The translation of the Portuguese legal term dolo into English is notoriously complex, as dolo is used in both civil and criminal law, and the scope of the term does not fully overlap with the meanings of the common-law terms which it is usually translated as. Moreover, Section 14 of the Portuguese Criminal Code and Section 18 of the Brazilian Criminal Code establish a distinction between dolo direto and dolo eventual, for which there is no straightforward English translation either. Various translation options can be found in legal dictionaries and online glossaries, all of which cover certain aspects of the meaning(s) of dolo while omitting others. Finally, there is the fact that the intended reader will usually be a legal professional familiar with the term. Let us examine some of these potential solutions and their advantages and disadvantages.

Dolo in civil law

In Portuguese civil law, dolo is a defect of consent; i.e. consent given improperly as a result of an error or other undue influence. According to De Plácido e Silva in his Vocabulário juridico, dolo is:

“…any kind of artifice, deception, or contrivance, with the intention of inducing another to perform a legal act, to their detriment and for one’s own benefit or that of another.”^[1]

One option that is often suggested to translate dolo is ‘malice.’ ‘Malice,’ however, is a term with a very specific meaning in tort law. In common law systems, tort law is a branch of civil law that has no equivalent in other legal systems that deals with civil actions other than contractual disputes. Tortious acts are presumed to involve what is known as malice in law or implied malice, that is, “the intentional doing of a wrongful act without just cause or excuse”.^[2] While it requires foresight of the consequences of the act, it does not imply any ‘wicked’ intentions or ‘ill will’. Malice in law stands in contrast to malice in fact or actual malice, which is “ill will towards a particular person; an actual intention to injure or defame such person”.^[3] Thus the meaning of malice and dolo do not quite coincide.

Another option might be translating dolo as ‘fraud,’ which is defined by Black’s Law Dictionary as:

“An intentional perversion of truth for the purpose of inducing another in reliance upon it to part with some valuable thing belonging to him or to surrender a legal right.”

And Ballentine’s Legal Dictionary and Thesaurus gives fraud as:

“Deceit, deception, or trickery that is intended to induce, and does induce, another to part with anything of value or surrender some legal right.”

The Portuguese concept of dolo in civil law would thus seem to be close to ‘fraud’ in common law. Indeed, Black’s Law Dictionary goes so far as to equate Roman law dolus with fraud. Thus ‘fraud’ might seem to be a suitable translation of dolo within civil law contexts.

However, there is such a thing as fraude in Portuguese, and it may be the case that both dolo and fraude appear in the same text. (In his Dicionário de Direito, Economia e Contabilidade Marcílio Moreira de Castro gives the option of using the Latin term dolus in the English translation). This would therefore also rule out ‘fraud’ as a straightforward option.

Another potential translation of dolo might be ‘intent’ – but, according to Black’s, intent is the “design, resolve, or determination with which a person acts” in general: that is, ‘intent’ does not have the connotations of deception that dolo has, but is instead a neutral term. ‘Intent’ would thus have to be qualified. ‘Malicious intent’ has sometimes been given as an option – but, as we have seen, ‘malice’ brings its own problems.

Dolo in criminal law

In criminal law, dolo is relevant in cases involving intentional or wilful misconduct, such as fraud, deceit, or any other action where the perpetrator knowingly and intentionally commits a wrongful act. It is often associated with culpabilidade, but is quite distinct from it. As Luiz Regis Prado defines it in his Curso de direito penal brasileiro:

“Dolo means ‘being aware of and intending to realize the actus reus of an offense.’ It does not require being aware of its unlawfulness, which is an element of culpability”.^[4]

That is, dolo only implies the individual’s intent to carry out the conduct classified as criminal, as actus reus – but not that the individual is aware of the unlawfulness of that conduct. Knowledge of unlawfulness is connected to culpabilidade, not to dolo. In this sense it satisfies one element of the mens rea of the offense, but it falls short of establishing that that the perpetrator acted with a ‘criminal mind.’

Marcílio Moreira de Castro points out that when someone kills another person in legitimate defense, they are acting with dolo (that is, with the intention of committing the unlawful act), but not with culpabilidade (the element requiring knowledge of its unlawfulness). For this reason, he argues, dolo cannot be translated as ‘malice,’ as malice – which, as we previously saw, is intentionally committing a wrongful act, thus entailing knowledge of its wrongfulness – is connected to culpabilidade, not to dolo. 

One potential translation for dolo in criminal law might be ‘criminal intent’ (to distinguish it from dolo in civil law), as what matters is that the individual intent to perform the unlawful conduct, regardless of whether they are aware that it is unlawful. But another difficulty arises: the distinction between dolo direto and dolo eventual.

Dolo direto and dolo eventual

As we have seen, in criminal law contexts, dolo refers to the fact that the person who committed the unlawful conduct intended to commit it (independently from whether they were aware of its unlawfulness). Within this, two types can be distinguished:

• Dolo eventual entails that the perpetrator pursued a goal toward whose achievement a criminal act was a possible, even likely, condition. It refers to a situation where the individual foresees the possibility of a particular result from their actions and accepts it as a potential outcome. Examples of crimes that may involve dolo eventual under Portuguese law include certain traffic offenses, money laundering, and specific criminal acts such as receiving stolen goods.
• Dolo direto, by contrast, occurs when the commission of the crime is the perpetrator’s primary intent, no longer an accessory to it. In Portuguese law, crimes that require dolo direto are those in which the individual acts with the specific goal of producing an unlawful This can include crimes such as intentional homicide, theft with the intent to permanently deprive the owner of their property, and fraud committed with the direct intention of deceiving someone.

Moreira de Castro here equates dolo direto with first degree and dolo eventual with second degree, specifically for murder in US law — not only ignoring other charges and jurisdictions, but losing the specificity of the original distinction. He also offers ‘assumption of risk’ as another translation of dolo eventual: again, the translation seems inadequate.

Dolo eventual could also be associated with ‘recklessness,’ another common law concept used to define a certain level of intent, where the perpetrator is aware of the risk but nevertheless acts recklessly without regard to the ultimate consequences. However, the application of this concept is largely addressed in case law, not statute, making a direct correlation with dolo problematic and imprecise due to differences in interpretation between different jurisdictions.

Another option might be to translate dolo in criminal law contexts as ‘criminal intent,’ with dolo directo translated as ‘direct criminal intent’: and dolo eventual as ‘indirect criminal intent’ or ‘oblique intent’. However, given the awkwardness of this solution and the specificity of the Portuguese terms, and bearing in mind the target audience – who, as stated, will likely be familiar with them – there is also the option of leaving them untranslated.

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[1] “…toda espécie de artifício, engano, ou manejo, com a intenção de induzir outrem à prática de um ato jurídico, em prejuízo deste e proveito próprio ou de outrem.”

[2] Black’s Law Dictionary.

[3] Black’s Legal Dictionary.

[4] “Dolo é ‘saber e querer a realização do tipo objetivo de um delito’. Não exige a consciência da ilicitude, que é elemento da culpabilidade”.