P W ON: Roject ORK

PROJECT WORK ON
MALFEASANCE , MISFEASANCE,
NONFEASANCE
CHANAKYA NATIONAL LAW UNIVERSITY
SUBMITTED TO: SUBMITTED BY:

MRS. SISHMITA SINGH NAME : NEHA
ROLL NO. : 1347
SEMESTER : 1ST
MALFEASANCE, MISFEASANCE AND NONFEASANCE
ACKNOWLEDGEMENT
“ IF YOU WANT TO WALK FAST GO ALONE

IF YOU WANT TO WALK FAR GO TOGETHER ”
A project is a joint endeavor which is to be accomplished with utmost compassion, diligence and with
support of all. Gratitude is a noble response of one’s soul to kindness or help generously rendered by another
and its acknowledgement is the duty and joyance. I am overwhelmed in all humbleness and gratefulness to
acknowledge from the bottom of my heart to all those who have helped me to put these ideas, well above the
level of simplicity and into something concrete effectively and moreover on time.
This project would not have been completed without combined effort of my revered teacher MRS.
SISHMITA SINGH whose support and guidance was the driving force to successfully complete this project.
I express my heartfelt gratitude to him .Thanks are also due to my parents, family , siblings , my dear friends
and all those who helped me in this project in any way . Last but not the least, I would like to express my
sincere gratitude to our English teacher for providing us with such a golden opportunity to showcase our
talents . Also this project was instrumental in making us know more about the writ mechanism available for
justice delivery. It gave us a special insight on the writ of quo warranto and its pivotal role in legal system
and providing justice in Indian courts. It was truly an endeavour which enabled me to embark on a journey
which redefined my intelligentsia induced my mind to discover the intricacies involved in justice delivery
mechanism.
Moreover, thanks to all those who helped me in any way be it words, presence
encouragement or blessings...
- NEHA
1st semester
1
CONTENT PAGE
SERIAL NO. NAME OF CHAPTER PAGE NO.
1. DECLARATION BY THE CANDIDATE 4
2. LIST OF CASES 5
3. RESEARCH METHODS: 6 TO 8
 AIMS AND OBJECTIVES

 HYPOTHESIS
 LIMITATIONS
 REVIEW OF LITERATURE
 RESEARCH METHODOLOGY
 SOURCES OF DATA
4. INTRODUCTION TO LAW OF TORTS 9 TO 22
5. MALFEASNCE, MISFEASANCE 22 TO 32
AND NONFEASANCE:
(i) HISTORY
(ii) DEFINITION
6. 32 TO 35
DIFFERENCE BETWEEN
MALFEASANCE, MISFEASANCE AND
NONFEASANCE
7. CONCLUSION AND SUGGESTION 35 TO 37
BIBLIOGRAPHY 38 TO 39
2
CITATION 40 TO 41
3
DECLARATION BY THE CANDIDATE
I hereby declare that the work reported in the B.A. LL.B (Hons.) Project Report entitle
“MALFEASANCE , MISFEASANCE, NONFEASANCE” submitted at Chanakya National Law
University, Patna is an authentic record of my work carried out under the supervision of MRS.
SISHMITA SINGH.I have not submitted this work elsewhere for any other degree or diploma. I am
fully responsible for the contents of my Project Report.
(Signature of the Candidate)

NEHA
Chanakya National Law University, Patna
10/10/2015
4
LIST OF CASES
INDIAN CASES:
 Khairul Bahsar v. Thana Lal AIR 1957.
 Jai Laxmi Salt Work(s) pvt. Ltd. v. State Of Gujrat(1994) SCC1.
 Padmavati v. Dugganaika.
 Bhim Singh v. State of J & K.
 Rogers v. Ranjendro Dutt.
 M.C. Mehta v. Union of India .
FOREIGN CASES:
 State Farm Mutual Auto Insurance Co. v. Grain Belt Breweries,

 Inc.
 Lundgren v. Fultz.
 Yania V. Bigan.
 Ashby V. White.
 Proksch v. Bottendorf 218 Lowa 1376(1934).
 Touchette v. Ganal.
 Rylands v. Fletcher.
 Wooldrige v. Sumner.
 Hall v. Brooklands Auto Racing Club.
 Mogul Steamship Co. v. McGregor Gow and Co.
 Gloucester Grammar School Case.
 Gordon v. Lee, 133 Me. 361, 178 A. 353, 355)
5
AIMS AND OBJECTIVES :
The researcher intends to find out the following:

1. The meaning and application of the legal term malfeasance in Indian legal system.
2. The meaning and application of the legal term misfeasance in Indian legal system.
3. The meaning and application of the legal term nonfeasance in Indian legal system.
4. The difference between malfeasance, misfeasance and nonfeasance in words and in application.
HYPOTHESIS
The researcher has formulated the following hypothesis the validity of which has been tested during the
course of project:
1. If the defendant owes a duty of care to the plaintiff there is a breach of that duty by performance of a
illegal act resulting in harm to him then the defendant shall be liable for malfeasance.
2. If the defendant owes a duty of care to the plaintiff there is a breach of that duty by improper
performance of a legal act resulting in harm to him then the defendant shall be liable for misfeasance.
3. If the defendant owes a duty of care to the plaintiff there is a breach of that duty by omission in
performance of a legal act resulting in harm to him then the defendant shall be liable for nonfeasance.
LIMITATIONS
The presented research is confined to a time limit of one month and this research contains
only doctrinal works which are limited to library sources.
REVIEW OF LITERATURE
The researcher intends to examine the secondary sources in thus project. The secondary sources include
books, websites and photographs.
6
RESEARCH METHODOLOGY
The researcher will be using only doctrinal methods of research. The researcher will be using library for
doctrinal research. The sources are mentioned in the review of literature.
SOURCES OF DATA :
SECONDARY SOURCES :
1. Books:
 The law lexicon by Dr. Shakil Ahmad Khan
 The law of torts by Ratanlal and Dhirajlal
 The law of torts by R.k. Bangia
 TORTS: THE FAILINGS OF THE MISFEASANCE/NONFEASANCE DISTINCTION
AND THE SPECIAL RELATIONSHIP REQUIREMENT IN THE CRIMINAL ACTS OF
THIRD PERSONS—STATE V. BACK by Brian D. Bender.
 Legal methods by G.P. Tripathi
 Legal research methodology by Rattan Singh
2. Websites:.
 http://www.lawnotes.in/Law_of_Torts#ixzz3obGag274.
 http://www.lawnotes.in/Law_of_Torts#ixzz3obHYu7vh.
 http://www.lawnotes.in/Law_of_Torts#ixzz3obIlGFAn.
 http://www.lawnotes.in/Law_of_Torts#ixzz3obI6XAA1.
 http://www.lawnotes.in/Law_of_Torts#ixzz3odEtIaQg.
 http://www.lawnotes.in/Law_of_Torts_in_India#ixzz3odcNf4Vq.
 http://web.wmitchell.edu/law-review/wp-content/uploads/Volume37/documents/Bender.2.pdf.
 http://www.legalservicesindia.com/article/article/malfeasance-misfeasance-and-nonfeasance-in-tort-
law-1266-1.html.
 https://intellectualselfdefence.wordpress.com/2011/06/26/malfeasance-misfeasance-and-
nonfeasance/.
7
 www.slideshare.net.
 http://notes-law.blogspot.in/2008/08/law-on-torts-part-1.html.
 http://www.slideshare.net/Rajavenkatesan15121982/law-of-tortsupdated06082015.
 http://www.legalserviceindia.com/articles/torts_s.htm.
 http://www.lawnotes.in/Law_of_Torts_in_India.
 http://notes-law.blogspot.in/2008/08/law-on-torts-part-1.html
 http://slideplayer.com/slide/3296743/.
 http://www.slideshare.net/ajeshktk/laws-torts.
 http://www.lawnotes.in/Law_of_Torts.
 http://www.legalserviceindia.com/articles/torts_s.htm
8
INTRODUCTION
Law is any rule of human conduct accepted by the society and enforced by the state for the betterment of
human life. In a wider sense it includes any rule of human action for example, religious, social, political and
moral rules of conduct. However, only those rules of conduct of persons which are protected and enforced
by the state do really constitute the law of the land in its strict sense. According to Salmond the law consists
of rules recognized and acted on by courts of justice. The entire body of law in a state (corpus juris) may be
divided into two, viz, civil and criminal.
Civil law: The term may be used in two senses. In one sense it indicates the law of a particular state as
distinct from its external law such as international law. On the other side, in a restricted sense civil law
indicates the proceedings before civil courts where civil liability of individuals for wrongs committed by
them and other disputes of a civil nature among them are adjudicated upon and decided. Civil wrong is the
one which gives rise to civil proceedings, i.e., proceedings which have for their purpose the enforcement of
some right claimed by the plaintiff as against the defendant. For example, an action for the recovery of debt,
restitution of property, specific performance of a contract etc. he who proceeds civilly is a claimant or
plaintiff demanding the enforcement of some right vested in him and the remedy he seeks is compensatory
or preventive in nature.
Criminal Law: Criminal laws indicate the proceedings before the criminal courts where the criminal
liability of persons who have committed wrongs against the state and other prohibited acts are determined.
Criminal proceedings on the other hand are those which have for their object the punishment of the wrong
doer for some act of which he is accused. He who proceeds criminally is an accuser or prosecutor demanding
nothing for him but merely the punishment of the accused for the offence committed by him.1
The term 'Tort' means a wrongful act committed by a person, causing injury or damage to another, thereby
the injured institutes (files) an action in Civil Court for a remedy viz., unliquidated damages or injunction or
restitution of property or other available relief. Unliquidated damages means the amount of damages to be
fixed or determined by the Court.
The person who commits or is guilty of a tort is called a "tortfeasor". (Gordon v. Lee, 133 Me. 361, 178 A.
353, 355)
1
http://www.legalserviceindia.com/articles/torts_s.htm.
9
The person who suffered injury or damage by a tortfeasor is called injured or aggrieved.
Tort is a common law term and its equivalent in Civil Law is "Delict".
In general, the victim of a tortuous act is the plaintiff in a tort case.

