Misfeasance

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Misfeasance, nonfeasance, and malfeasance are types of failure to discharge public obligations existing by common law, custom, or statute.

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The Carta de Logu caused Eleanor of Arborea to be remembered as one of the first lawmakers to set up the crime of misfeasance. [1]

Definition and relevant rules of law

When a contract creates a duty that does not exist at common law, there are three things the parties can do wrong:

For example, if a company hires a catering company to provide drinks and food for a retirement party, and the catering company fails to show up, it is considered nonfeasance. If the catering company shows up but provides only the drinks (but not the food, which was also paid for), it is considered misfeasance. If the catering company accepts a bribe from the client's competitor to undercook the meat, thereby giving those present food poisoning, it is considered malfeasance.

The rule of law laid down is that an action in contract ( ex contractu ) will lie for any of the three. However, an action in tort ( ex delicto ) will lie only in misfeasance or malfeasance. The doctrine was formerly applied to certain callings carried on publicly. [2]

Currently, the terms misfeasance and nonfeasance are most often used with reference to the conduct of municipal authorities with reference to the discharge of their statutory obligations; and it is an established rule that an action lies in favour of persons injured by misfeasance, by negligence in discharge of the duty but that in the case of nonfeasance the remedy is not by action but by indictment or mandamus or by the particular procedure prescribed by the statutes.

This rule is fully established in the case of failure to repair public highways, but in other cases, the courts are astute to find evidence of carelessness in the discharge of public duties and on that basis to award damages to individuals who have suffered.

Misfeasance is also used with reference to the conduct of directors and officers of joint-stock companies. The word is sometimes used as equivalent to malpractice by a medical practitioner.

See also

Related Research Articles

A tort is a civil wrong that causes a claimant to suffer loss or harm, resulting in legal liability for the person who commits the tortious act. Tort law can be contrasted with criminal law, which deals with criminal wrongs that are punishable by the state. While criminal law aims to punish individuals who commit crimes, tort law aims to compensate individuals who suffer harm as a result of the actions of others. Some wrongful acts, such as assault and battery, can result in both a civil lawsuit and a criminal prosecution in countries where the civil and criminal legal systems are separate. Tort law may also be contrasted with contract law, which provides civil remedies after breach of a duty that arises from a contract. Obligations in both tort and criminal law are more fundamental and are imposed regardless of whether the parties have a contract.

Delict is a term in civil and mixed law jurisdictions whose exact meaning varies from jurisdiction to jurisdiction but is always centered on the notion of wrongful conduct.

Tax noncompliance is a range of activities that are unfavorable to a government's tax system. This may include tax avoidance, which is tax reduction by legal means, and tax evasion which is the criminal non-payment of tax liabilities. The use of the term "noncompliance" is used differently by different authors. Its most general use describes non-compliant behaviors with respect to different institutional rules resulting in what Edgar L. Feige calls unobserved economies. Non-compliance with fiscal rules of taxation gives rise to unreported income and a tax gap that Feige estimates to be in the neighborhood of $500 billion annually for the United States.

In criminal law, criminal negligence is a surrogate state of mind required to constitute a conventional offense. It is not, strictly speaking, a mens rea because it refers to an objective standard of behaviour expected of the defendant and does not refer to their mental state.

<span class="mw-page-title-main">Fiduciary</span> Person who holds a legal or ethical relationship of trust

A fiduciary is a person who holds a legal or ethical relationship of trust with one or more other parties. Typically, a fiduciary prudently takes care of money or other assets for another person. One party, for example, a corporate trust company or the trust department of a bank, acts in a fiduciary capacity to another party, who, for example, has entrusted funds to the fiduciary for safekeeping or investment. Likewise, financial advisers, financial planners, and asset managers, including managers of pension plans, endowments, and other tax-exempt assets, are considered fiduciaries under applicable statutes and laws. In a fiduciary relationship, one person, in a position of vulnerability, justifiably vests confidence, good faith, reliance, and trust in another whose aid, advice, or protection is sought in some matter. In such a relation, good conscience requires the fiduciary to act at all times for the sole benefit and interest of the one who trusts.

A fiduciary is someone who has undertaken to act for and on behalf of another in a particular matter in circumstances which give rise to a relationship of trust and confidence.

