This article is written by Arya Mishra, a student of Banasthali Vidyapith, Jaipur. This article explains malfeasance, misfeasance and nonfeasance with illustrations.
Meaning of Tort
The word has been derived from the Latin term “tortum” which means “to twist” or “damage”. The word tort is equivalent to the French word “wrong”. Under Hindu law, tort is called “jimha” which means tortious or fraudulent act.
According to Dr. Winfield “the liability of tort arises from the breach of a duty primarily fixed by law, such duty is towards persons generally and its breach is redressible by an action for its unliquidated damages”. In layman language, the tort is a civil wrong or a breach of duty which is caused by one person and on the basis of that fault, the court imposes liability and provides compensation for personal injury caused or damage to any property.
According to Salmond “Tort is a civil wrong for which the remedy is common law action for unliquidated damages and which is not exclusively the breach of contract or the breach of trust”. Now tort means a breach of duty which is independent of contract and giving rise to a civil cause of action and for which compensation can be recovered. The first case where the court used the word tort was an old English case Boulton vs Hardy.
In Rogers vs Rajendro Dutt, it was held that- “the act complained of should, under the circumstances, be legally wrongful as regards the party complaining; that is, it must prejudicially affect him in some legal right; merely that it will; however directly; do him harm in his interest is not enough.”
In Jarvis vs May Davies & Co, the court found that where the breach of duty alleged or declared arises out of a liability independently of the personal obligations undertaken by contract, it is a tort.
Malfeasance in Tort Law
- Malfeasance is applied when any unlawful act is committed.
- It is relevant to those unlawful acts which are actionable per se
- no proof is required with.
- For example, trespass.
Malfeasance is a broad term covering any act which is illegal and causes physical or financial harm to another individual. It is an intentional act of doing something wrong, either legally or morally. The term malfeasance is utilized in both common law and criminal law to narrate any act which is unlawful or not identified by law. It is not a different crime or tort but the word malfeasance is used to n7arrate any act that is criminal or any wrongful act which causes injury to any person. Under tort law, malfeasance has legal effect in civil court and the defendant can be sued by the plaintiff for monetary damages. It is an act done with an immoral purpose and the person has the knowledge that the act which is being committed exceeds the authority of the person doing the act.
For example, a police officer is about to complete his rounds during his shift. His shift is about to over and he wants to go home. While he is driving home, he sees that a customer and the cashier at the gas station are having a heated conversation. The officer was on duty at that time and he knew that his shift would end in thirty minutes and if he stops there, it would take time and he will not reach home in time.
After that he thinks, if he is on duty and if any serious issue arises when it is his duty to stop there and try to handle the situation. The officer was aware that if he will not stop the argument between the cashier and the customer, it might turn into a fight but he simply ignored it and went home. Later, the cashier was shot to death and the customer took the cash from the counter. This accident would not have happened if the police officer had stopped at the place where the incident took place, the serious consequences would have been avoided.
Whether the act of officer was malfeasance or not? So, the act of officer was malfeasance as he was aware of his proper protocol and the officer was still on duty at that time when he saw the incident taking place. The officer knew that he was supposed to stop at the scene in order to prevent any further argument between the cashier and the customer. The officer chose not to stop, and his choice led to the robbery and death of a cashier.
Another example of malfeasance is a judge taking bribe from the prosecution. The judge had the knowledge that it is illegal to take money for giving judgment in favour of a person. Since the judge knows that his action is illegal, but continues to carry on doing the act anyway, it is an act of malfeasance.
For example, a school janitor is hired by a principal of a school. The janitor was his relative and had put false employment history in order to get a salary at a rate higher than the normal rate as he was facing some financial problems. Knowingly committing a dishonest act with the motive of getting a higher wage is malfeasance.
It is likewise relevant to the improper performance of some lawful act. For example, assume that a janitor is cleaning a bathroom in a cafe. If he intentionally leaves the floor wet without cleaning it properly, he or his boss could be obligated for any injuries caused to any customer because of the floor which was wet. This is because the janitor owed a duty of care to the people using the bathroom, and he breached that duty by not cleaning the floor properly.
Misfeasance in Tort Law
It means the “Improper performance of some lawful act”. Misfeasance means carrying out legal and improper action, but it is done in such a way that it harms others or causes injury to other people. Sometimes an act of a person causes harm to other people unintentionally. While all these actions are often mistakes committed by a person, there can be legal consequences for such mistakes. Attached to those mistakes, misfeasance is the legal term used for an act which is not illegal but performed in such a way that it harms another individual. There are certain situations in which a person has to perform a duty in the manner prescribed but the person fails to perform duty in a particular manner then it will be an act of misfeasance. Generally, defendants are held liable as the defendant has a duty of care towards the plaintiff but did not perform the duty properly.
In Calveley v. Chief Constable of the Merseyside Police, it was held that for the tort of misfeasance it was necessary that the public officer must have acted maliciously or in bad faith. In the case of Dunlop v. Woollahra Municipal Council, it was held that without malice the claim for misfeasance could not be accepted.