As a general rule, all persons have the capacity to sue and be sued in a tort.
Tort Law provides an avenue for an injured person of a remedy. It does not provide a guarantee of recovery.2
Types of Wrongs
Wrong can be of two types - Public and Private. Tort is a Private Wrong, whereas Crime is a Public Wrong.
Torts are tried in Civil Courts.
Wrong
 Public wrong - These are acts that are tried in Criminal Courts and are punishable under the
Penal Law (such as the Indian Penal Code, 1860 in India)
 Private wrong - These are acts against an individual person or a person within a community
and are tried in Civil Courts.
Origin
The 'Law of Torts' owes its origin to the Common Law of England. It is well developed in the UK, USA
and other advanced Countries. In India, Law of Torts is non codified, like other branches of law eg: Indian
Contract Act, 1872 and Indian Penal Code, 1860. It is still in the process of development.
A tort can take place either by commission of an act or by omission of an act.3
2
http://www.lawnotes.in/Law_of_Torts.
3
http://www.lawnotes.in/Law_of_Torts.
10
Definition of Tort
The term tort is the French equivalent of the English word ‘wrong’ and of the Roman law term ‘delict’. The
word tort is derived from the Latin word tortum which means twisted or crooked or wrong and is in contrast
to the word rectum which means straight. Everyone is expected to behave in a straightforward manner and
when one deviates from this straight path into crooked ways he has committed a tort. Hence tort is a conduct
which is twisted or crooked and not straight. As a technical term of English law, tort has acquired a special
meaning as a species of civil injury or wrong. It was introduced into the English law by the Norman jurists.
Tort now means a breach of some duty independent of contract giving rise to a civil cause of action and for
which compensation is recoverable. In spite of various attempts an entirely satisfactory definition of tort still
awaits its master. In general terms, a tort may be defined as a civil wrong independent of contract for which
the appropriate remedy is an action for unliquidated damages. Some other definitions for tort are given
below:
Winfield and Jolowicz- Tortuous liability arises from the breach of a duty primarily fixed by law; this duty is
towards persons generally and its breach is redressible by an action for unliquidated damages.
Salmond and Hueston- A tort is a civil wrong for which the remedy is a common action for unliquidated
4
http://www.slideshare.net/ajeshktk/laws-torts.
11
damages, and which is not exclusively the breach of a contract or the breach of a trust or other mere
equitable obligation.
Sir Frederick Pollock- Every tort is an act or omission (not being merely the breach of a duty arising out of a
personal relation, or undertaken by contract) which is related in one of the following ways to harm
(including reference with an absolute right, whether there be measurable actual damage or not), suffered by a
determinate person:-
a) It may be an act which, without lawful justification or excuse, is intended by the agent to cause harm, and
does cause the harm complained of.
b) It may be an act in itself contrary to law, or an omission of specific legal duty, which causes harm not
intended by the person so acting or omitting.
c) It may be an act violation the absolute right (especially rights of possession or property), and treated as
wrongful without regard to the actor’s intention or knowledge. This, as we have seen is an artificial
extension of the general conceptions which are common to English and Roman law.
d) It may be an act or omission causing harm which the person so acting or omitting to act did not intend to
cause, but might and should with due diligence have foreseen and prevented.
e) It may, in special cases, consist merely in not avoiding or preventing harm which the party was bound
absolutely or within limits, to avoid or prevent.5
Types of Torts
Broadly speaking, Torts are of three types:
1. Intentional Torts
 Against the Person: Assault, Battery, Infliction of mental distress, False imprisonment
 Against the Property
2. Negligence
3. Strict Liability
Characteristics :
1. Tort, is a private wrong, which infringes the legal right of an individual or specific group of
individuals.
2. The person, who commits tort is called "tort-feasor" or "Wrong doer"
3. The place of trial is Civil Court.
4. Tort litigation is compoundable i.e. the plaintiff can withdraw the suit filed by him.
5
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5. Tort is a specie of civil wrong.

6. Tort is other than a breach of contract
7. The remedy in tort is unliquidated damages or other equitable relief to the injured.
Essential elements to prove a Tort :

 Existence of legal duty from defendant to plaintiff
 Breach of duty
 Damage as proximate result.
6
www.slideshare.net.
7
http://slideplayer.com/slide/3296743/.
8
www.slideshare.net.
13
The Law of Torts In India

