Malfeasance
Encyclopedia
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.
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.
English law
English law is the legal system of England and Wales, and is the basis of common law legal systems used in most Commonwealth countries and the United States except Louisiana...
with reference to the discharge of public obligations existing by common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
, 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 - neglectNeglectNeglect is a passive form of abuse in which a perpetrator is responsible to provide care for a victim who is unable to care for himself or herself, but fails to provide adequate care....
. - 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
Ex contractu
Ex contractu, Latin for "from a contract," is a legal term that indicates a consequence of a contract. Ex contractu is often to denote the source of a legal action ....
) will lie for any of the three. However, an action in tort (ex delicto
Ex delicto
Ex delicto, Latin for "from a wrong" or "from a transgression," is a legal term that indicates a consequence of a tort, though the phrase can also refer to the consequence of a crime. This is often opposed to ex contractu....
), 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
Mandamus
A writ of mandamus or mandamus , or sometimes mandate, is the name of one of the prerogative writs in the common law, and is "issued by a superior court to compel a lower court or a government officer to perform mandatory or purely ministerial duties correctly".Mandamus is a judicial remedy which...
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
Medical malpractice
Medical malpractice is professional negligence by act or omission by a health care provider in which the treatment provided falls below the accepted standard of practice in the medical community and causes injury or death to the patient, with most cases involving medical error. Standards and...
by a medical practitioner.