The origin of “undue influence”

Written by J.D. Ian Barton & Dr. Salvatore Ivan Italiano;
© (2018)

To improve our professional performance we, as legal translators, cannot avoid having recourse to the source of our existing western legal systems. That is – Roman law. In point of fact, before beginning an analysis of the meaning of undue influence and its comparison with the legal culture of Germany, France, and Italy, we are obliged to examine again the concept of dolus malus – (FR: la malveillance; EN: malicious intent; DE: die Bosheit; IT: il dolo;).

As a translator and an interpreter, the first thing I feel obliged to impress upon Lawinwords readers concerns the adjective malus. This adjective expresses the relevant malicious intent present in a given situation (juristic act) and it is to be distinguished from the lawful bravado generally present in any given society during commercial transactions stressing the virtues of one’s own wares and/or exaggerating the deficiency of the competitor’s goods. This scenario is termed dolus bonus and is disregarded by the law other than for excluding its legal relevance.

Given the opportunity to provide one simple definition, it can be said that dolus malus is real scheming with the intent to cause detriment to a third party, and that four elements require consideration for malicious intent: both the implementation and awareness (scientia atque prudentia) of the fraudulent act by the agent together with his free will and consent (propositum atque consilium) in carrying out the given act, with the intent to bring about and/or preserve misunderstanding among others for his own advantage.

If the malicious act has generated a fundamental misconception by the other party to the transaction the legal negotiations cannot give effect to the intended transaction. In contrast, when the malicious intent has not given rise to fundamental misunderstanding, and in accordance with Roman principles, a juristic act (legal transaction) can arise and take effect. As a means of protection against the dolus malus and to negate the effect of legal transactions vitiated by it, Roman law made available several indirect legal measures …

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Dr. Salvatore Ivan Italiano
Dr. Salvatore Ivan Italiano

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