Misfeasance: Definition and Comparison to Malfeasance

What Is Misfeasance?

Misfeasance is the act of engaging in a duty but failing to perform it correctly. It is unintentional. Malfeasance, on the other hand, is the willful and intentional act of doing harm.

Key Takeaways

• Misfeasance and nonfeasance are similar, often difficult to differentiate in courts.
• Malfeasance occurs when the act is intentional, while misfeasance is accidental.
• Misfeasance can occur frequently without second-guessing. Nonfeasance is a failure to act when required.
• Corporate legal teams help avoid misfeasance, nonfeasance, or malfeasance.

How Misfeasance Works

Misfeasance refers to purposefully not fulfilling the duties of a contract, but it often occurs unknowingly due to negligence. It is not done with the intent to harm but rather to create a shortcut. Management may do this, believing it will benefit the company, even though it could have negative consequences in the future.

For example, misfeasance could include a public official hiring their sister without realizing it is against the law. Another example is a catering company contracted to provide both food and drinks for a wedding but only provides drinks, forgetting the paid-for food.

In theory, misfeasance differs from nonfeasance, which refers to a failure to act resulting in harm to another party. Misfeasance describes legal but harmful affirmative acts. In practice, the distinction is confusing, and courts struggle to determine whether harm resulted from a failure to act or an improperly performed act.

Participating in misfeasance, malfeasance, or nonfeasance can result in fines and possible jail time.

Misfeasance vs. Malfeasance

In contrast to misfeasance, which is generally an unintentional breach of contract, malfeasance refers to willful and intentional actions that injure a party.

For example, consider a catering company at a wedding. If the company unintentionally fails to uphold a part of the contract, that action is misfeasance. However, if the company accepts a bribe to undercook the meat, intentionally causing food poisoning to the guests, that is malfeasance.

Damages incurred due to malfeasance can be settled through a civil lawsuit, but proving malfeasance in court is often difficult.

Corporate malfeasance involves major and minor crimes committed by company management. These crimes can include intentional acts that harm the corporation or failure to perform duties and adhere to related laws. Such malfeasance can have serious consequences for an industry or a country’s economy. As corporate malfeasance increases, governments enact more laws and preventive measures to minimize its occurrence worldwide.