MALFEASANCE, MISFEASANCE, NON- FEASANCE

MALFEASANCE

Feasance means DOING. The term Malfeasance refers to the actual commission of an unlawful

act. Misfeasance is the commission of an unlawful act such as which are actionable per se and

do not require proof of intention or motive. Thus trespass is an unlawful act; it is an act of

malfeasance. Malfeasance includes wrong which are actionable per se without proof of

negligence or malice. If a highway authority digs a trench on a highway that is an act of

malfeasance.

Example: A enters into the garden of B without his permission or consent. It amounts to

malfeasance.

MISFEASANCE

Misfeasance is the improper performance of a lawful act. A misfeasor is a person who does a

misfeasance. The distinction between malfeasance and misfeasance is that in the former the act

itself is unlawful while in the later the act is lawful but the manner in which it is carried out is

unlawful.

In misfeasance, the defendant is the author of the source of danger to cause damage to the

plaintiff or to his property by his careless conduct. He knows his act may give rise to a tort.

Example: A enters a railway compartment without ticket. B (T.T) enters the compartment. He

demands ticket from A. A cannot produce ticket. B instead of taking legal action pushes A out of

the compartment and he is hurt. B commits misfeasance.

NON- FEASANCE

The term non- feasance means omission to do some act when there is obligation to perform.

The railway companies are required to keep their platform in good condition and order. If the

platform is in bad condition and a passenger is trying to board the train falls down due to

unevenness of the platform, the railway company is guilty of non feasance.

Statutory bodies are not liable for nonfeasance. They are liable for misfeasance and malfeasance.

Where there is a statutory obligation imposed upon a statutory body to repair and maintain roads

it would be liable for non- feasance.

Dholka Town Municipality v. Desaibhai (1913)

The municipal drainage water flowed into plaintiff’s field causing damage to his crops. The

defence of non-feasance was pleaded. The defence was rejected as it did not apply to drainage

works. The municipality was bound to maintain the drainage in proper state of repairs.