“Nonfeasance, Misfeasance and Malfeasance under Common Law”

By Vince Cawthron,

In Law, Common Law (also known as judicial precedent or judge-made law, or Case Law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions. Common Law precedes and ranks ‘superior’ to Acts of Parliament Law and is therefore ‘precedent’ (an earlier event or action that is regarded as an example or guide to be considered in subsequent similar circumstances) above Acts of Parliament Law.

Nonfeasance is the failure to act where action is required—wilfully or in neglect.

Malfeasance is the wilful and intentional action that injures a party.

Misfeasance is the wilful inappropriate action or intentional incorrect action or advice.

Malfeasance in public office is often grounds for a just cause removal of an elected official by statute or by recall election.

Misfeasance in public office is a cause of action in the civil courts of England and Wales. It is an action against the holder of a public office, alleging in essence that the office-holder has misused or abused their power. The tort can be traced back to 1703 when Chief Justice Sir John Holt decided that a landowner could sue a police constable who deprived him of his right to vote (Ashby v White). The tort was revived in 1985 when it was used so that French turkey producers could sue the Ministry of Agriculture over a dispute that harmed their sales.

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.

In theory, misfeasance is distinct from Nonfeasance. Nonfeasance is a failure to act that results in harm to another party. Misfeasance, by contrast, is some affirmative act that, though legal, causes harm. In practice, the distinction is confusing and uninstructed. Courts often have difficulty determining whether harm resulted from a failure to act or from an act that was improperly performed.

Under English Law, Misconduct in Public Office is a criminal offence and triable on indictment (and carries with it a maximum sentence of Life imprisonment – https://www.cps.gov.uk/legal-guidance/misconduct-public-office) under Common Law precedent which dates back to the 13th century. It is an Offence confined to those who are Public Office Holders and is committed when the Office Holder acts (or fails to act) in a way that constitutes a breach of the duties of that Office.

Definitions
Willingly – readily; of one’s own free will.

Unwillingly – against one’s wishes; reluctantly.
Wittingly – fully aware of what one is doing and what the consequences will be.

Unwittingly – without being aware; unintentionally”.