Also known as: bad faith · fraudulent intent
Written by attorneys · grounded in primary & secondary sources — see below
Intentional deception or bad faith conduct undertaken to harm another or to obtain an unfair advantage. The concept requires a showing of purposeful deceit rather than mere negligence or mistake.
Denise Donovan filed a state-court diversity suit against a corporate defendant more than a year earlier. When an expert report finally quantified damages above the threshold, the defendant filed a notice of removal. The court denied removal after finding that Donovan had deliberately withheld damage information to keep the case out of federal court.
Darrell Duncan offered secondary evidence of a contract whose original had been destroyed in an office flood. The opposing party claimed Duncan had intentionally discarded the document. The court admitted the secondary evidence after finding no proof that Duncan acted with dolus malus in losing the original.
Select any source to read its text and confirm it supports the definition.
Diana Delgado threatened to sue Diego Duarte for breach of warranty on equipment sold years earlier even though both parties' inspection records showed no defects. Duarte signed a new contract at an inflated price to avoid the threatened litigation. A court later found the threat constituted dolus malus and rescinded the contract.
Diane Dawson, trustee of a family trust, sold trust property to her own company at below-market value. The beneficiaries sued for breach. The exculpatory clause in the trust instrument did not shield Dawson because her conduct involved dolus malus toward the beneficiaries.
Daniel Diaz listed waterfront property with a broker who produced a buyer ready to pay the full asking price. After the buyer and Diaz signed a contract, Diaz refused to close, claiming the buyer was financially unable. The court awarded the broker its commission, holding that Diaz's refusal was dolus malus designed to avoid paying the fee.
Duarte Shipping and Drake Logistics formed a limited partnership whose agreement purported to relieve the general partner of all liability for partnership losses. When the general partner diverted funds for personal use, limited partners sued. The court refused to enforce the clause because it attempted to exonerate conduct involving dolus malus.
Dolus malus requires purposeful deceit or bad faith rather than mere carelessness. Courts refuse to enforce exculpatory clauses or allow recovery when a party acts with dolus malus, but ordinary negligence does not trigger the same consequences.
Supporting sources
Yes. A threat to use civil process made without a good-faith belief in the claim's validity is improper and can render a resulting contract unenforceable.
A seller who produces a ready, willing, and able buyer earns the commission. Refusing to close in bad faith to avoid paying the broker constitutes dolus malus and does not defeat the broker's right to compensation.
Secondary evidence is admissible if the original is lost or destroyed without bad faith by the proponent. Intentional destruction or concealment to gain a litigation advantage constitutes dolus malus and bars admission of secondary evidence.
…In order to escape the rule articulated in the cases cited in the next paragraph of this opinion that, absent harassment and bad faith, a defendant in a pending state criminal case cannot affirmatively challenge in federal court the statutes under which the State is prosecuting him, Dr. Hallford seeks to distinguish his…