Definition
A Latin maxim meaning "in doing" or "in feasance" — that is, in the active performance of an act. In legal usage, in faciendo describes an obligation or duty that requires positive action, as distinguished from a passive forbearance or omission. A covenant or condition in faciendo is one that compels a party to do something, rather than to refrain from doing it.
The term appears most frequently in discussions of the nature of obligations, particularly in equity jurisprudence, where courts distinguished between duties requiring active performance and those satisfied by mere restraint. The distinction carried practical consequences for the availability of specific enforcement: courts of equity were historically more reluctant to compel performance of obligations in faciendo — especially personal service obligations — than to enjoin violations of negative covenants.
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Common Confusion
In faciendo is most usefully understood in contrast with in non faciendo (in not doing, or forbearance) and in facto (in fact, or as a completed act). These phrases are easily blurred in historical sources. In faciendo concerns the ongoing or required performance of an affirmative act; in facto refers to something already accomplished or existing as a matter of fact. Researchers encountering either phrase in equity treatises or real property materials should confirm which sense is operative in context.
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Why It Matters in Research
The term appears almost exclusively in equity jurisprudence and real property scholarship, making it a marker of a particular doctrinal register. When you encounter in faciendo in the Law Mind corpus, you are almost certainly in a discussion of one of two problems: (1) the nature of covenants and whether they impose affirmative or negative obligations, or (2) the limits of equitable relief, particularly whether a court will specifically enforce a duty to act.
The Story citation that anchors every major dictionary entry — 2 Story, Equity Jurisprudence § 1308 — signals the equity tradition specifically. Story's treatment in that section addressed the difficulty of compelling affirmative acts through equitable decree, a doctrine with long roots and real consequences for how courts approached performance obligations.
Researchers working in 19th- and early 20th-century real property materials should note that the in faciendo / in non faciendo distinction was foundational to analyzing the enforceability of covenants running with the land. Whether a covenant was affirmative or negative shaped whether it bound successors and whether breach could be enjoined. The phrase may not appear explicitly in many cases, but the underlying distinction is everywhere in that literature, and recognizing in faciendo unlocks the doctrinal frame.
Modern sources rarely use the Latin. Contemporary property and contract scholarship replaces it with "affirmative obligation," "affirmative covenant," or "duty to perform." If you are searching the corpus for the modern equivalent of this concept, adjust search terms accordingly.
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Historical Dictionary Support
The four source dictionaries are in tight agreement, all tracing the definition to the same Story citation and rendering the phrase identically: "in doing; in feasance; in the performance of an act." Burrill adds the qualification "L. Lat." (Law Latin), which is accurate and useful — this is not classical Latin but the technical Latin of English and American legal practice.
Rapalje & Lawrence is the only source that embeds the phrase within a broader sequence of related maxims, which, while editorially useful for context, does not add substantive definition. Their entry is notable for the adjacent maxim — in facto quod se habet ad bonum et malum — which illustrates how closely in faciendo clusters with in facto in historical legal Latin usage, a proximity that can cause confusion in reading older texts.
What the historical dictionaries collectively omit is any doctrinal context: none explains why the distinction between in faciendo and in non faciendo mattered, or how it functioned in equity courts. They treat the phrase as self-defining, which it is not for a modern researcher encountering it without familiarity with 19th-century equity practice.
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Encyclopedia Cross-Reference
See Law Mind Encyclopedia: Covenants Running with the Land; Specific Performance in Equity.
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