Under the Hindu law and the Muslim law tort had a much narrower conception than the tort of the English
law. The punishment of crimes in these systems occupied a more prominent place than compensation for
wrongs. The law of torts in India is mainly the English law of torts which itself is based on the principles of
the common law of England. This was made suitable to the Indian conditions appeasing to the principles of
justice, equity and good conscience and as amended by the Acts of the legislature. Its origin is linked with
the establishment of British courts in India.
The expression justice, equity and good conscience was interpreted by the Privy Council to mean the rules of
English Law if found applicable to Indian society and circumstances. The Indian courts before applying any
rule of English law can see whether it is suited to the Indian society and circumstances. The application of
the English law in India has therefore been a selective application. On this the Privy Council has observed
that the ability of the common law to adapt itself to the differing circumstances of the countries where it has
taken roots is not a weakness but one of its strengths. Further, in applying the English law on a particular
point, the Indian courts are not restricted to common law. If the new rules of English statute law replacing or
modifying the common law are more in consonance with justice, equity and good conscience, it is open o the
courts in India to reject the outmoded rules of common law and to apply the new rules. For example, the
principles of English statute, the Law Reform (Contributory Negligence) Act, 1945, have been applied in
India although there is still no corresponding Act enacted by Parliament in India.
The development in Indian law need not be on the same lines as in England. In M.C. Mehta v. Union of
India , Justice Bhagwati said, we have to evolve new principles and lay down new norms which will
adequately deal with new problems which arise in a highly industrialized economy. We cannot allow our
judicial thinking to be constructed by reference to the law as it prevails in England or for the matter of that in
any foreign country. We are certainly prepared to receive light from whatever source it comes but we have to
build our own jurisprudence.
It has also been held that section 9 of The Code of Civil Procedure, which enables the civil court to try all
suits of a civil nature, impliedly confers jurisdiction to apply the Law of Torts as principles of justice, equity
and good conscience. Thus the court can draw upon its inherent powers under section 9 for developing this
field of liability.
14
In a more recent judgement of Jay Laxmi Salt Works (p) ltd. v. State of Gujarat, Sahai, J., observed: truly
speaking the entire law of torts is founded and structured on morality. Therefore, it would be primitive to
close strictly or close finally the ever expanding and growing horizon of tortuous liability. Even for social
development, orderly growth of the society and cultural refineness the liberal approach to tortious liability
by court would be conducive.
Constituents of Tort
The law of torts is fashioned as an instrument for making people adhere to the standards of reasonable
behaviour and respect the rights and interests of one another. This it does by protecting interests and by
providing for situations when a person whose protected interest is violated can recover compensation for the
loss suffered by him from the person who has violated the same. By interest here is meant a claim, want or
desire of a human being or group of human beings seeks to satisfy, and of which, therefore the ordering of
human relations in civilized society must take account. It is however, obvious that every want or desire of a
person cannot be protected nor can a person claim that whenever he suffers loss he should be compensated
by the person who is the author of the loss. The law, therefore, determines what interests need protection and
it also holds the balance when there is a conflict of protected interests.
Every wrongful act is not a tort. To constitute a tort,
# There must be a wrongful act committed by a person;
# The wrongful act must be of such a nature as to give rise to a legal remedy and
# Such legal remedy must be in the form of an action for unliquidated damages.
I. Wrongful Act
An act which prima facie looks innocent may becomes tortious, if it invades the legal right of another
person. In Rogers v. Ranjendro Dutt , the court held that, the act complained of should, under the
circumstances, be legally wrongful, as regards the party complaining. That is, it must prejudicially affect him
in some legal right; merely that it will however directly, do him harm in his interest is not enough.
A legal right, as defined by Austin, is a faculty which resides in a determinate party or parties by virtue of a
given law, and which avails against a party (or parties or answers to a duty lying on a party or parties) other
than the party or parties in whom it resides. Rights available against the world at large are very numerous.
They may be divided again into public rights and private rights. To every right, corresponds a legal duty or
obligation. This obligation consists in performing some act or refraining from performing an act.
15
Liability for tort arises, therefore when the wrongful act complained of amounts either to an infringement of
a legal private right or a breach or violation of a legal duty.
II. Damage
In general, a tort consists of some act done by a person who causes injury to another, for which damages are
claimed by the latter against the former. In this connection we must have a clear notion with regard to the
words damage and damages. The word damage is used in the ordinary sense of injury or loss or deprivation
of some kind, whereas damages mean the compensation claimed by the injured party and awarded by the
court. Damages are claimed and awarded by the court to the parties. The word injury is strictly limited to an
actionable wrong, while damage means loss or harm occurring in fact, whether actionable as an injury or
not.
The real significance of a legal damage is illustrated by two maxims, namely, Damnum Sine Injuria and
Injuria Sine Damno.
(i) Damnum Sine Injuria (Damage Without Injury)

There are many acts which though harmful are not wrongful and give no right of action to him who
suffers from their effects. Damage so done and suffered is called Damnum Sine Injuria or damage
without injury. Damage without breach of a legal right will not constitute a tort. They are instances of
damage suffered from justifiable acts. An act or omission committed with lawful justification or
excuse will not be a cause of action though it results in harm to another as a combination in
furtherance of trade interest or lawful user of one’s own premises. In Gloucester Grammar School
Master Case , it had been held that the plaintiff school master had no right to complain of the opening
of a new school. The damage suffered was mere damnum absque injuria or damage without
injury. Acton v. Blundell, in which a mill owner drained off underground water running into the
plaintiff’s well, fully illustrate that no action lies fro mere damage, however substantial, caused
without the violation of some right.
There are moral wrongs for which the law gives no remedy, though they cause great loss or
detriment. Los or detriment is not a good ground of action unless it is the result of a species of wrong
of which the law takes no cognizance.
There are cases in which the law will suffer a man knowingly and wilfully to inflict harm upon another,
and will not hold him accountable for it.

16
Gloucester Grammar School Case- The defendant, a schoolmaster, set up a rival school to that of the
Plaintiff. Because of the competition, the plaintiffs had to reduce their fees from 40 pence to 12 pence per
scholar per quarter. It was held that the plaintiffs had no remedy for the loss thus suffered by them.
Mogul Steamship Co. v. McGregor Gow and Co.- A number of steamship companies combined together and
drove the plaintiff company out of the tea-carrying trade by offering reduced freight. The House of Lords
held that the plaintiff had no cause of action as the defendant had by lawful means acted to protect and
extend their profits.9
(ii) Injuria Sine Damno ( injury without damage)

This means an infringement of a legal private right without any actual loss or damage. In such a case
the person whose right has been infringed has a good cause of action. It is not necessary for him to
prove any special damage because every injury imports a damage when a man in hindered of his
right. Every person has an absolute right to property, to the immunity of his person, and to his liberty,
and an infringement of this right is actionable per se. actual perceptible damage is not, therefore,
essential as the foundation of an action. It is sufficient to show the violation of a right in which case
the law will presume damage. Thus in cases of assault, battery, false imprisonment, libel, trespass on
land, etc., the mere wrongful act is actionable without proof of special damage. The court is bound to
award to the plaintiff at least nominal damages if no actual damage is proved. This principle was
firmly established by the election case of Ashby v. White, in which the plaintiff was wrongfully
prevented from exercising his vote by the defendants, returning officers in parliamentary election.
The candidate for whom the plaintiff wanted to give his vote had come out successful in the election.
Still the plaintiff brought an action claiming damages against the defendants for maliciously
preventing him from exercising his statutory right of voting in that election. The plaintiff was
allowed damages by Lord Holt saying that there was the infringement of a legal right vested in the
plaintiff.
Cases related to Injuria Sine Damno:
Bhim Singh v. State of J & K – The petitioner, an MLA, of J & K Assembly, was wrongfully
detained by the police while he was going to attend the Assembly session. He was not produced
before the Magistrate within the requisite period. As a consequence of this, the member wad deprived
of his constitutional right to attend the Assembly session. There was also violation of fundamental
right guaranteed under the Constitution. By the time the petition was decided by the Supreme Court,
9
http://notes-law.blogspot.in/2008/08/law-on-torts-part-1.html.
17
Bhim Singh had been released, but by way of consequential relief, exemplary damages amounting to
50,000 were awarded to him.10
III. Remedy
The law of torts is said to be a development of the maxim ‘ubi jus ibi remedium’ or ‘there is no
wrong without a remedy’. If a man has a right, he must of necessity have a means to vindicate and
maintain it and a remedy if he is injured in the exercise or enjoyment of it; and indeed it is a vain
thing to imagine a right without remedy; want of right and want of remedy are reciprocal.
Where there is no legal remedy there is no wrong. But even so the absence of a remedy is evidence
but is not conclusive that no right exists.
Some General Conditions In Torts:

1. Act And Omission- To constitute a tort there must be a wrongful act, whether of omission or
commission, but not such acts as are beyond human control and as are entertained only in thoughts. An
omission is generally not actionable but it is so exceptionally. Where there is a duty to act an omission may
create liability. A failure to rescue a drowning child is not actionable, but it is so where the child is one’s
own. A person who voluntarily commences rescue cannot leave it half the way. A person may be under duty
to control natural happenings to his own land so as to prevent them from encroaching others’ land.
2. Voluntary and Involuntary Acts- a voluntary act has to be distinguished from an involuntary act
because the former may involve liability and the latter may not. A self willed act like an encroachment for
business, is voluntary, but an encroachment for survival may be involuntary. The wrongfulness of the act
and the liability for it depends upon legal appreciation of the surrounding circumstances.
Some case related to voluntary act:
10
18
Hall v. Brooklands Auto Racing Club- The plaintiff was a spectator at a motor car race being held at
Brooklands on a track owned by the defendant company. During the race, there was a collision between two
cars, one of which was thrown among the spectators, thereby injuring the plaintiff. It was held that the
plaintiff impliedly took the risk of such injury, the danger being inherent in the sport which any spectator
could foresee, the defendant was not liable.

