Malice In Law And Malice In Fact


Malice shows wrong intention and desire to harm someone which gives rise to offenses. It is not considered essential for the maintenance of an action in tort. Mr. Justice McCardie has once told about the word ‘malice’ that it had been the subject of ‘a regrettable exuberance of definition’.[1] Bayley J. told about ‘malice in fact’ and ‘malice in law’[2] that various interpretation about the word malice and its types can be distributed as spite or ill-will, any improper motive, intent to do a wrongful act, and intent to inflict injury without just cause or excuse. C.J. Parker in 1718[3] said malice in general terms as ‘a desire of revenge or settled anger against a particular person’. When a person has a right to do an act, one cannot take an action by alleging against such right by proving his motive in the exercise was malice in the popular sense. A lawful act generally cannot be made actionable by an argument that it was done with evil motive.

Malice in Fact

Bayley J. in Bromage v. Prosser called ‘malice in fact’ as ill-will against any person which was later called as vindictive feeling.[4] Malice adds the desire to satisfy personal grudge by benefitting the person acting from malice. Roxburgh J. refers malice as willful and intentional doing of damage without just cause or excuse and further says that it doesn’t mean that the defendant meant to be spiteful, sometimes for instance to rebut a plea of privilege in case of defamation, malice, in fact, had need to be proved. Malice, in fact, had replaced the old notion of improper motive.

Malice in Law

Baron Bramwell in the case of Melia v. Neate[5] has said that malice in the law meant some kind of disinterested malevolence. Malice in law can also be said as the intent to do a wrongful act.[6] The idea of inflicting injury without just cause or excuse makes the expression of malice in law archaic and unsatisfactory. It suggests as an expression meaning wrongful and have unjustified intention.

Difference Between Malice in Fact And Malice in Law

Malice, in Fact, is a kind of activities done with ill will towards an individual. It depends on the motive. It is also known as ‘Actual Malice’ or ‘Express Malice’. Malice in Law is a kind of act done wrongfully without reasonable cause. It merely depends upon the knowledge. It means the concurrence of mind with wrongful act without just cause or excuse. It is also known as ‘Implied Malice’.

Case laws on Malice In Law And Malice In Fact

Bradford Corporation v. Pickles

In the case of Bradford Corporation v. Pickles[7], the plaintiff used water springs lay on his land for the supply of water to Bradford town for more than 40 years. The defendant’s land was at a higher level than the plaintiff. The defendant sank a shaft under his land to alter the flow of water. This reduced the flow of water in the plaintiff water springs. There was not much evidence to prove that this act was done by the defendant not to benefit him rather to deprive the plaintiff from the supply of water. The plaintiff insisted this as a malice act and filed a case.

It was held that this case doesn’t show the state of mind of the person doing the act can affect the right to do it. If the act was lawful in itself, his intention and motive don’t matter, he had the right to do it. In the present case, motive and intention are irrelevant.

Allen v. Flood

In the case of Allen v. Flood[8], Flood and Walter being an employ on a ship liable to be discharged anytime. When employers discharged Flood and Walter, on the action taken by other workers as if both of them don’t get discharged from employment other workers will go on strike. Even both the workers were told they won’t get employed again. Flood and Walter brought an action for maliciously.

It was held that Allen, the employer hadn’t violated any legal right of Flood and Walter. There wasn’t any legal right vest in them to get employed by the employer. Allen has also not carried out any unlawful act or used unlawful means. Allen’s conduct was considered as non-actionable, no matter how malicious or bad his motive might be.

Vishnu Basudeo v. T.H.S Pearse

In the case of Vishnu Basudeo v. T.H.S Pearse[9], the court has told about the non-relevance of motive as well as malice in tort in India. The court has held that the things which matter the most are to see whether the act was lawful or not. If it is lawful, then its motive keeps little significance.

[1]Br. Rly. Traffic and Electric Co., Ltd. v. C.R.C. Co., Ltd. [1922] 2 K.B. 260 at p. 268.

[2]Bromage v. Prosser (1825) 4 B. & C. 247.

[3]Jones v. Givin (1713) Gilb. 185.

[4]Pratt v. B.M.A. [1919] 1 K.B. 244 at pp. 275-276.

[5](1863) 3 F. & F. at p. 763

[6]Rawson’s Law Lexicon (1883) at p. 199.

[7]Bradford Corporation v. Pickles, 1895 AC 587.

[8]Allen v. Flood. 1898 AC 1.

[9]Vishnu Basudeo v. T.H.S Pearse, AIR 1949 NAG 364.

Also Read – MALICIOUS PROSECUTION: An Effort To Disturb The Functioning Of Judicial Machinery

Raj Aryan

Lloyd Law College

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