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Malfeasance

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Malfeasance

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 in misfeasance or malfeasance. The doctrine was formerly applied to certain callings carried on publicly.[1]

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

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