Misfeasance, nonfeasance, and malfeasance are types of failure to discharge public
obligations
An obligation is a course of action that someone is required to take, whether legal or moral. Obligations are constraints; they limit freedom. People who are under obligations may choose to freely act under obligations. Obligation exists when ther ...
existing by
common law
In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omniprese ...
,
custom, or
statute
A statute is a formal written enactment of a legislative authority that governs the legal entities of a city, state, or country by way of consent. Typically, statutes command or prohibit something, or declare policy. Statutes are rules made by ...
.
The
Carta de Logu
The Carta de Logu was a legal code of the Judicate of Arborea, written in the Sardinian language and promulgated by the ("Lady Judge") Eleanor of Arborea in 1392. It was in force in Sardinia until it was superseded by the Savoyard code of Ch ...
caused
Eleanor of Arborea
Eleanor of Arborea or Eleanor De Serra Bas ( Sardinian: Elianora de Arbarée / Elianora De Serra Bas, Italian: Eleonora d'Arborea / Eleonora De Serra Bas; 1347— June 1404) was one of the most powerful and important, and one of the last, judges ...
to be remembered as one of the first lawmakers to set up the crime of misfeasance.
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 the failure to act where action is required—willfully or in neglect. Nonfeasance is similar to
omission.
* Misfeasance is the willful inappropriate action or intentional incorrect action or advice.
* Malfeasance is the willful and intentional action that injures a party.
For example, if a company hires a catering company to provide drinks and food for a retirement party, and the catering company fails to show up, it is considered nonfeasance. If the catering company shows up but provides only the drinks (but not the food, which was also paid for), it is considered misfeasance. If the catering company accepts a bribe from the client's competitor to undercook the meat, thereby giving those present
food poisoning
Foodborne illness (also foodborne disease and food poisoning) is any illness resulting from the spoilage of contaminated food by pathogenic bacteria, viruses, or parasites that contaminate food,
as well as prions (the agents of mad cow disea ...
, it is 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.
[''R. v. Kilderby'', 1669, 1 Will. Saund. 311, 312 c]
Currently, 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, by
negligence
Negligence (Lat. ''negligentia'') is a failure to exercise appropriate and/or ethical ruled care expected to be exercised amongst specified circumstances. The area of tort law known as ''negligence'' involves harm caused by failing to act as ...
in discharge of the duty but that in the case of nonfeasance the remedy is not by action but by indictment or ''
mandamus
(; ) is a judicial remedy in the form of an order from a court to any government, subordinate court, corporation, or public authority, to do (or forbear from doing) some specific act which that body is obliged under law to do (or refrain fr ...
'' 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.
Misfeasance is also used with reference to the conduct of directors and officers of
joint-stock companies. The word is sometimes used as equivalent to
malpractice by a medical practitioner.
Misfeasance in the context of directors who run companies can be deployed to refer to actions that fall below the standard expected and which may be prescribed in legislative provisions.
See also
*
Connivance
*
Malfeasance in office
Malfeasance in office is often grounds for a just cause removal of an elected official by statute or recall election. Malfeasance in office contrasts with "misfeasance in office", which is the commission of a ''lawful'' act, done in an officia ...
*
Misfeasance in public office
*
Political corruption
Political corruption is the use of powers by government officials or their network contacts for illegitimate private gain.
Forms of corruption vary, but can include bribery, lobbying, extortion, cronyism, nepotism, parochialism, patronage, i ...
*
Sabotage
Sabotage is a deliberate action aimed at weakening a polity, effort, or organization through subversion, obstruction, disruption, or destruction. One who engages in sabotage is a ''saboteur''. Saboteurs typically try to conceal their identitie ...
References
{{EB1911, wstitle=Nonfeasance
Legal terminology
Tort law