Misfeasance

Misfeasance

The expressions misfeasance and nonfeasance, and occasionally malfeasance, are used in English law with reference to the discharge of public obligations existing by common law, custom or statute.

Definition and relevant rules of law

When a contract creates a duty that does not exist at common law, there are three things the parties can do wrong:

  • Nonfeasance is to ignore and take no indicated action - neglect.
  • Misfeasance is to take inappropriate action or give intentionally incorrect advice.
  • Malfeasance is hostile, aggressive action taken to injure the client's interests.

Example: A company hires a catering company to provide drinks and food for a retirement party. If the catering company doesn't show up, it's considered nonfeasance. If the catering company shows up but only provides drinks (and not the food, which was also paid for), it's considered misfeasance. If the catering company accepts a bribe from its client's competitor to undercook the meat, thereby giving those present food poisoning, it's considered malfeasance.

The rule of law laid down is that an action in contract (ex contractu) will lie for any of the three. However, an action in tort (ex delicto), will lie only misfeasance or malfeasance. The doctrine was formerly applied to certain callings carried on publicly (see R. v. Kilderby, 1669, 1 Will. Saund. 311, 312 c).

At present the terms misfeasance and nonfeasance are most often used with reference to the conduct of municipal authorities with reference to the discharge of their statutory obligations; and it is an established rule that an action lies in favour of persons injured by misfeasance, i.e. by negligence in discharge of the duty; but that in the case of nonfeasance the remedy is not by action but by indictment or mandamus or by the particular procedure prescribed by the statutes.

This rule is fully established in the case of failure to repair public highways; but in other cases the courts are astute to find evidence of carelessness in the discharge of public duties and on that basis to award damages to individuals who have suffered thereby.

Misfeasance is also used with reference to the conduct of directors and officers of joint-stock companies. The word malfeasance is sometimes used as equivalent to malpractice by a medical practitioner.

See also

References

 This article incorporates text from a publication now in the public domainChisholm, Hugh, ed (1911). Encyclopædia Britannica (11th ed.). Cambridge University Press. 


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Look at other dictionaries:

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  • misfeasance — mis‧fea‧sance [ˌmɪsˈfiːzns] noun [uncountable] LAW when someone accidentally makes a mistake when doing something: • misfeasance in relation to the transfer of the assets compare malfeasance, nonfeasance * * * misfeasance UK …   Financial and business terms

  • Misfeasance — Mis*fea sance, n. [OF. pref. mes wrong (L. minus less) + faisance doing, fr. faire to do, L. facere. Cf. {Malfeasance}.] (Law) A trespass; a wrong arising from an overt act; the improper doing of an act which a person might lawfully do. Bouvier.… …   The Collaborative International Dictionary of English

  • misfeasance — (n.) wrongful exercise of lawful authority or improper performance of a lawful act, 1590s, from M.Fr. mesfaisance, from mesfaisant, prp. of O.Fr. mesfaire to misdo, from mes wrongly (see MIS (Cf. mis ) (2)) + faire to do, from L. facere to… …   Etymology dictionary

  • misfeasance — [mis fē′zəns] n. [OFr mesfaisance < mesfaire, to misdo: see MIS 1 & FEASANCE] Law wrongdoing; specif., the doing of a lawful act in an unlawful or improper manner: distinguished from MALFEASANCE, NONFEASANCE misfeasor [misfē′zər] n …   English World dictionary

  • Misfeasance — With regards to performance on a contract, misfeasance is engaging in a proper action or duty, but failing to perform the duty correctly. Misfeasance often occurs in the business world when management does not comply with rules and procedures,… …   Investment dictionary

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  • misfeasance — /misfiyzans/ The improper performance of some act which a person may lawfully do. nonfeasance means the omission of an act which a person ought to do; misfeasance is the improper doing of an act which a person might lawfully do; and malfeasance… …   Black's law dictionary

  • misfeasance — /misfiyzans/ The improper performance of some act which a person may lawfully do. nonfeasance means the omission of an act which a person ought to do; misfeasance is the improper doing of an act which a person might lawfully do; and malfeasance… …   Black's law dictionary

  • Misfeasance in public office — English Tort law Part of the common law series Negligence Duty of care Bolam test Breach of duty Causation …   Wikipedia

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