Misfeasance, nonfeasance, and malfeasance are types of failure to discharge public

obligations An obligation is a course of action which someone is required to take, be it a legal obligation or a moral obligation. Obligations are constraints; they limit freedom. People who are under obligations may choose to freely act under obligations. O ...

existing by

common law Common law (also known as judicial precedent, judge-made law, or case law) is the body of law primarily developed through judicial decisions rather than statutes. Although common law may incorporate certain statutes, it is largely based on prece ...

custom Custom, customary, or consuetudinary may refer to: Traditions, laws, and religion * Convention (norm), a set of agreed, stipulated or generally accepted rules, norms, standards or criteria, often taking the form of a custom * Mores, what is wid ...

, or

statute A statute is a law or formal written enactment of a legislature. Statutes typically declare, command or prohibit something. Statutes are distinguished from court law and unwritten law (also known as common law) in that they are the expressed wil ...

. 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 Eleanor of Arborea in 1392. It was in force in Sardinia until it was superseded by the code of King Charles Felix in April ...

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, judge ...

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 known as foodborne disease and food poisoning) is any illness resulting from the contamination of food by pathogenic bacteria, viruses, or parasites, as well as prions (the agents of mad cow disease), and toxins such ...

, 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 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 in contrast to ''ex contractu'', a consequence arising f ...

'') 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 care expected to be exercised in similar circumstances. Within the scope of tort law, negligence pertains to harm caused by the violation of a duty of care through a neg ...

in discharge of the duty but that in the case of nonfeasance the remedy is not by action but by indictment or ''

mandamus A writ of (; ) is a judicial remedy in the English and American common law system consisting of a court order that commands a government official or entity to perform an act it is legally required to perform as part of its official duties, o ...

'' 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 A joint-stock company (JSC) is a business entity in which shares of the company's stock can be bought and sold by shareholders. Each shareholder owns company stock in proportion, evidenced by their shares (certificates of ownership). Shareholder ...

. The word is sometimes used as equivalent to

malpractice In the law of torts, malpractice, also known as professional negligence, is an "instance of negligence or incompetence on the part of a professional".Malpractice definition, Professionals who may become the subject of malpractice actions inc ...

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.

References

{{EB1911, wstitle=Nonfeasance Legal terminology Tort law

Definition and relevant rules of law

See also

References