2016 (Criminal Law) Bar Exam Questions: Question 2

[Answer/discuss the question below, or see 2016 bar exam Criminal Law Instructions; 2016 Mercantile Law questions: 1345678910111213141516171819 and 20; See also 2016 Bar Exam: Information, Discussions, Tips, Questions and Results]

-II-

[a] Define malfeasance, misfeasance and nonfeasance. (2.5%)

[b] Differentiate wheel conspiracy and chain conspiracy. (2.5%)

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  1. BAR EXAM QUESTION NO.2(2016 CRIMINAL LAW)

    [a] Define malfeasance, misfeasance and nonfeasance. (2.5%)

    [b] Differentiate wheel conspiracy and chain conspiracy. (2.5%)

    SUGGESTED ANSWER:

    (a) MALFEASANCE – means the “Commission of an Unlawful Act”. The term is generally made applicable to certain unlawful acts which are actionable per se. It does not require any proof of intention, negligence or malice on the part of the defendant.

    For EXAMPLE, the act of trespass, the plaintiff can take action against the trespasser for his mere act of trespass, through there might be negligence or malice on the part of the trespasser.

    MISFEASANCE – means the “Improper performance of some lawful act”. Under certain a particular circumstances a man has a duty to perform ac act in manner, if he fails to perform that act in a proper manner, it will be an act of “misfeasance”. The tort of negligence may arise from the improper performance of some lawful act, i.e. act of ‘misfeasance’.

    For EXAMPLE, if doctor performs an operation by using rusted tools or leaving an alien object in the stomach during procedure. 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. 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.

    NONFEASANCE – means “Failure or Omission to perform some act when there was an obligation to perform that act”. The tort of negligence may arrive from nonfeasance. When a person owes a duty towards another to do particular act, a failure to do that act may result in an injury to that another, thus the nonfeasance of such an act gives rise to a cause of action

    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 under cook the meat, thereby giving those present food poisoning, its considered malfeasance.

    (b) A wheel conspiracy consists of a single conspirator, generally the ringleader who is interconnected to every other co-conspirator. The ringleader is the hub; the other co-conspirators are the spokes of the wheel. An example of a wheel conspiracy would be a mob boss linked to individual members of the mob following his or her commands.

    A chain conspiracy consists of co-conspirators connected to each other like links in a chain but without a central interconnected ringleader. An example of a chain conspiracy is a conspiracy to manufacture and distribute a controlled substance, with the manufacturer linked to the transporter, who sells to a large-quantity dealer, who thereafter sells to a smaller-quantity dealer, who sells to a customer. Whether the conspiracy is wheel, chain, or otherwise, if the jurisdiction has a statute or common-law rule that each member does not need to personally know every other member as discussed previously, the co-conspirators may be criminally responsible for the conspiracy and the crime(s) it furthers.

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