Padmavati v. Dugganaika- While the driver was taking the jeep for filling petrol in the tank, two strangers
took lift in the jeep. Suddenly one of the bolts fixing the right front wheel to the axle gave way toppling the
jeep. The two strangers were thrown out and sustained injuries, and one of them died as a consequence of the
same.
It was held that neither the driver nor his master could be made liable, first, because it was a case of sheer
accident and, secondly, the strangers had voluntarily got into the jeep and as such, the principle of volenti
non fit injuria was applicable to this case.

Wooldrige v. Sumner- The plaintiff, who was a photographer, was taking photographs at a horse show while
he was standing at the boundary of the arena. One of the horses, belonging to the defendant, rounded the
bend too fast. As the horse galloped furiously, the plaintiff was frightened and he fell into the horses’ course
and there he was seriously injured by the galloping horse. The horse in question won the competition. It was
held that since the defendants had taken due care, they were not liable. The duty of the defendants was the
duty of care rather than duty of skill.11

3. Malice- malice is not essential to the maintenance of an action for tort. It is of two kinds, ‘express malice’
(or malice in fact or actual malice) and ‘malice in law’ (or implied malice). The first is what is called malice
in common acceptance and means ill will against a person; the second means a wrongful act done
intentionally without just cause or excuse. Where a man has a right to do an act, it is not possible to make his
exercise of such right actionable by alleging or proving that his motive in the exercise was spite or malice in
the popular sense. An act, not otherwise unlawful, cannot generally be made actionable by an averment that
it was done with evil motive. A malicious motive per se does not amount to injuria or legal wrong.
Wrongful acts of which malice is an essential element are:
# Defamation,
# Malicious prosecution,
# Willful and malicious damage to property,
# Maintenance, and
11
http://notes-law.blogspot.in/2008/08/law-on-torts-part-1.html
19
# Slander of title.
4. Intention, motive, negligence and recklessness- The obligation to make reparation for damage caused
by a wrongful act arises from the fault and not from the intention. Any invasion of the civil rights of another
person is in itself a legal wrong, carrying with it liability to repair it necessary or natural consequences, in so
far as these are injurious to the person whose right is infringed, whether the motive which prompted it be
good, bad or indifferent. A thing which is not a legal injury or wrong is not made actionable by being done
with a bad intent. It is no defence to an action in tort for the wrong doer to plead that he did not intend to
cause damage, if damage has resulted owing to an act or omission on his part which is actively or passively
the effect of his volition. A want of knowledge of the illegality of his act or omission affords no excuse,
except where fraud or malice is the essence of that act or omission. For every man is presumed to intend and
to know the natural and ordinary consequences of his acts. This presumption is not rebutted merely by proof
that he did not think of the consequences or hoped or expected that they would not follow. The defendant
will be liable for the natural and necessary consequences of his act, whether he in fact contemplated them or
not.
5. Malfeasance, misfeasance and nonfeasance- the term ‘malfeasance’ applies to the commission of an

unlawful act. It is generally applicable to those unlawful acts, such as trespass, which are actionable per se
and do not require proof of negligence or malice. The term ‘misfeasance’ is applicable to improper
performance of some lawful act. The term ‘nonfeasance’ applies to the failure or omission to perform some
act which there is an obligation to perform.
6. Fault- liability for tort generally depends upon something done by a man which can be regarded as a fault
for the reason that it violates another man’s right. But liability may also arise without fault. Such liability is
known as absolute or strict liability. An important example is the rule in Rylands v. Fletcher thus the two
extremes of the law of tort are of non liability even where there is fault or liability without fault. Between
these two extremes is the variety of intentional and negligent wrongs to the question whether there is any
consistent theory of liability, all that can be said is that it wholly depends upon flexible public policy, which
in turn is a reflection of the compelling social needs of the time.
General Principles of Liability:

There are two theories with regard to the basic principle of liability in the law of torts or tort.
20
They are:
# Wider and narrower theory- all injuries done by one person to another are torts, unless there is some
justification recognized by law.
# Pigeon-hole theory- there is a definite number of torts outside which liability in tort does not exist.
The first theory was propounded by Professor Winfield. According to this, if I injure my neighbour, he can
sue me in tort, whether the wrong happens to have a particular name like assault, battery, deceit or slander,
and I will be liable if I cannot prove lawful justification. This leads to the wider principle that all
unjustifiable harms are tortious. This enables the courts to create new torts and make defendants liable
irrespective of any defect in the pleading of the plaintiff. This theory resembles the saying, my duty is to hurt
nobody by word or deed. This theory is supported by Pollock and courts have repeatedly extended the
domain of the law of torts. For example, negligence became a new specific tort only by the 19th century AD.
Similarly the rule of strict liability for the escape of noxious things from one’s premises was laid down in
1868 in the leading case if Rylands v. Fletcher.
The second theory was proposed by Salmond. It resembles the Ten Commandments given to Moses in the
bible. According to this theory, I can injure my neighbour as much as I like without fear of his suing me in
tort provided my conduct does not fall under the rubric of assault, deceit, slander or any other nominate tort.
The law of tort consists of a neat set of pigeon holes, each containing a labelled tort. If the defendant’s
wrong does not fit any of these pigeon holes he has not committed any tort.12
The subject of Law of Torts is well developed in countries like USA, UK etc. It is still in the process of
development and adaptation in India due to the lack of triple activism.
1. Activism in People - In England and other advanced countries, people approach court even for
simple cases. However, in India because of poverty, illiteracy, spirit of toleration and lack of legal
know-how, the people are reluctant to approach courts.
2. Activism in Judiciary - In India, the number of Courts and judicial offers is very limited and the
cost of litigation is highly expensive. There is an inordinate delay in disposal of cases.
3. Activism in Legislature - British legislature passes legislation well in advance wherever necessary.
 In the Indian system, punishments for crime is given more importance than compensation for
wrongs.
12
21
 Negligence is a part of common law of India. There are several legislation for other forms of
statutory torts such as Consumer Protection Act, 1986; the Motor Vehicles Act, 1988;the Workmen's
Compensation Act, 1923, and the Public Liability Insurance Act, 1992.
 Sources of Indian Tort Law includes both Common law and Statutory law remedies.13
MALFEASNCE, MISFEASANCE AND NONFEASANCE

HISTORY
The distinction between misfeasance and nonfeasance has played an important role in our application of
negligence law even though the meaning of the words misfeasance and nonfeasance can be confusing at
best. To help understand the confusion that this distinction represents, this section will discuss the origins
of the distinction, the duty element of negligence, and some of the approaches the courts have used to try
and navigate situations where the misfeasance/nonfeasance determination is not clear-cut.
The Origins of the Misfeasance/Nonfeasance Distinction and Its Use in the Duty Analysis: At early
common law, there was no distinction between nonfeasance and misfeasance. Not until the 1800s did the
distinction begin to crystallize, some say in error. In American jurisprudence, the maturation of this idea
has been traditionally traced to Justice Cardozo. However, even at the time of Cardozo’s decisions,
confusion regarding the misfeasance/nonfeasance distinction was already apparent. Cardozo himself
characterized the formulation as “ incomplete . . . and so at times misleading.” Nevertheless, many
jurisdictions—including Minnesota—have utilized the misfeasance/nonfeasance distinction. Still, courts
have noted the difficulties present in these determinations, at one point noting that the distinction
between misfeasance and nonfeasance was “fanciful.” Notwithstanding confusion surrounding its
application, the use of the misfeasance/nonfeasance distinction is deeply rooted in the jurisprudence of
tort law. As a general proposition, courts recognize that one owes a duty “to avoid affirmatively causing
physical harm to others.” In other words, courts will generally hold a person accountable for their
misfeasance or “affirmative actions,” when such actions expose others to an unreasonable risk of harm.
This accountability generally does not depend on whether that harm arises from an act—criminal or
otherwise—of a third person.
Conversely, courts generally recognize that there is no duty to prevent harm caused by one’s nonfeasance—
meaning there is no “duty to warn, protect, or rescue a person from risks created by another source.” This
distinction reflects the maturation of tort law generally. An excellent illustration of an application of both
13
http://www.lawnotes.in/Law_of_Torts_in_India.
22
aspects of the misfeasance/nonfeasance distinction can be found in Touchette v. Ganal. In Touchette,

