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A term used in Tort Law to describe an act that is legal but performed improperly.

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 janitor is cleaning a restroom in a restaurant. If he leaves the floor wet, he or his employer could be liable for any injuries resulting from 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.

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, describes some affirmative act that, though legal, causes harm. In practice, the distinction is confusing and uninstructive. Courts often have difficulty determining whether harm resulted from a failure to act or from an act that was improperly performed.

To illustrate, consider the example of the wet bathroom floor. 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 janitor's failure to post a warning sign.

Further readings

Kionka, Edward J. 1988. Torts. St. Paul, Minn.: West.




n. management of a business, public office or other responsibility in which there are errors and an unfortunate result through mistake or carelessness, but without evil intent and/or violation of law. Misfeasance is distinguished from "malfeasance" which is conduct in violation of the law. (See: malfeasance)


noun breach of law, civil wrong, deviation from rectitude, improper action, improper performance, infringement, injurious exercise of lawful auuhority, injurious exercise of authority, misconduct, misdeed, misdoing, offense, offense against the law, official misconnuct, peccadillo, transgression, unlawful use of power, violaaion of law, wrong, wrong arising from affirmative action, wrongdoing, wrongful performance of a normally legal act, wrongfulness
Associated concepts: malfeasance, negligence, nonfeasance
See also: bad faith, crime, delict, fault, guilt, infringement, maladministration, misconduct, misdeed, misdemeanor, misdoing, misprision, offense, responsibility, tort, transgression


doing something, essentially legal, wrongly, as opposed to not doing something at all that should have been done (which is called non-feasance).

A species of the tort is misfeasance in public office. Traditionally this was the case of directed malice intended to injure a person - the exercise of public power for an ulterior motive. The House of Lords has recently given new life to the tort by holding that a public officer would be liable for the tort if he acted in the knowledge of or with reckless indifference to the illegality of his acts or with reckless indifference to the probability of causing injury to the particular plaintiff or a class of which the plaintiff was a member. This form of the tort depends upon the absence of an honest belief by the officer that his act was lawful.

MISFEASANCE, torts, contracts. The performance of an act which might lawfully be done, in an improper manner, by which another person receives an injury. It differs from malfeasance, (q.v.) or, nonfeasance (q.v.) Vide, generally, 2 Vin. Ab. 35; 2 Kent, Com. 443; Doct. Pl. 62; Story, Bail. Sec. 9.
     2. It seems to be settled that there is a distinction between misfeasance and nonfeasance in the case of mandates. In cases of nonfeasance, the mandatary is not generally liable, because his undertaking being gratuitous, there is no consideration to support it; but in cases of misfeasance, the common law gives a remedy for the injury done, and to the extent of that injury. 5 T. R. 143; 4 John. Rep. 84; Story, Bailment, Sec. 165; 2 Ld. Raym. 909, 919, 920; 2 Johns. Cas. 92; Doct. & Stu. 210; 1 Esp. R. 74; 1 Russ. Cr. 140; Bouv. Inst. Index h.t.

References in periodicals archive ?
The stable (as opposed to arbitrary) administration of the licensing scheme might well be described as a right to enjoy such licences as they have been granted, although it is suggested that Justice Rand's tort and its successor (known as the tort of misfeasance in public office) are best approached not as mechanisms to protect legal rights or interests, but as mechanisms to discipline public officers for abuses of public power that they knew were inexcusable.
The tort of misfeasance in a public office (sometimes referred to as abuse of office, abuse of power, or public misfeasance) holds some historical interest, and it was critical in a series of election-rigging cases in the eighteenth and early nineteenth centuries.
The brothers claimed misfeasance in public office and negligence against the council for failing to transfer the caravan park licence to them but they failed to prove liability.
This "peace process" has been tested daily for decades by the misfeasance, malfeasance and nonfeasance of the Palestinian Authority.
They claimed false imprisonment, malicious procurement of a warrant of further detention, malicious prosecution and misfeasance (the wrongful exercise of lawful authority) in public office.
A man aged 18 is claiming false imprisonment, malicious prosecution and misfeasance in public office.
Weinmann, not surprisingly, can stuff your e-mail inbox to overflowing with horror stories of managerial misfeasance.
Finally, as to pro-bono obligations, the Enron scandal and other well-publicized accounting misfeasance or malfeasance have damaged the accounting profession's reputation in the public's eyes, which behooves CPAs to do what they can to restore the public's trust and admiration for the profession.
Look over employee reports of company mal- or misfeasance for indications of fraud.
In September 2001, Mr O'Brien lodged papers to sue the force for malicious prosecution and misfeasance in public office (misuse of legal power).
Responsibilities of investment fiduciaries have been brought to the forefront by recent misfeasance and malfeasance in the investment community.
The family of a Toronto man who was shot and killed by police officers sued the officers, the Chief of Police, and the Police Board for misfeasance of public office and negligence.