Malfeasance Misfeasance and Nonfeasance in Tort Law - Law Assignment Help

Assignment Task :

1.Introduction

1.1 Tort

Tort is a word derived from Latin word ‘Tortum’ meaning, translating to ‘Crooked’ or ‘twisted’. Everyone living in a civilised society is expected to behave in a straight forward manner but when someone deviates from this straight path into the twisted crooked path, he is said to have committed a Tort. A tort is an act or omission of an act that gives rise to injury or harm to the other person and the harm or damage caused by the tort can be compensated by the plaintiff with a civil suit. 

‘The first reported use of the word tort is in Boulton v. Hardy, (1597) Cro.Eliz.547, 548. SALMOND AND HEUSTON. Law of Torts, (1992) (20th edition) f.n.54.’. Malfeasance, Misfeasance and Nonfeasance are three terms used in the law of Torts, also called the Civil Law.

1.2 Malfeasance

Mala Fide intention is when the person does an act in bad faith or doing an act without any particular justification or any excuse. An act that does not require allegations or proof of damages suffered by the plaintiff is called actionable per se. 

The malfeasance is applied to an unlawful action which is not supposed to be done. It is not necessarily an act done with an immoral purpose or intention, also called Mala Fide intention, but the person has proper knowledge that the act he is committing is outside the boundaries of law. Therefore it can be said that Malfeasance is applicable actionable per se and do not require evidence of intent or purpose. Instances of bribery, trespassing and robbery are some examples of malfeasance. The term malfeasance is used under both civil law and criminal law.

1.3 Misfeasance

Negligence is when a person fails to execute a level of care any other prudent person in his situation would. Negligence could be doing an unreasonable act or omission of an act.

While Malfeasance is performing an act outside the legal boundaries, Misfeasance applies to performance of a legal act, but in such a manner that it harms other individuals or leads to damages for the other person. The defendant will only be liable under the grounds of Misfeasance if he owed a duty of care towards the plaintiff and he breached this duty of care by performing the legal act in an improper manner which resulted in legal damage or harm to the plaintiff. And unlike in Malfeasance, Misfeasance requires the mala Fide intention. Meaning the defendant will only be liable if proper measures were not taken by him during the act as concluded in ‘Calveley v. Chief Constable of the Merseyside Police’ and ‘Dunlop v. Woollahra Municipal Council’. Misfeasance includes Negligence. Hence, actions which were the result of an accident and actions resulting in damages even after proper care by the defendant do not come under acts of misfeasance.

1.4 Nonfeasance

An act of intentionally neglecting to carry out duty which was an obligation or a compulsion for the person who neglected; and the failure or omission of the act has caused harm or lead to damages for someone is called Nonfeasance. A person will not be liable for the failure of the act only if he had a pre-existing relationship with the person who claims for the damages. Thus, actions like failing to save a drowning person’s life do not come under acts of Nonfeasance. Instead, failure in looking after kids in a day-care which lead to the kid drinking toxic ink comes under the acts of Nonfeasance. 

The basic difference between Malfeasance, Misfeasance and Nonfeasance can be understood with the help of an example here. If a man books a catering service for his daughter’s birthday party and the food does not show up it can be called Nonfeasance. But if the food arrives but not with the menu that has been ordered, it comes under misfeasance. If the catering service company takes a bribe from the man’s rival and mixes poison in the food, that is Malfeasance.

1.5 Landmark judgement on Malfeasance, Misfeasance and Nonfeasance

1.5.1 ‘Jay Laxmi Salt Works (P) Ltd. Vs. State of Gujarat’

In this case, High Court of Gujarat concluded that the words Malfeasance, Misfeasance and Nonfeasance were to be treated equal to Tort and they were collectively, synonyms of Tort. Tort law is based and structured around the morality that no person has the right to deliberately or even innocently hurt others.

2. Research objectives

2.1 To understand exactly what type of wrongs come under malfeasance and misfeasance and nonfeasance.

2.2 To understand what is the exact criteria for an act to be of misfeasance. 

2.3 To understand what is the exact criteria for an act to be of nonfeasance. 

2.4 To understand the role of malfeasance, misfeasance and nonfeasance in Indian civil law.

2.5 To understand the development in the laws of malfeasance, misfeasance and nonfeasance.

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