Guarantee is a legal term more comprehensive and of higher import than either warranty or "security". It most commonly designates a private transaction by means of which one person, to obtain some trust, confidence or credit for another, engages to be answerable for them. It may also designate a treaty through which claims, rights or possessions are secured. It is to be differentiated from the colloquial "personal guarantee" in that a guarantee is a legal concept which produces an economic effect. A personal guarantee by contrast is often used to refer to a promise made by an individual which is supported by, or assured through, the word of the individual. In the same way, a guarantee produces a legal effect wherein one party affirms the promise of another by promising to themselves pay if default occurs.

Assumpsit, or more fully, action in assumpsit, was a form of action at common law used to enforce what are now called obligations arising in tort and contract; and in some common law jurisdictions, unjust enrichment. The origins of the action can be traced to the 14th century, when litigants seeking justice in the royal courts turned from the writs of covenant and debt to the trespass on the case.

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Misprision of felony is a form of misprision, and an offence under the common law of England that is no longer active in many common law countries. Where it was or is active, it is classified as a misdemeanor. It consists of failing to report knowledge of a felony to the appropriate authorities. Exceptions were made for close family members of the felon and where the disclosure would tend to incriminate him of that offence or another.

Malfeasance in office is often grounds for a just cause removal of an elected official by statute or recall election. Malfeasance in office contrasts with "misfeasance in office", which is the commission of a lawful act, done in an official capacity, that improperly causes harm; and "nonfeasance in office," which is the failure to perform an official duty.

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In law, an omission is a failure to act, which generally attracts different legal consequences from positive conduct. In the criminal law, an omission will constitute an actus reus and give rise to liability only when the law imposes a duty to act and the defendant is in breach of that duty. In tort law, similarly, liability will be imposed for an omission only exceptionally, when it can be established that the defendant was under a duty to act.

<span class="mw-page-title-main">Canadian tort law</span> Aspect of Canadian law

Canadian tort law is composed of two parallel systems: a common law framework outside Québec and a civil law framework within Québec. Outside Québec, Canadian tort law originally derives from that of England and Wales but has developed distinctly since Canadian Confederation in 1867 and has been influenced by jurisprudence in other common law jurisdictions. Meanwhile, while private law as a whole in Québec was originally derived from that which existed in France at the time of Québec's annexation into the British Empire, it was overhauled and codified first in the Civil Code of Lower Canada and later in the current Civil Code of Quebec, which codifies most elements of tort law as part of its provisions on the broader law of obligations. As most aspects of tort law in Canada are the subject of provincial jurisdiction under the Canadian Constitution, tort law varies even between the country's common law provinces and territories.

Misfeasance in public office is a cause of action in the civil courts of England and Wales and certain Commonwealth countries. 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. 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.

The following outline is provided as an overview of and introduction to tort law in common law jurisdictions:

In the North American legal system and in US Occupational Safety and Health Administration regulations, willful violation or willful non-compliance is a violation of workplace rules and policies that occurs either deliberately or as a result of neglect.

The fireman's rule is a common law or statutory restriction on tort actions by public safety officials. In general, the fireman's rule bars lawsuits by firefighters, police officers and, in some jurisdictions, all government safety professionals from collecting on damages that occur in the course of their duties even in cases of clear negligence by other parties.

The omissions of individuals are generally not criminalised in English criminal law, save in many instances of a taking on of a duty of care, having contractual responsibility or clearly negligent creation of a hazard. Many comparator jurisdictions put a general statutory duty on strangers to rescue – this is not so in English law. Defenders and reasoners of the position regard it as wrong for the criminal law to punish people in many circumstances for committing no physical act, which it is argued would be an infringement on human autonomy. Academics arguing for reform argue that a social responsibility to assist others should exist, particularly where there would be no danger to the rescuer.

Walker Process Equipment, Inc. v. Food Machinery & Chemical Corp., 382 U.S. 172 (1965), was a 1965 decision of the United States Supreme Court that held, for the first time, that enforcement of a fraudulently procured patent violated the antitrust laws and provided a basis for a claim of treble damages if it caused a substantial anticompetitive effect.

<i>Three Rivers DC v Governor of the Bank of England</i>

Three Rivers DC v Governor of the Bank of England [2001 UKHL 16] is a UK banking law and EU law case concerning government liability for the protection of depositors and the preliminary ruling procedure in the European Union.

References

  1. Virginia Lalli (February 2014). Women in Law. Author House. pp. 18–. ISBN   978-1-4918-6454-8.
  2. R. v. Kilderby, 1669, 1 Will. Saund. 311, 312 c

Wikisource-logo.svg This article incorporates text from a publication now in the public domain : Chisholm, Hugh, ed. (1911). "Nonfeasance". Encyclopædia Britannica (11th ed.). Cambridge University Press.