Actio de dolo malo i ochrona umów prawnie niewiążących

The praetor secured the so called actio de dolo malo - likely inserted in the edict between 90 and 80 b.Ch. - only after a careful examination of the concrete situation (causae cognitio), in order to verify both the lack of different instruments of protection and the existence of founded reasons, such as the presence of the dolus. The best way to define the open and wide-ranging category of the dolus, indeed, is analyzing on the ground of the sources the several cases that this topic is related to. The essay considers the situations in which the de dolo malo action protects those agreements that can not contractually bind the parties since they are not a synallagma (D. 19,5,16,1; D. 4,3,34; D. 11,7,14,2) and the conventions implying a ‘facio ut des’ (D. 19,5,5,2-3; D. 2,14,7,2; D. 19,5,15; C.2,20(21),4). The investigation demonstrates that the dolus, even if, at the beginning, was a kind of mens rea, started meaning an illicit behaviour producing harmful result, though without any fraudulent attempt.