Definition
The wrongful doing of an act that the actor has no legal right to perform, or that the actor has contractually agreed not to do. Malfeasance is distinguished from the related concepts of misfeasance (lawful act done improperly) and nonfeasance (failure to act when a duty to act exists). The wrongfulness in malfeasance lies in the act itself — not in the manner of its performance.
In modern usage, malfeasance appears most frequently in two overlapping contexts:
1. Public officer misconduct. An official who performs an act that falls outside lawful authority, or that affirmatively violates a duty of office, commits malfeasance. This is the dominant modern legal and popular usage.
2. Contract and agency law. A party who performs an act specifically prohibited by contract commits malfeasance in that transactional sense — though courts and commentators are inconsistent in applying the term here, and breach of contract is the more common framing today.
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Common Language
Modern common usage (Wiktionary): Wrongdoing; misconduct or wrongdoing, especially by a public official and causing damage.
Historical common usage (Webster's 1913): The doing of an act which a person ought not to do; evil conduct; an illegal deed.
The common usage is not wrong, but it is imprecise in a way that matters for legal research. Ordinary speech uses malfeasance as a synonym for any serious misconduct. Legal doctrine uses it as one term in a three-part taxonomy — malfeasance, misfeasance, nonfeasance — where the distinctions carry real consequence for liability analysis, particularly in suits against public officials and their employers. Treating malfeasance as a catch-all for wrongdoing collapses those distinctions and can lead a researcher to miss controlling authority.
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Common Confusion
Malfeasance is routinely conflated with misfeasance and, less often, nonfeasance. The controlling distinction: malfeasance is doing a wrongful act the actor had no right to do; misfeasance is doing a lawful act in a wrongful manner; nonfeasance is failing to act when a duty required action. The confusion matters because courts — particularly in public officer liability and governmental tort cases — have drawn liability lines along exactly these distinctions. Historical sources acknowledge the triad consistently, but older cases and some modern courts use the terms loosely or interchangeably, which is a research trap.
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Why It Matters in Research
The malfeasance/misfeasance/nonfeasance triad is not merely taxonomic. Courts have used these distinctions to determine whether governmental immunity applies, whether an official acted within the scope of office, and whether an employer can be held vicariously liable. A researcher who treats malfeasance as a synonym for "any official wrongdoing" may cite or miss cases that turn on the precise category.
Historically, the term appears in cases involving municipal corporations and public officers in ways that look different from modern usage. Nineteenth-century courts applied malfeasance broadly to any unlawful act by an officer, including what modern courts might classify as criminal conduct or civil rights violations. Modern administrative and employment law has absorbed much of this doctrine under different headings — misconduct, ultra vires action, abuse of authority — so researchers working backward through historical materials must watch for conceptual slippage between eras.
The contractual sense of malfeasance (performing a prohibited act) largely disappeared from common legal usage during the twentieth century. Modern courts rarely use the term in a pure contract context; breach of contract or breach of fiduciary duty carries that load. Researchers finding malfeasance in older contract or agency materials should not assume the modern public-officer connotation applies.
Jurisdictional note: Several states have codified malfeasance in office as a specific criminal offense or ground for removal of officials, with statutory definitions that may differ from the common-law formulation. When researching malfeasance in a statutory context, locate the controlling statute rather than relying on dictionary definitions alone.
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Historical Dictionary Support
The historical sources are in close agreement on the core definition. Black's (both editions) and Bouvier define malfeasance as the wrongful doing of an act the actor has no right to perform or has contracted not to do — virtually identical formulations, both citing Chitty's Pleading and Practice. Rapalje & Lawrence track the same definition but go further, identifying the Norman-French root (mal, wrongly; fere, to do) and grounding the term in the trespass tradition, with a citation to Britton and Croke's Jacobean reports.
Anderson's Dictionary offers only a cross-reference to the component terms MAL and FEASANCE, which is unhelpful for substantive research but signals that the term was treated as compositionally transparent.
What the historical sources miss: They do not develop the public-officer context that has come to dominate modern usage, and none of them address the gradual absorption of malfeasance into administrative and constitutional tort doctrine. The Rapalje note flagging malfeasance "in a statute" (with a Connecticut citation) is a rare acknowledgment that statutory context can shift the term's meaning — a point the other dictionaries ignore entirely.
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Jurisdictional Note
Several states — including Louisiana, Kentucky, and Texas — have statutes expressly defining malfeasance in office as a criminal offense, with elements and penalties that differ from common-law formulations and from one another. In those jurisdictions, the statutory definition governs, and the common-law three-part taxonomy may be of limited direct relevance. Federal law does not use the term as a formal statutory category, though it appears in judicial opinions analyzing official misconduct.
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Encyclopedia Cross-Reference
See Law Mind Encyclopedia — Public Officer Liability
See Law Mind Encyclopedia — Tort Law Foundations
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