Malfeasance
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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.
Misfeasance is determined in relation to privity of contract. When a contract creates a duty that does not exist at common law, the parties can do one of three things: (1) perform the duty fully; (2) perform the duty inadequately or poorly; or (3) fail to perform the duty at all. When a party fails to perform at all, it is nonfeasance. When a party performs the duty inadequately or poorly, it is misfeasance. Malfeasance is used to denote outright sabotage which causes intentional damage.
Example: A bus service contracts with a repair garage to maintain the buses. One of the buses breaks down while on a route. If the repair garage never maintained the bus, the breach of the duty is nonfeasance. Conversely, if the repair garage maintains the wheels of the bus, but nothing else, the duty has been attempted but not fully discharged, and the breach is called misfeasance. If the garage has detached the brake drums off the buses to sell them further, it is malfeasance.
The rule of law laid down is that no action lies for nonfeasance, for failure or refusal to perform the obligation, but that an action does lie for misfeasance or malfeasance, for negligently and improperly performing the obligation. 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 mala praxis by a medical practitioner.
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This article incorporates text from the Encyclopædia Britannica Eleventh Edition, a publication now in the public domain.
