ACTIVE - The Law Mind Legal Dictionary

ACTIVEAuthored

The Law Mind • 1235 words

Definition

In law, "active" functions as a modifier rather than a standalone term, acquiring legal significance through its pairing with other words. It signals that something is presently operative, carries an affirmative duty, or generates income or interest — as opposed to dormant, passive, or merely nominal. Its core legal meaning is defined by contrast with its opposite.

Active debt. A debt upon which interest is accruing or being charged. Distinguished from a passive debt, which bears no interest.

Active trust. A trust that imposes on the trustee ongoing duties of management, administration, or action — not merely the duty to hold title. Because the trustee must do something, the trust cannot collapse under the Statute of Uses. Distinguished from a passive (or bare) trust, where the trustee holds legal title with no duties to perform.

Active use. In the historical law of uses, a use accompanied by active duties, which prevented the Statute of Uses from executing (converting) it into a legal estate. A passive use, by contrast, would be executed by the statute, vesting legal title directly in the cestui que use.

Active negligence. Negligent conduct arising from an affirmative act, as opposed to an omission. In contribution and indemnity disputes between joint tortfeasors, courts have sometimes distinguished active from passive negligence to allocate ultimate liability.

Active concealment. Affirmative steps taken to hide a material fact, as opposed to mere silence or nondisclosure. Active concealment typically supports a fraud or misrepresentation claim even where bare nondisclosure would not.

Common Language

Modern common usage (Wiktionary): Having the power or quality of acting; causing change; communicating action or motion; in action; actually proceeding; working; in force — opposed to passive.

Historical common usage (Webster's 1913): Having the power or quality of acting; causing change; communicating action or motion; acting — opposed to passive. Quick in physical movement; nimble.

The common meaning of "active" (doing something; energetic; in motion) tracks the legal meaning more closely than most legal modifiers, which is precisely where the research trap lies. In law, "active" is a term of art that shifts legal consequences — whether a trust collapses, whether a use is executed, whether a tortfeasor bears full indemnity, whether income is subject to passive-loss limitations. A researcher encountering "active" in a legal instrument or case should not assume the ordinary meaning controls; the doctrinal framework attached to the specific compound term governs.

Common Confusion

Active trust vs. passive trust. The distinction is not merely descriptive but historically determinative. Under the Statute of Uses 1535, passive uses were executed (legal title passed automatically to the beneficiary); active uses were not, because the trustee's ongoing duties made automatic execution unworkable. Modern trust law has largely superseded the Statute of Uses in most American jurisdictions, but the terminology persists in treatises and older cases. Researchers reading historical equity materials must be alert to this technical distinction.

Active negligence vs. passive negligence. This pairing, once used to apportion liability between joint tortfeasors (particularly in indemnity suits between contractors and property owners), has been substantially displaced in many jurisdictions by comparative fault regimes. Courts that abolished the distinction did so precisely because the line between "acting" and "failing to act" proved difficult to draw consistently. Historical cases relying on this distinction may not reflect current doctrine.

Recognized Forms

/SUBTYPES

Active debt · Active trust · Active use · Active negligence · Active concealment · Active duty (military law, a distinct usage) · Active income (tax law, income from material participation, contrasted with passive income under IRC § 469)

Why It Matters in Research

"Active" is a chameleon modifier. Its legal consequences depend entirely on the compound in which it appears and the legal regime under which it is being interpreted. Several research traps merit attention.

Tax law displacement. The most consequential modern usage of active/passive in law is in the passive activity loss rules under Internal Revenue Code § 469, which disallow deduction of passive activity losses against active or portfolio income. This regulatory regime uses "active" and "passive" in a precisely defined technical sense that has no direct historical antecedent in equity or property law. Researchers crossing between tax materials and trust or property materials should not assume the terms carry the same meaning.

Historical equity materials. In pre-twentieth-century equity cases and treatises, "active trust" and "passive trust" (or "dry trust") are load-bearing terms that determine whether the Statute of Uses applies. American states adopted the Statute of Uses reception to varying degrees, and the active/passive trust distinction retains force in some jurisdictions for purposes of determining whether a trust is enforceable at all or whether legal title executes automatically. Check jurisdiction-specific reception before relying on English authorities.

Negligence materials. The active/passive negligence distinction appears heavily in mid-twentieth-century cases involving indemnity between general contractors and subcontractors, landlords and tenants, and employers and third parties. Many of these cases were decided before comparative fault, and the distinction was doing work that comparative apportionment now handles differently. Cases citing "active negligence" as a bar to indemnity may have been effectively superseded even if not formally overruled.

Corpus connections. The Passive Activity Loss Rules encyclopedia entry (tax_154) addresses the tax law usage directly. Researchers working on trust administration should trace the active/passive trust distinction through treatises on the law of trusts rather than relying on dictionary definitions, as the doctrinal stakes vary substantially by jurisdiction and era.