defendant Mrs. Ganal and Mr. Touchette were involved in an extra-marital affair. As her relationship with
her husband deteriorated, Ganal moved into her parents’ house. Allegedly, during her time at her parent’s
house, she taunted her husband by flaunting her affair with Touchette. This caused her husband to go on a
violent rampage, killing Ganal’s parents, burning Touchette’s home to the ground, and causing the death of
Touchette’s infant child. In analyzing whether summary judgment was appropriate, the Hawaii Supreme
Court in Touchette first determined—as a matter of law—if Ganal’s acts were to be characterized as
nonfeasance, a marital relationship was not a special relationship that gave rise to a duty to protect persons
from the acts of another. But the supreme court did not stop there. It went on to analyze the duty requirement
with regard to whether the defendant’s acts should be considered misfeasance on the basis of whether her
actions created an unreasonable risk of harm, and thus her actions created a duty under sections 302, 302A,
and/or 302B of the Restatement (Second) of Torts. The court determined that Ganal’s actions did create an
unreasonable risk of harm, and therefore, she owed Touchette a duty. In Minnesota, the early cases seem to
pay deference to both aspects of the misfeasance/nonfeasance distinction, even when the cases before the
court involved the criminal acts of others. Minnesota has upheld a jury verdict that found a defendant liable
for the damage caused by a thief who stole the defendant’s car, and has remanded a case in which summary
judgment was granted under similar circumstances. One argument for an imposition of duty was that this
class of cases fell under a city ordinance, and there was negligence (or duty) per se. However, later rulings
by the supreme court seem to have invalidated this position.
In Lundgren v. Fultz, the supreme court reversed a finding by the lower courts that no duty existed to
protect against the criminal acts of others when a defendant psychiatrist allowed his patient to come into
possession of some firearms. Lundgren is interesting because it seems to blur the distinction between
misfeasance and nonfeasance. On the one hand, the Supreme Court set out to show that the defendant may
have had a duty according to some special relationship. On the other hand, the Supreme Court indicated that
foreseeability of the risk of harm, by itself, may give rise to a duty. In essence, the Supreme Court in
Lundgren said that a reasonable jury may find a duty under either the special relationship requirement or
foreseeability of the risk of harm arising out of the same set of facts. That is, the Supreme Court seems to be
implying that the defendant’s actions could reasonably be characterized as either nonfeasance or
misfeasance, respectively. So, while it appears that Minnesota has strong inclinations towards nonfeasance
determinations in applying the nonfeasance/misfeasance distinction, in limited situations, Minnesota courts
have found reason to blur the distinction between misfeasance and nonfeasance. Minnesota courts have also
found an existence of a duty to protect another from the harm resulting from criminal acts of third persons
when misfeasance gives rise or otherwise creates an opportunity for the commission of the criminal act.
23
B. Minnesota’s Move to a General Duty of Reasonable Care and Its Influence on Recognizing a Duty
for the Harms Caused by the Criminal Acts of Others: Since at least the 1970s, an articulative adherence
to both aspects of the misfeasance/nonfeasance distinction seems to have waned, causing an apparent
atrophy in the application of misfeasance in Minnesota law. Such an approach is in opposition with the
march to a general duty of reasonable care, which Minnesota embarked on when it embraced a general duty
of reasonable care in the context of entrants on land. The transition to a general duty of reasonable care for
tortious conduct has been slow to gain traction. In 1968, California abolished the categorical approach to
landowner duty in favor of a general duty of reasonable care to all entrants. In 1972, Minnesota joined other
jurisdictions and moved closer to a general duty of reasonable care to entrants on land. Under the standard
articulated in Roland there is a general duty of reasonable care for entrants on land regardless of whether the
entrant is a business invitee, licensee, or trespasser. This notion of a general duty of reasonable care is in
accord with the idea that we should be held accountable for the risk of harm that we create. However, in
Minnesota, other aspects of negligence law—such as the duty to protect others from the criminal acts of
another— have yet to fully embrace the notion of a general duty of reasonable care. In Minnesota, “if the
law is to impose a duty on A to protect B from C’s criminal acts, the law usually looks for a special
relationship between A and B” This language has a strong correlation to the nonfeasance formulation
presented by Cardozo. In particular, if there is no conduct, then a duty only attaches if “there exists a relation
out of which arises a duty to protect.” Minnesota courts generally have found a special relationship to exist
between common carriers with their passengers, innkeepers with their patrons, possessors of land that hold
their premises open to the public with those who are lawfully on the premises, employers with their
employees, schools with their students, and custodians with those for whom they are responsible. The
rationale articulated by the court for limiting a duty to protect against the criminal actions of third persons is
that it would not be fair to hold one accountable for the criminal acts of another. In Pietila, the Minnesota
Supreme Court stated, how can one know what measures will protect against the thug, the narcotic addict,
the degenerate, the psychopath and the psychotic? Must the owner prevent all crime? Inasmuch as no police
force has ever achieved that goal, the plaintiff cannot intend the imposition of an absolute obligation to
prevent all crime. Even with this articulated public policy limitation, Minnesota has found reasons to blur the
bright-line rule that there is no duty to prevent the acts of third persons.
C. The Special Circumstances Doctrine in Minnesota and Abroad One way in which Minnesota has softened
this bright-line rule is through the adoption of the special circumstances doctrine, which allows a court to
impose a duty if the criminal act is foreseeable or if the defendant’s preventative action is not overly
burdensome. Minnesota adopted the special circumstances doctrine in State Farm Mutual Auto Insurance
Co. v. Grain Belt Breweries, Inc.Under the special circumstances doctrine, courts— as a matter of law—can
create exceptions to the no-duty to prevent the acts of third persons rule when a special circumstance exists.
24
“In some ‘special circumstances’, the negligent acts of a third person are so foreseeable that such acts cannot
properly be viewed as independent intervening causes. Accordingly . . . under certain ‘special
circumstances’, a special duty to prevent the actions of a third person arises.” The special circumstances
doctrine is broader than the special relationship requirement in that a special circumstance is analyzed
according to the foreseeability of an act and does not rely on traditional notions of a special relationship. It
could also be argued that the special circumstances doctrine has more limited applications than the special
relationship requirement because the analysis has typically been limited to the class of cases involving car
theft in general, and key-in-ignition cases more specifically. However, the courts have used language that
would allow additional classes of cases to take advantage of the special circumstances doctrine. For
example, one court noted that, [m]any jurisdictions have held that under “special” or “unusual”
circumstances, a duty may exist where a defendant should reasonably anticipate that its conduct will create
an unreasonably enhanced danger to one in the position of the injured plaintiff. If such danger is foreseeable,
then a duty arises to exercise reasonable care for the safety of others.
When the weight of the foreseeability is great, it would seem that— as a matter of public policy—these
courts impose a duty to protect those at risk. There are potential pitfalls with the special circumstances
doctrine. In particular, legal scholars have illustrated that folding the foreseeability determination into the
duty analysis may have a harmful effect on the law. For example, if a court decides—as a matter of law—
that a special circumstance exists, there is at least an implication that the court has also decided that there
was sufficient foreseeability as a matter of law. Because foreseeability plays a role in determining the breach
issue, the court has at least impliedly decided that issue as well. When the court is making a duty
determination based on foreseeability, they are in effect weighing the sufficiency of the evidence regarding
the breach issue—a task which is generally regarded as being the providence of the jury. The Restatement
(Third) of Torts has attempted to address this particular issue by presuming a duty if the actor’s conduct
creates a risk of physical harm. Conversely, there is a no-duty presumption if the risk of harm is created by
another source. However, the Third Restatement’s approach is not without its critics. While it is beyond the
scope of this note to weigh in on the merits of the Restatement (Third) of Torts’ approach, for the purposes
of this note it is sufficient to recognize at least a potential ideological shift to a presumed duty, a move away
from the misfeasance/nonfeasance distinction, and internalize the possible benefits of that approach.14
DEFINITION OFMALFEASANCE,MISFEASANCE AND

