Definition
Misfeasance is the improper performance of a lawful act — doing something a person had the right or authority to do, but doing it in a wrongful or negligent manner that causes injury to another. The act itself is not forbidden; the wrong lies in how it is carried out.
Misfeasance is one of three related concepts describing the quality of conduct in tort and public law:
1. Misfeasance — A lawful act performed improperly.
2. Malfeasance — An act that is wholly wrongful or unlawful from the outset.
3. Nonfeasance — A complete failure to act where a duty to act exists.
The term appears most frequently in two contexts. In tort law, it describes negligent performance of an act the defendant was authorized to undertake — for example, a contractor who builds a structure but builds it defectively. In public and administrative law, it refers to the wrongful or injurious exercise of lawful authority by a public officer or official.
Common Language
Modern common usage (Wiktionary): "An actual or alleged wrong that arises from an action; often, the wrongful use of legal authority."
Historical common usage (Webster's 1913): "A trespass; a wrong done; the improper doing of an act which a person might lawfully do."
The common definitions capture the general sense adequately but obscure the essential legal distinction: the act must be one the actor was lawfully entitled to perform. When ordinary usage calls any wrong a "misfeasance," it loses the technical boundary separating misfeasance from malfeasance. Researchers encountering the term in pleadings or older treatises should confirm that the conduct at issue was lawful in kind, not merely in degree.
Common Confusion
The three feasance terms are routinely conflated, especially in older sources. The operative test is always the nature of the act itself, not the degree of harm:
- Malfeasance: The act is inherently wrongful or prohibited. A public officer accepting a bribe commits malfeasance.
- Misfeasance: The act is permitted; only its execution is wrongful. A public officer properly authorized to collect taxes who collects them by abusive methods commits misfeasance.
- Nonfeasance: No act is performed at all where one was required. A public officer who simply fails to collect taxes owed commits nonfeasance.
The boundary between misfeasance and nonfeasance is particularly contested in negligence law. Courts have long struggled with whether an incomplete performance (starting a task but abandoning it defectively) constitutes misfeasance (because something was done) or nonfeasance (because the duty was never properly fulfilled). This distinction carries real doctrinal weight because nonfeasance has historically attracted less liability than misfeasance, particularly in the absence of a special relationship.
Why It Matters in Research
The feasance taxonomy is central to several lines of research and creates traps at multiple points.
Tort law evolution. Pre-twentieth-century common law treated the misfeasance/nonfeasance distinction as a near-categorical liability barrier. Misfeasance could ground an action; nonfeasance generally could not without a preexisting duty. Researchers reading Victorian-era decisions must account for this doctrinal wall, which modern negligence law — particularly after the expansion of duty concepts in the twentieth century — has substantially eroded. The older boundary still surfaces in governmental liability cases and professional duty analyses.
Public officer liability. In administrative and public law contexts, misfeasance by a public officer was a recognized ground for both civil suit and removal from office. The term in this context carries a specific meaning — exercise of lawful power in an unlawful manner — that differs subtly from its pure tort meaning. Researchers working in early American governmental law should not assume the term tracks modern tort usage.
Pleading. Older common law pleading required a plaintiff to characterize the wrong precisely as misfeasance, malfeasance, or nonfeasance. Mischaracterization could defeat a claim on demurrer. This makes the term load-bearing in pre-code pleading records in ways it is not in modern practice.
Statutory usage. Some statutes, particularly in corporate and public officer contexts, use misfeasance as a defined or operative term triggering specific consequences — removal, surcharge, or personal liability. Corpus researchers should verify whether a given statute's use of the term incorporates the common law definition or a modified statutory one.
Historical Dictionary Support
The five source dictionaries converge on the core definition with unusual consistency: misfeasance is the improper performance of a lawful act. Burrill, Black's (both editions), and Bouvier all draw from the same foundational authorities — Tidd's Practice and Stephen's Commentaries — making this one of the more stable technical definitions in the historical corpus.
Bouvier adds the most useful analytical content, drawing the explicit contrast between misfeasance as the "wrongful and injurious exercise of lawful authority" and malfeasance as the "doing of an act which is positively unlawful or wrongful." This framing — lawful authority exercised unlawfully — is particularly useful for public law research and is more precise than Black's formulations.
Anderson simply cross-references FEASANCE, reflecting the editorial economy of that dictionary and offering no independent analysis. Researchers relying on Anderson alone will miss the substantive content available in Bouvier and Burrill.
None of the historical dictionaries address the twentieth-century negligence law complication — namely, the contested boundary between misfeasance and nonfeasance in cases of partial or defective performance. For that analysis, researchers must move beyond the dictionary shelf to treatises on tort history.
Jurisdictional Note
The misfeasance/nonfeasance distinction retains varying significance across jurisdictions, particularly in negligence and governmental liability law. Some states have substantially collapsed the distinction through statutory or judicial expansion of duty; others preserve it as a meaningful barrier to liability for public entities and private defendants who undertook no affirmative act. Researchers should not assume uniform treatment across state common law traditions.