Difference between “Misfeasance” and “Nonfeasance”.

During the training sessions, I regularly deliver on broadform liability, I am often asked to explain the meaning of and difference between misfeasance ad nonfeasance.

The term “misfeasance” is used in Tort Law  to describe anact that is normally legal or lawful but which has been performed improperly or in an unlawful way.

Before going on, I would remind the reader that a tort is an act that injures someone in some way, and for which the injured person may sue the wrongdoer for damages. In other words a tort is a negligent or intentional civil wrong not arising out of a contract or statute law.

Generally, a civil Defendant will be liable for misfeasance if the Defendant owed a duty of care toward the Plaintiff, the Defendant breached that duty of care by improperly performing a legal act, and the improper performance resulted in harm to the Plaintiff.

For example, assume that a cleaner is mopping the tile floors in the common area of a shopping centre. If he or she leaves the floor wet, the cleaner or their employer could be liable for any injuries resulting from someone slipping on the wet floor. This is because a cleaner owes a duty of care toward users of the floor within the shopping centre, and he or she may well be found to have breached that duty by leaving the floor wet.

In theory, “Misfeasance” is distinct from “Nonfeasance”. Nonfeasance is a term that describes a failure to act that results in harm to another party. Misfeasance, by contrast, as just shown, describes some affirmative act that, though legal, causes harm.

In practice, the distinction the distinction between “Misfeasance” and “Nonfeasance” can be confusing with a court often have difficulty determining whether harm resulted from a failure to act (nonfeasance) or from an act that was improperly performed (misfeasance).

To illustrate, let me return to the example of the wet floor in the shopping centre. One court could call a resulting injury the product of misfeasance by focusing on the wetness of the floor. The washing of the floor was legal, but the act of leaving the floor wet was improper. Another court could
call a resulting injury the product of nonfeasance by focusing on the cleaner’s failure to post a warning sign.

A similar sounding term is “Malfeasance”. Malfeasance is a comprehensive term used in both Civil and Criminal Law to describe any act that is wrongful. It means. intentionally doing something either legally or morally wrong which one had no right to do. It always involves dishonesty, illegality, or knowingly exceeding authority for improper reasons.

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