Historical Dictionary Support

Black's Law Dictionary (1st and 2nd editions) offer identical, terse treatment: "That is in action; that demands action; actually subsisting; the opposite of passive." Both editions enumerate the three core compounds — active debt (draws interest), active trust (connected with a duty), and active use (a present legal estate) — without elaboration. The brevity reflects that "active" was understood as a relational term requiring context rather than a definition that could stand alone.

Anderson's Dictionary of Law does not address "active" directly in the excerpted material, instead treating related action-based concepts. This gap is itself instructive: nineteenth-century legal dictionaries generally treated "active" as sufficiently self-evident to require only illustrative pairings, not substantive definition.

Neither historical dictionary anticipates the tax law usage that has made "active" income versus "passive" income the most practically significant deployment of this distinction in contemporary legal practice. Researchers relying solely on Black's historical entries for guidance in tax contexts will find no useful support.

Jurisdictional Note

The active/passive trust distinction retains the most doctrinal significance in jurisdictions that received the Statute of Uses and have not fully displaced it by modern trust statutes. Several states, including New York, have their own versions of a statute of uses that may affect whether the active/passive distinction controls. The passive activity loss rules (IRC § 469) are federal and apply uniformly, but state income tax treatment of active versus passive income varies.

Encyclopedia Cross-Reference

Passive Activity Loss Rules (The Law Mind Tax Encyclopedia) — for the IRC § 469 framework governing active versus passive income and the material participation tests.

ACTIVEmain

Black's Law Dictionary • 1891

That is in action; that de- mands action; actually subsisting; the oppo- site of passive. An active debt is one which draws interest. An active trust is a confi- dence connected with a duty. An active use is a present legal estate. ACTON BURNEL, Statute of. In nal writ by which formerly it was always English law. A statute, otherwise called commenced. 3 Bl. Comm. 122.

ACTIVEmain

Anderson's Dictionary of Law • 1890

bring when several complainants cannot pursue a joint remedy. See further JOINT. Local action. A suit maintainable in some one jurisdiction exclusively. Transitory action. A suit maintainable wherever the defendant can be found. In "local actions," where the possession of land or damages for an actual trespass or waste, etc., affecting land, is to be recovered, the plaintiff must declare his injury to have happened in the very place where it happened; but in "transitory actions," for an injury that might have happened anywhere, as in debt, detinue, slander, the plaintiff may declare in what county he pleases. Transitory actions follow the person of the defendant; territorial suits must be discussed in the territorial tribunal.¹ Actions are deemed "transitory" when the transactions on which they are founded might have taken place anywhere; and "local," when their cause is, in its nature, necessarily local.2 Actions which do not seek the recovery of land may be "local" by common law because they arise out of some local subject or from the violation of some local right or interest; as, waste, trespass quare clausum, actions on the case for nuisances to houses, for disturbance of a right of way, for the diversion of a water-course, and the like; also, replevin. These actions are personal and local.3 When the action by which a remedy is to be enforced is personal and transitory the defendant may be held liable in any court to whose jurisdiction he can be subjected by personal process or by voluntary appearance. Thus, as an action in the nature of trespass to the person is transitory, the venue is immaterial. See ACTOR, 1, Sequitur, etc. Penal action. A suit brought by an officer of government to recover a penalty imposed by statute. Popular action. An action also for a penalty, maintainable by any person. Compare Qui tam action. See FORFEITURE; PENALTY. Qui tam action. Qui tam: who as well. The emphatic words in the Latin form of a declaration in an action by an informer for a penalty. Civil in form, but designed to recover a penalty imposed by a penal statute; therefore, partially at least, criminal in nature.5 Sometimes one part of a forfeiture, for which a popular action will lie, is given to the king, to the 1 [3 Bl. Com. 294, 384. * Livingston v. Jefferson, 1 Frock. 209 (1811), Marshall, C. J. 3 Hall v. Decker, 48 Me. 256-57 (1860). 4 Dennick v. Central R. Co. of New Jersey, 103 U. S. 17-18, 21 (1880), cases; Livingston v. Jefferson, 4 Hughes, 611-13 (1811), Marshall, C. J.; Oliver v. Loye, 59 Miss. 321-23 (1881), cases; R. S. §§ 739-45, cases. State v. Kansas City, &c. R. Co., 32 F. R. 726 (1887), Brewer, J.; R. S. Mo. § 1703. poor, or to some public use, and the other part to the informer or prosecutor: and then the suit is called a qui tam action, because brought by a person "qui tam pro domino rege, quam pro se ipso"--as much for his lord the king, as for his own self. If the king commences the suit he has the whole forfeiture. If any one has begun such action, no other person then can pursue it; and the verdict in the first suit bars other actions. This caused offenders to induce their friends to begin suit, in order to forestall and prevent other actions: which practice is prevented by 4 Hen. VII (1488), c. 20, enacting that no recovery, otherwise than by verdict, obtained by collusion, shall be a bar to any other action prosecuted bona fide. That being the law in England in 1776, such action cannot be prosecuted in the name of an informer unless the right is distinctly given by statute.2 Real action. An action whereby the plaintiff claims title to lands or tenements, rents, commons, or other hereditaments, in fee-simple, fee-tail, or for term of life. Personal action. Such action whereby a man claims a debt, or a personal duty or damages in lieu thereof, or damages for some injury to his person or property. Mixed action. Partakes of the nature of both of the former - by it real property is demanded, with personal damages for a wrong sustained. A "real action" is brought for the specific recovery of lands, tenements, or hereditaments. It includes every form of action where the judgment is for the title and possession of the land demanded; as, ejectment. A "mixed action" is brought for the specific recovery of land, as in a real action, but has joined with this claim one for damages in respect to such property; as, actions of waste and dower. A "personal action" is brought for the specific recovery of chattels, or for damages or other redress for breach of contract and other injuries of every description, the specific recovery of lands and tenements only excepted. See Actio, Personalis, etc. Right of action. Right to bring a suit; such right as will sustain a suit; in particular, a right of remedy or recovery at law.5 See ACTIO; BOOK-ACCOUNT, Action of; CIRCUITY; COMMENCE; CONSOLIDATE; DISCONTINUANCE: FORM, 2; GIST; ISSUE, 3; MULTIPLICITY; PARTY, 2; PEND; PROCEEDING; PROCESS, 1; RES, 2. 1. Produced by exertion; resulting from intentional action; opposed to passive: as, active - deceit, waste, qq. v. 2. Requiring intelligent direction, personal 13 Bl. Com. 161-62. 2 O'Kelly v. Athens Manuf. Co. 36 Ga. 52 (1867). 3 [3 Bl. Com. 117-18. 4 [Hall v. Decker, 48 Me. 255-56 (1860). 5 As to premature actions, see 21 Cent. Law J. 401-12 (1885), cases.

