which for policy reasons the employer is not permitted to shift the responsibility for the proper conduct of the work to the contractor.” A Nebraska court claims it means that “an employer of an independent contractor by assigning work consequent to a duty, is not relieved from liability arising from the delegated duties negligently performed.”
Since every government, through statute, common law, or general public policy determines exactly which obligations are nondelegable, there is no single, concrete list of all nondelegable obligations. However, there are a few principles which are commonly applied to determine what is and is not delegable, especially within specific professional fields. The fields listed below and the associated nondelegable obligations do not amount to an exhaustive list.
United States
Attorneys
As legal professionals with a fiduciary duty to their clients, attorneys are responsible for certain legal procedures themselves and cannot delegate responsibility to a third party. One such obligation is service of process, which is defined as the timely filing of proper paperwork and properly informing a client about said process. Courts have ruled this obligation cannot be delegated because "responsibility is so important to the community that the employer should not be permitted to transfer it to another". Some courts in other states, such as Maryland, have disagreed.
Businessowners and employers
There are some obligations to employees which an employer cannot pass on contractually to a third party. Notably, the responsibility for many Title VII provisions cannot be delegated. For example, an employer has a nondelegable duty of nondiscrimination, hire without regard to sex, and provide a nonhostile environment free of sexual harassment. In general, employers have a nondelegable duty to provide reasonable care in providing a safe working environment for employees. An employer or owner of an establishment also owes a nondelegable duty of care to customers and to maintain a reasonably safe place for said patrons. For example, a carnival owner has a nondelegable obligation to inspect and supervise obligations of a ride. The employer is especially liable under a nondelegable obligation when it is reasonably foreseeable that some harm will result to the employee or customer unless some reasonable precautions are taken. As one example, an owner of a ship has a nondelegable obligation to provide a seaworthy ship to passengers or other customers.
General contracts
An obligation cannot be delegated to any other party if so specified in a contract. The Uniform Commercial Code states that if one party has a substantial interest in having his original promisor perform or control the acts required by the contract then the obligation cannot be delegated.