For example, if a doctor performs an operation by using rusted tools or leaves an alien object in the stomach during the procedure. Generally, a civil defendant will be liable for misfeasance as the defendant owes a duty of care towards the plaintiff and did not perform his duty properly, doing an operation is a lawful act but there is an improper performance of the lawful act.
Another example, a janitor is cleaning a restroom in a restaurant and is irresponsible and leaves the floor wet without any warning sign or board. In such a case, he or his employer could be held liable for any injury caused because of the wet floor. This is because the janitor owed a duty of care toward users of the restroom, and he breached that duty by leaving the floor wet and therefore would be held liable. It will come under misfeasance as the act was lawful but there was an improper performance of the lawful act.
In the case of Jasbir Kaur vs the state of Punjab, a newborn baby was missing in the hospital and staff of the hospital was not aware of it. After searching a lot, the newborn child was found dead in the washroom and his one eye was squeezed out. The hospital was held liable as there was negligence on the hospital’s part in performing the act properly. It was misfeasance as the hospital was negligent and there was improper performance of the lawful act.
Difference between Misfeasance and Malfeasance
It refers to the improper performance of a lawful act.
If any person is authorized to construct a road and he constructs the road without putting any sign of warning and if any injury is caused to another person then it will be considered as an act of misfeasance.
It refers to the commission of an unlawful demonstration or act.
Trespass is malfeasance and is actionable per se.
Nonfeasance in Tort Law
Nonfeasance is the failure or omission to perform an obligatory or compulsory act. If a person promises another person to perform a particular act and does not perform it, then it is nonfeasance as the person was responsible for performing the act. Nonfeasance is an act of intentionally neglecting to carry out a duty which is an obligation and because of the failure to perform the duty, someone is harmed or injury has been caused. It harms another person or causes injury to a person’s property. It is the lack of ability associated with the failure of the act. Unless and until a person has a pre-existing relationship he will not be held liable for the failure of the act. It describes inaction rather than action. Court believes that if people are not creating a dangerous situation then also they must take proper care in order to prevent other people from a dangerous situation. The relationships in which a person is forced to do something or is compelled to do something are spouses, family members, school authorities and students, employee and employers, doctor and patients, etc, their duty is to protect each other from danger.
In Municipal Corporation of Delhi vs. Subhagwanti, a clock tower fell down in Chandni Chowk, Delhi, many people were injured and many died. The clock tower was not repaired for many years and the municipal corporation was required to maintain it. The Municipal corporation failed to do so and the tower collapsed. The municipal corporation was held liable as it was their duty to repair the clock which they failed to do. It can be called as nonfeasance as there was an omission in performing the compulsory act.
Difference between Misfeasance and Nonfeasance
It means “improper performance of some lawful act”. Misfeasance means carrying out legal and improper action, but it is done in such a way that it harms others or causes injury to another person.
The term “misfeasance” is utilized in Tort law to describe any act that is lawful yet which has been performed inappropriately or in an unlawful manner.
Nonfeasance, on the other hand, is an omission from discharging duty. But that omission should give rise to an action in torts that must be impressed with some characteristics, namely, malice or bad faith.
The term non-feasance describes the failure to do any act that causes harm to another person.
Difference between Malfeasance, Misfeasance, and Nonfeasance
The word “malfeasance” is derived from the French word “malfaisance”, which means “wrongdoing”.
It means the “commission of an unlawful Act”. Example: trespass.
The word “misfeasance” is derived from the French word “misfeasance”, meaning “to mis-do”.
It means “improper performance of some lawful act”. Example: negligence.
The word “nonfeasance” is derived from the French word “faisance” meaning “action”, and the prefix non– which means not.
Failure or omission to perform an act when there is an obligation to perform that act. Example: omission or wrongful act.
Illustration- A company hires a catering company for providing food and drinks in a retirement party. If the catering company didn’t come then it is considered as a nonfeasance. If the company provides only food and did not provide a drink then it is misfeasance. If the catering company accepts the bribes from somebody to provide poisonous food then it is malfeasance.
There is very little difference between malfeasance, misfeasance and, nonfeasance as malfeasance in the law of tort is the commission of an unlawful act while misfeasance is the commission of a lawful act in an improper manner and nonfeasance means failure to perform an act where there is a necessity to perform the act. In all the three situations injury is caused to one person by another person or there is some damage to the property.
- Boulton vs hardy (1597, CRO. Eliz. 547)
- Jarvis vs May Davies & Co (1936) 1 KB 405
- Calveley v. Chief Constable of the Merseyside Police L  AC 1228,  1 All ER 1025,  2 WLR 624
- Dunlop v. Woollahra Municipal Council 14  AC 158 at 172
- Jasbir Kaur vs the state of Punjab 1995 ACJ 1048, AIR 1995 P H 278, (1995) 110 PLR 343
- Municipal Corporation of Delhi vs. Subhagwanti 1966 AIR 5050
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