ACTIVEmain

Black's Law Dictionary (2nd Ed.) • 1910

That is in action; that de mands action; actually subsisting; the opposite of passive. An active debt is one which draws interest. An active trust is a confidence connected with a duty. An active use is a present legal estate. . ACTON BURNEL, STATUTE OF. In English law. <A _ statute, otherwise called “Statutum de Mercatoribus,” made at a parHament held at the castle of Acton Burnel in Shropshire, In the 11th yeur of the reign of Edward I. 2 Reeves, Eng. Law, 158-162.

ACTIVEa.

Websters Unabridged Dictionary (1913) • 1913

Having the power or quality of acting; causing change; communicating action or motion; acting; -- opposed to Ant: passive, that receives; as, certain active principles; the powers of the mind. Quick in physical movement; of an agile and vigorous body; nimble; as, an active child or animal. Active and nervous was his gait. Wordsworth. In action; actually proceeding; working; in force; -- opposed to quiescent, dormant, or extinct; as, active laws; active hostilities; an active volcano. Given to action; constantly engaged in action; energetic; diligent; busy; -- opposed to dull, sluggish, indolent, or inert; as, an active man of business; active mind; active zeal. Requiring or implying action or exertion; -- opposed to Ant: sedentary or to Ant: tranquil; as, active employment or service; active scenes. Given to action rather than contemplation; practical; operative; - - opposed to Ant: speculative or Ant: theoretical; as, an active rather than a speculative statesman. Brisk; lively; as, an active demand for corn. Implying or producing rapid action; as, an active disease; an active remedy. Applied to a form of the verb; -- opposed to Ant: passive. See Active voice, under Voice. Applied to verbs which assert that the subject acts upon or affects something else; transitive. Applied to all verbs that express action as distinct from mere existence or state. Active capital, Active wealth, money, or property that may readily be converted into money.

activeadj

Wiktionary (English) • 2026

Wiktionary contributors • CC BY-SA 4.0 • via Kaikki
Extracted and formatted for display by Law Mind. Source link opens the current Wiktionary page and its contributor history; it is not a frozen copy of this extract.

Having the power or quality of acting; causing change; communicating action or motion; acting;—opposed to passive, that receives. | Quick in physical movement; of an agile and vigorous body; nimble. | In action; actually proceeding; working; in force | In action; actually proceeding; working; in force | Emitting hot materials, such as lava, smoke, or steam, or producing tremors. | Given to action; constantly engaged in action; energetic; diligent; busy | Requiring or implying action or exertion | Given to action rather than contemplation; practical; operative | Brisk; lively. | Implying or producing rapid action. | About verbs. | Applied to a form of the verb; — opposed to passive. See active voice. | About verbs. | Applied to verbs which assert that the subject acts upon or affects something else; transitive. | About verbs. | Applied to all verbs that express action as distinct from mere existence or state. | Eligible to be processed by a compiler or interpreter. | Not passive. | enjoying a role in anal sex in which he penetrates, rather than being penetrated by his partner.

activenoun

Wiktionary (English) • 2026

A person or thing that is acting or capable of acting. | Any component that is not passive. See Passivity (engineering).

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