NONFEASANCE
14
TORTS: THE FAILINGS OF THE MISFEASANCE/NONFEASANCE DISTINCTION AND THE SPECIAL
RELATIONSHIP REQUIREMENT IN THE CRIMINAL ACTS OF THIRD PERSONS—STATE V. BACK by Brian D. Bender.
25
Misfeasance, nonfeasance, and malfeasance are types of failure to discharge public obligations existing

by common law, custom, or statute.
When a contract creates a duty that does not exist at common law, there are three things the parties can do
wrong:
15
16
15
www.slideshare.net
16
www.slideshare.net
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17
MALFEASANCE
18
Malfeasance combines the English prefix mal (bad) with Middle English feasance which was from Middle
French feasance. Malfeasance is the willful and intentional action that injures a party.
Definitions of malfeasance:
• wrongdoing, misconduct, misbehaviour
• specifically, the misuse of authority by a public officer – called also malpractice
• an act or instance of wrongdoing especially by a public officer under color of authority of his office .19
Malfeasance is a comprehensive term used in both civil and Criminal Law to describe any act that is
wrongful. It is not a distinct crime or tort, but may be used generally to describe any act that is criminal or
that is wrongful and gives rise to, or somehow contributes to, the injury of another person.
Malfeasance is an affirmative act that is illegal or wrongful. In tort law it is distinct from misfeasance, which
is an act that is not illegal but is improperly performed. It is also distinct from Nonfeasance, which is a
failure to act that results in injury.
17
www.slideshare.net
18
http://www.slideshare.net/Rajavenkatesan15121982/law-of-tortsupdated06082015.
19
http://www.legalservicesindia.com/article/article/malfeasance-misfeasance-and-nonfeasance-in-tort-law-1266-1.html.
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The term Malfeasance applies to the commission of an unlawful act. It is generally applicable to those
unlawful acts, such as trespass, which are actionable per se and do not require proof of intention or motive.
Malfeasance is often used in reference to people in public office. In many cases, proving malfeasance on the
part of an official is grounds to remove that person from his or her post. Proving malfeasance can, however,
be a difficult chore, as most experts do not completely agree on its definition. Even the court systems are not
entirely in agreement.
The West Virginia Supreme Court of Appeals summarized a number of the definitions of malfeasance in
office applied by various appellate courts in the United States.
“ Malfeasance has been defined by appellate courts in other jurisdictions as a wrongful act which the actor
has no legal right to do; as any wrongful conduct which affects, interrupts or interferes with the performance
of official duty; as an act for which there is no authority or warrant of law; as an act which a person ought
not to do; as an act which is wholly wrongful and unlawful; as that which an officer has no authority to do
and is positively wrong or unlawful; and as the unjust performance of some act which the party performing it
has no right, or has contracted not, to do.”—Daugherty V. Ellis
All courts agree that malfeasance has to do with wrongful doing, but defining wrongful doing and proving
malicious intent are difficult tasks. In addition, the act must be proven to have interfered with the
perpetrators’ official duties. Determining whether or not the act interfered with the duties is also difficult. In
addition, some courts believe malfeasance also applies to an act that interferes with the official duties of
other public officials.20
The word ‘malfeasance’ would apply to a case where an act prohibited by law is done by a person. (Khairul
Bahsar v. Thana Lal AIR 1957) mes used as equivalent to malpractice by a medical practitioner.21
MISFEASANCE
Misfeasance is from French word mesfeasance. The mes part is a negative and feasance is from faire “to
do” or “to make.” The person guilty of misfeasance is literally “making bad.” Misfeasance is the willful
inappropriate action or intentional incorrect action or advice.
20
21
28
Here are some definitions of misfeasance:

• a wrong action
• the performance of a lawful action in an illegal or improper manner
• wrong or improper conduct in public office
The term ‘misfeasance’ is applicable to improper performance of some lawful act for example where there is
negligence. 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.
Misfeasance is also used with reference to the conduct of directors and officers of joint-stock companies.
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.22
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 his 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.
The peculiarities of the tort of misfeasance in a public office from the perspective of two popular,
contemporary theories of tort law: the rights-based theory of Robert Stevens, and the corrective justice
theory of Ernest Weinrib. It identifies four significant problems of fit for these theories: viz, the fact that this
tort does not protect a clearly defined private law right; the fact that its touchstones of liability include
concepts that are highly unusual in tort law (such as malice, recklessness and bad faith); the fact that it
confounds the private/public law dichotomy envisaged by both authors, and the fact that it is both animated
by, and makes ready use of, public policy considerations. It is nonetheless argued that these apparent
oddities are not unique to this tort (each featuring elsewhere in tort law) and that, therefore, misfeasance in a
public office is by no means as anomalous as these theories would lead us to believe. Having established that
it is not a theoretical anomaly, the article goes on to suggest that this tort also serves a discrete and vital role
in holding public officers to account thus rendering implausible any suggestion that it has very little to
commend it in practical terms, or that it ought to be abolished.23
22
23
29
NONFEASANCE
24
Nonfeasance is the failure to act where action is required – willfully or in neglect
Nonfeasance is a term used in Tort Law to describe inaction that allows or results in harm to a person or to
property. An act of nonfeasance can result in liability if
(1) the actor owed a duty of care toward the injured person,
(2) the actor failed to act on that duty, and
(3) the failure to act resulted in injury.
Originally the failure to take affirmative steps to prevent harm did not create liability, and this rule was
absolute. Over the years courts have recognized a number of situations in which a person who does not
create a dangerous situation must nevertheless act to prevent harm.25
Generally a person will not be held liable for a failure to act unless he or she had a preexisting relationship
with the injured person. For example, if a bystander sees a stranger drowning and does not attempt a rescue,
he cannot be liable for nonfeasance because he had no preexisting relationship with the drowning person.
The bystander would not be liable for the drowning even if a rescue would have posed no risk to him.
However, if the victim is drowning in a public pool and the bystander is a lifeguard employed by the city,
and if the lifeguard does not act to help, she may be held liable for the drowning because the lifeguard's
employment places her in a relationship with swimmers in the pool. Because of this relationship, the
lifeguard owes a duty to take affirmative steps to prevent harm to the swimmers.
Courts have found a pre-existing relationship and a duty to act in various relationships, such as the
relationship between Husband and Wife, innkeeper and guest, employer and employee, jailer and prisoner,
carrier and passenger, Parent and Child, school and pupil, and host and guest. A person who renders aid or
protection to a stranger also may be found liable if the rescuer does not act reasonably and leaves the
24
www.slideshare.net
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30
stranger in a more dangerous position, even if the rescuer had nothing to do with the initial cause of the
stranger's dilemma.
Courts have found a duty to act if a person does something innocuous that later poses a threat and then fails
to act to prevent harm. For example, assume that Johnny loans a powerful circular saw to Bobby. If Johnny
later remembers that the bolt securing the blade is loose and that the blade will dislodge in a dangerous
manner when the saw is used, Johnny must try to warn Bobby. If Bobby is injured because Johnny failed to
act, Johnny can be held liable for nonfeasance.26
Example: A company hires a catering company to provide drinks and food for a retirement party. If the
catering company doesn't show up, it's considered nonfeasance. If the catering company shows up but only
provides drinks (and not the food, which was also paid for), it's considered misfeasance. If the catering
company accepts a bribe from its client's competitor to undercook the meat, thereby giving those
present food poisoning, it's 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.
At present 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, i.e. 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 thereby.
DIFFERENCE BETWEEN MALFEASANCE, MISFEASANCE

