Mar 6, 2010 22:46
14 yrs ago
18 viewers *
Italiano term

dolo incidente

Da Italiano a Inglese Legale/Brevetti Legale (generale)
As per wikipedia (http://it.wikipedia.org/wiki/Dolo_(diritto)), it means this in Italian:

dolo incidente, ovverosia quel raggiro che non ha determinato il consenso, ma ne ha determinato le condizioni concrete; potendo cioè assumersi che la parte vittima avrebbe comunque contrattato, ma avrebbe preteso condizioni più favorevoli. Resta tutta la difficoltà di distinguere in concreto quest'ipotesi dalla precedente: ausilio possono fornire le sentenze della Corte di Cassazione e le norme sull'interpretazione contrattuale. Quest'ultimo tipo di dolo apre le porte al risarcimento del danno da parte del contraente di mala fede, che dovrà essere pari alla differenza tra condizioni diverse e condizioni attuali (la concreta determinazione resta comunque un problema nell'interpretazione corrente).

It exists alongside dolo vizio di consenso (referred to above as "della precedente").

There isn't much context in my doc, but the general story is: a bank offers financial products to a public entity, and hides the true costs of the product, whose emergence causes the city to sue for damages.

I have no idea how to specify this past the simple term of fraud in English, and would appreciate any suggestions. Thanks!

Discussion

claudiocambon (asker) Mar 10, 2010:
a further distinction on dolo incidente dolo incidentale is a fraud in, for example, a contract situation that would prompt the deceived contract party to renegotiate the terms but still carry out the contract, were they to become aware of it. This is in contrast to dolo determinante, in which the contracting party's coming to be aware of the fraud would dissuade them from performing the action altogether.

Does this shed any further light on a way to say this in US English?
claudiocambon (asker) Mar 7, 2010:
nature of the fraud is tortious, to respond to Tom Thumb's question
Ellen Kraus Mar 7, 2010:
in reply to Simon´s remark that no English lawyer would be conversant with the term "dolus" let me refer to Campbell Black´s law dictionary in which lengthy parts are dedicated to this term. I think best of all would be to use the Latin term "dolus incidens" after all it is not likely to be interpreted differently from the original, Italian text.
Adrian MM. (X) Mar 7, 2010:
Conditional intent vs. dolus incidens Here are 2 terms - the latter term if dolus incidens being on the IATE website and which has been added as an after-thought by Ellen K., but is NOT a term of art in Anglo.Am. law.

There's also the concept of 'transferred malice' in crim. law which hasn't been mentioned at all.

I'm going to leave them up for discussion before making up my own mind. But the asker should first clarify whether this fraud is a 1. contractual 2. tortious or 3. criminal scene - or any combination thereof.
Ellen Kraus Mar 7, 2010:
the term "dolus" was first used in popular English sometime before 1588. in the sense of evil intent, embracing both malice and fraud.
strictly speaking, incidental - at first sight - may seem somewhat puzzling since the deceit was intentional, it didnt come about incidentally. but the following definition (unfortunately in German) is a very clear one:Täuschung über einen wesentlichen Umstand (dolus principalis), Täuschung über einen Nebenumstand,ohne welchen ein Geschäft nicht geschehen wäre (dolus incidens). ...... without which the business would not have come about.
simon tanner Mar 7, 2010:
not necessarily fraud in your specific case, the crime being described may well be 'incidental fraud', but dolo need not be fraudulent; it just happens to be so here. Dolo is one of the necessary components of a criminal offence, along with the atto criminale, corresponding in English to mens rea/criminal intent/malice and actus reus, respectively. For example, to constitute the crime of murder, the offender has to kill (atto criminale) and intend to kill (dolo). If someone causes death unintentionally, then the crime is manslaughter, since it lacks the dolo necessary for murder. So as you can see, dolo in general has to do with criminal intent, and need not imply fraud. As said, the usual term used in English is mens rea (which just happens to be grammatically incorrect Latin, but that's another story...)
claudiocambon (asker) Mar 6, 2010:
incidental fraud? I see a few g-hits that seem to correspond.
Ellen Kraus Mar 6, 2010:
as in Latin, the correct word order in English is also dolo incidental rather than incidental dolo. I herewith correct the answer I just posted.

Proposed translations

11 min

incidental dolo

In order that fraud may vitiate consent to a contract, it must be the causal (dolo causante), not merely the incidental (dolo incidente), inducement to the ...
lexoterica.wordpress.com/tag/laches/

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Note added at 17 Min. (2010-03-06 23:04:17 GMT)
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the Latin term being "dolus incidens"
dolo principal (dolus principalis), dolo incidental (dolus incidens), dolo essencial (dolus principalis). (various references) ...
www.websters-online-dictionary.org/Do/Dolus.html

--------------------------------------------------
Note added at 19 Min. (2010-03-06 23:06:14 GMT)
--------------------------------------------------

In German the term means "Nebenbetrug"
Exclusion of dolus incidens as a defect of consent. — In a number of legal systems statute law provides that dolus incidens does not constitute a defect of ...
books.google.at/books?isbn=9028602712
Peer comment(s):

neutral simon tanner : the Latin term may be the best bet, but as your link shows, it's used in Italian as an alternative, not in English. I'm not sure that your average English speaker, or even lawyer, would understand 'dolus'
7 ore
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49 min

incidental mens rea

dolo corresponds to mens rea in English, so this might give an idea of what is meant, although I'm not aware that the concept exists in English law
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4 ore

Incidental fraud

www.scribd.com/doc/23322108/Obligations-and-Contracts - 196k

It says: (incidental fraud) (dolo incidente) fraud in performance of obligation already existing because of contract.

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Note added at 4 hrs (2010-03-07 03:34:38 GMT)
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www.scribd.com/doc/23322108/Obligations-and-Contracts - 196k
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+1
16 ore

fraudulent (contract) misrepresentation or (tort/US) concealment; (crime) oblique intent

Thanks to the asker for clarifying the tort aspect.

The tort in the UK would I believe be called 'negligent mis-statement' - which I cannot see used in the US/Can., though should be readily understandable.

I agree with Simon T.: dolus is not an Anglo-Am. concept., whereas mens rea vs. actus reus def. is.

Example sentence:

fraudulent concealment n The deliberate attempt to withhold information or to conceal an act to avoid contractual responsibility.

Peer comment(s):

agree Marcello Joseph SPADA
1 giorno 2 ore
molte grazie!
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