AND NONFEASANCE
26
31
The distinctions between malfeasance, misfeasance, and nonfeasance have little effect on tort law. Whether a
claim of injury is for one or the other, the plaintiff must prove that the defendant owed a duty of care, that
the duty was breached in some way, and that the breach caused injury to the plaintiff.
One exception is that under the law of Strict Liability, the plaintiff need not show the absence of due care.
The law of strict liability usually is applied to Product Liability cases, where a manufacturer can be held
liable for harm done by a product that was harmful when it was placed on the market. In such cases the
plaintiff need not show any actual malfeasance on the part of the manufacturer. A mistake is enough to
create liability because the law implies that for the sake of public safety, a manufacturer warrants a product’s
safety when it offers the product for sale.27
Difference Between Malfeasance And Misfeasance And Nonfeasance:-

Malfeasance is an affirmative act that is illegal or wrongful. In tort law it is distinct from misfeasance, which
is an act that is not illegal but is improperly performed. It is also distinct from Nonfeasance, which is a
failure to act that result in injury.
Difference Between Misfeasance And Nonfeasance: -

In theory, misfeasance is distinct from Nonfeasance. Nonfeasance is a term that describes a failure to act that
result 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.
The term “misfeasance” is used in Tort Law to describe an act that is normally legal or lawful but which has
been performed improperly or in an unlawful way. 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, as just shown, describes some affirmative act that, though legal, causes harm. In practice, the
distinction the distinction between “Misfeasance” and “Nonfeasance” can be confusing with a court often
have difficulty determining whether harm resulted from a failure to act (nonfeasance) or from an act that was
improperly performed (misfeasance).
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.
27
https://intellectualselfdefence.wordpress.com/2011/06/26/malfeasance-misfeasance-and-nonfeasance/.
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CASE: Yania V. Bigan

One of the most contentious debates in tort law arises out of the distinction between misfeasance and
nonfeasance, between actively causing harm to another on the one hand, and passively allowing harm to fall
upon him on the other. In the first case, liability has traditionally been imposed on those whose negligence
proximately causes harm to another. Examples range from such egregious behaviour as drag racing in
automobiles, to more innocent conduct, such as failing to organize a fishing contest so as to avoid creating
an unreasonable risk of harm. In such cases little controversy is involved in imposing liability upon the
negligent when their unreasonable conduct harms others.
But in the case of nonfeasance, there has been a valiant resistance to imposing liability. One of the many
classic examples of nonfeasance involves a man strolling down a dock late a night, who hears a man calling
for help from the water below. Peering over the edge, he sees a man struggling to stay above water, coming
perilously close to drowning. At his feet is a length of rope, which he quickly deduces is more than sufficient
to reach the ailing gentleman. Without provocation, however, he simply turns about, and continues on his
way. The man below drowns.
Many scholars have attempted to argue that the man who fails to rescue another should be liable for the harm
suffered. Interestingly, though, few (if any) courts have gone ahead and imposed liability in this situation.
One of the more recent cases which flatly refused to impose liability in the just the type of scenario outlined
above is Yania V. Bigan. The facts are somewhat similar to the above example, only even less sympathetic.
Yania and Bigan were business associates in the strip-mining business. One day they met along with another
party on Bigan’s land, near a large trench full of water roughly 10 feet deep. What followed was some type
of contest of machismo, ending in Yania proving his manliness by jumping into the trench of water and
drowning, while Bigan stood by.
Yania’s wife brought suit against Bigan on behalf of herself and their three children. The court summarized
the case against Bigan as follows: “Bigan stands charged with three-fold negligence: (1) by urging, enticing,
taunting and inveigling Yania to jump into the water; (2) by failing to warn Yania of a dangerous condition
on the land, i.e., the cut wherein lay 8 to 10 feet of water; (3) by failing to go to Yania’s rescue after he had
jumped into the water,” (Id. at 345). Interestingly, the court had little sympathy.
“Appellant initially contends that Yania’s descent from the high embankment into the water and the resulting
death were caused “entirely” by the spoken words and blandishments of Bigan delivered at a distance from
33
Yania. The complaint does not allege that Yania slipped or that he was pushed or that Bigan made any
physical impact upon Yania. On the contrary, the only inference deducible from the facts alleged in the
complaint is that Bigan, by the employment of cajolery and inveiglement, caused such a mental impact on
Yania that the latter was deprived of his volition and freedom of choice and placed under a compulsion to
jump into the water. Had Yania been a child of tender years or a person mentally deficient then it is
conceivable that taunting and enticement could constitute actionable negligence if it resulted in harm.
However to contend that such conduct directed to an adult in full possession of all his mental faculties
constitutes actionable negligence is not only without precedent but completely without merit.”
The court noted that Bigan might have been liable to Yania for failing to warn of a dangerous condition on
the land; however, the court dismisses this potential by averring that Bigan pointed the ditch out to Yania,
and any danger was obviously apparent to both as owners/operators of coal strip-mines.
The court ends the case with a classic formulation of the “no duty to rescue” rule:
“Lastly, it is urged that Bigan failed to take the necessary steps to rescue Yania from the water. The mere
fact that Bigan saw Yania in a position of peril in the water imposed upon him no legal, although a moral,
obligation or duty to go to his rescue unless Bigan was legally responsible, in whole or in part, for placing
Yania in the perilous position: Restatement, Torts, § 314. Cf: Restatement, Torts, § 322. The language of this
Court in Brown v. French, 104 Pa. 604, 607, 608, is apt: “If it appeared that the deceased, by his own
carelessness, contributed in any degree to the accident which caused the loss of his life, the defendants ought
not to have been held to answer for the consequences resulting from that accident. … He voluntarily placed
himself in the way of danger, and his death was the result of his own act. … That his undertaking was an
exceedingly reckless and dangerous one, the event proves, but there was no one to blame for it but himself.
He had the right to try the experiment, obviously dangerous as it was, but then also upon him rested the
consequences of that experiment, and upon no one else; he may have been, and probably was, ignorant of the
risk which he was taking upon himself, or knowing it, and trusting to his own skill, he may have regarded it
as easily superable. But in either case, the result of his ignorance, or of his mistake, must rest with himself –
and cannot be charged to the defendants”. The complaint does not aver any facts which impose upon Bigan
legal responsibility for placing Yania in the dangerous position in the water and, absent such legal
responsibility, the law imposes on Bigan no duty of rescue.
Recognizing that the deceased Yania is entitled to the benefit of the presumption that he was exercising due
care and extending to appellant the benefit of every well pleaded fact in this complaint and the fair
inferences arising there from, yet we can reach but one conclusion: that Yania, a reasonable and prudent
34
adult in full possession of all his mental faculties, undertook to perform an act which he knew or should have
known was attended with more or less peril and it was the performance of that act and not any conduct upon
Bigan’s part which caused his unfortunate death.”
The court ultimately reached the right outcome here, though a persuasive case could be made that inducing
someone to take perilous actions and then failing to assist them should be a species of negligence. But that is
the subject of another post, which perhaps I’ll address at a later date.
Some of the interesting consequences of the misfeasance/nonfeasance dichotomy are the various exceptions
to the “no duty to rescue” rule that courts have created. I plan on discussing some of these exceptions in
future posts.
Difference Between Nonfeasance And Malfeasance And Misfeasance:-

In theory nonfeasance is distinct from misfeasance and malfeasance. Malfeasance is any act that is illegal or
wrongful. Misfeasance is an act that is legal but improperly performed. Nonfeasance, by contrast, is a failure
to act that results in harm.
In practice the distinctions between the three terms are nebulous and difficult to apply. Courts in various
jurisdictions have crafted different rules relating to the terms. The most difficult issue that faces courts is
whether to imply a duty to act and find liability for the failure to act.
Originally courts used the term nonfeasance to describe a failure to act that did not give rise to liability for
injuries. The meaning of the term reversed direction over time, and most courts now use it to describe
inaction that creates liability.28
CONCUSION AND SUGGESTION
Thus to conclude, law of torts is a branch of law which resembles most of the other branches in certain
aspects, but is essentially different from them in other respects. Although there are differences in opinion
among the different jurists regarding the liability in torts, the law has been developed and has made firm
28
35
roots in the legal showground. There are well defined elements and conditions of liability in tort law. This
bough of law enables the citizens of a state to claim readressal for the minor or major damage caused to
them. Thus the law has gained much confidence among the laymen.
At present 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, i.e. 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 thereby.
Misfeasance is also used with reference to the conduct of directors and officers of joint-stock companies.
The word malfeasance is sometimes used as equivalent to malpractice by a medical practitioner.
The terms Malfeasance, Misfeasance and Nonfeasance are of very wide import but they can’t cover a case of
breach of public duty which is not actuated with malice or bad faith such as defective planning and
construction of bundh.29
The main concern of this project that is “Malfeasance, Misfeasance and Nonfeasance in Tort Law” carries a
very thin line of difference in between the terms. Whereas, malfeasance applies to the commission of an
unlawful act, misfeasance applicable to improper performance of some lawful acts and lastly nonfeasance
applies to the omission to perform some act when there is an obligation to perform it.
Example: A company hires a catering company to provide drinks and food for a retirement party. If the
catering company doesn't show up, it's considered nonfeasance. If the catering company shows up but only
provides drinks (and not the food, which was also paid for), it's considered misfeasance. If the catering
company accepts a bribe from its client's competitor to undercook the meat, thereby giving those present
food poisoning, it's considered malfeasance.
In lieu of the marginal difference among the terms its applicability in Indian scenario in Law of Torts is not
29
36
notable. As mentioned before the term misfeasance and nonfeasance are most often used terms.
The law of torts in India is definitely not unnecessary but merely requires enactments to make it more
ascertainable. Failure of aggrieved persons to assert their legal rights is perhaps to be ascribed not merely to
insufficient appreciation of such rights but to other causes as well, e.g., difficulties in proving claims and
obtaining trustworthy testimony, high court fees, delay of courts. The elimination of difficulties which
obstruct aggrieved parties in seeking or obtaining remedies which the law provides for them is a matter
which is worthy of consideration. If these lacunae are removed, India could also witness a growth in tort
litigation.30
BIBLIOGRAPHY
 TORTS: THE FAILINGS OF THE MISFEASANCE/NONFEASANCE

DISTINCTION AND THE SPECIAL RELATIONSHIP
REQUIREMENT IN THE CRIMINAL ACTS OF THIRD PERSONS—
STATE V. BACK by Brian D. Bender.
Books  The law of torts by Ratanlal and Dhirajlal
 The law of torts by R.k. Bangia.
30
37
 Consumer Protection Act, 1986;

 the Motor Vehicles Act, 1988;
 the Workmen's Compensation Act, 1923, and
 the Public Liability Insurance Act, 1992.
statutes  section 9 of The Code of Civil Procedure.
 Law Reform (Contributory Negligence) Act, 1945.
 : Indian Contract Act, 1872 .
 Indian Penal Code, 1860.
 http://www.lawnotes.in/Law_of_Torts#ixzz3obGag274.
Website  http://www.lawnotes.in/Law_of_Torts#ixzz3obHYu7vh.
s  http://www.lawnotes.in/Law_of_Torts#ixzz3obIlGFAn.
 http://www.lawnotes.in/Law_of_Torts#ixzz3obI6XAA1.
 http://www.lawnotes.in/Law_of_Torts#ixzz3odEtIaQg.
 http://www.lawnotes.in/Law_of_Torts_in_India#ixzz3odcNf4Vq.
 http://web.wmitchell.edu/law-review/wp-
content/uploads/Volume37/documents/Bender.2.pdf.
 http://www.legalservicesindia.com/article/article/malfeasance-
misfeasance-and-nonfeasance-in-tort-law-1266-1.html.
 https://intellectualselfdefence.wordpress.com/2011/06/26/malfeasance-
misfeasance-and-nonfeasance/.
 www.slideshare.net.
 http://notes-law.blogspot.in/2008/08/law-on-torts-part-1.html.
 http://www.slideshare.net/Rajavenkatesan15121982/law-of-
tortsupdated06082015.
 http://www.lawnotes.in/Law_of_Torts_in_India.
 http://notes-law.blogspot.in/2008/08/law-on-torts-part-1.html
 http://slideplayer.com/slide/3296743/.
 http://www.slideshare.net/ajeshktk/laws-torts.
 http://www.lawnotes.in/Law_of_Torts.
38
39
CITATION
Books
Books: One author:

 TORTS: THE FAILINGS OF THE
MISFEASANCE/NONFEASANCE DISTINCTION AND
THE SPECIAL RELATIONSHIP REQUIREMENT IN THE
CRIMINAL ACTS OF THIRD PERSONS—STATE V.
BACK by Brian D. Bender.
 The law of torts by R.k. Bangia.
Two authors:
 The law of torts by Ratanlal and Dhirajlal
Case Law
Cases India cases:

 Khairul Bahsar v. Thana Lal AIR 1957.
 Jai Laxmi Salt Work(s) pvt. Ltd. v. State Of Gujrat(1994) SCC
1.
 Padmavati v. Dugganaika.
 Bhim Singh v. State of J & K.
 Rogers v. Ranjendro Dutt.
 M.C. Mehta v. Union of India .
FOREIGN CASES:
 State Farm Mutual Auto Insurance Co. v. Grain Belt Breweries,
Inc.
40
 Lundgren v. Fultz.
 Yania V. Bigan.
 Ashby V. White.
 Proksch v. Bottendorf 218 Lowa 1376(1934).
 Touchette v. Ganal.
 Rylands v. Fletcher.
 Wooldrige v. Sumner.
 Hall v. Brooklands Auto Racing Club.
 Mogul Steamship Co. v. McGregor Gow and Co.
 Gloucester Grammar School Case.
 Gordon v. Lee, 133 Me. 361, 178 A. 353, 355)
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PROJECT WORK ON

CHANAKYA NATIONAL LAW UNIVERSITY

SUBMITTED TO: SUBMITTED BY:

“ IF YOU WANT TO WALK FAST GO ALONE

 AIMS AND OBJECTIVES

4. INTRODUCTION TO LAW OF TORTS 9 TO 22

7. CONCLUSION AND SUGGESTION 35 TO 37

DECLARATION BY THE CANDIDATE

(Signature of the Candidate)

 State Farm Mutual Auto Insurance Co. v. Grain Belt Breweries,

AIMS AND OBJECTIVES :

The researcher intends to find out the following:

In general, the victim of a tortuous act is the plaintiff in a tort case.

5. Tort is a specie of civil wrong.

Essential elements to prove a Tort :

The Law of Torts In India

(i) Damnum Sine Injuria (Damage Without Injury)

(ii) Injuria Sine Damno ( injury without damage)

Cases related to Injuria Sine Damno:

Some General Conditions In Torts:

5. Malfeasance, misfeasance and nonfeasance- the term ‘malfeasance’ applies to the commission of an

General Principles of Liability:

MALFEASNCE, MISFEASANCE AND NONFEASANCE

aspects of the misfeasance/nonfeasance distinction can be found in Touchette v. Ganal. In Touchette,

DEFINITION OFMALFEASANCE,MISFEASANCE AND

Misfeasance, nonfeasance, and malfeasance are types of failure to discharge public obligations existing

Here are some definitions of misfeasance:

Nonfeasance is the failure to act where action is required – willfully or in neglect

(2) the actor failed to act on that duty, and

(3) the failure to act resulted in injury.

DIFFERENCE BETWEEN MALFEASANCE, MISFEASANCE

Difference Between Malfeasance And Misfeasance And Nonfeasance:-

Difference Between Misfeasance And Nonfeasance: -

CASE: Yania V. Bigan

Difference Between Nonfeasance And Malfeasance And Misfeasance:-

CONCUSION AND SUGGESTION

 TORTS: THE FAILINGS OF THE MISFEASANCE/NONFEASANCE

 Consumer Protection Act, 1986;

Books: One author:

Cases India cases:

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