2, 9. To know or be aware has two meanings, to have knowledge and to use knowledge; so that a man who has knowledge and does not use it may be justly said in one sense not to know, in another sense to know, if he fails to use it from negligence. . . . This distinction, then, must be added to complete the definition of the voluntary.' The Intentional, then, might be defined to be, that which is desired and caused with an explicit knowledge that it would be caused, or, with an explicit knowledge of its component elements. Intention (dolus) is either hasty intention (exemplified in åðíêŋμa), including actions impelled by any appetite or emotion, or deliberate intention (exemplified in adikía), denominated Resolve or Resolution (προαίρεσις). προαιρετὸν τὸ ἑκούσιον τὸ προβεβουλευμένον, Ethica Nic. 3, 2, 17. That is resolved which is voluntary and premeditated.'poaípeois àv ein Bovλevtikỳ õpeĝis, ibid. 3, 3, 19. Resolution is deliberate volition.'

Negligent violation of the law (culpa, åμáprŋua) is distinguished, on the one side, from misadventure (casus, árúɣnμa), and, on the other, from intentional violation of the law (dolus, åòíkημa), which again is distinguished from deliberate violation of the law (adıkla). τριῶν δὴ οὐσῶν βλαβῶν τῶν ἐν ταῖς κοινωνίαις, τὰ μὲν μετ ̓ ἀγνοίας ἁμαρτήματά ἐστιν, ὅταν μήτε ὅν, μήτε ὡς, μήτε ᾧ, μήτε οὗ ἕνεκα ὑπέλαβε, ταῦτα πράξῃ . ὅταν μὴ παραλόγως ἡ βλαβὴ γένηται . . . ὅταν δὲ εἰδὼς μὲν μὴ προβουλεύσας δέ, ἀδίκημα . . . ὅταν δ' ἐκ προαιρέσεως, ἄδικος καὶ μοχθηρός, μoxonpós, ibid. 5, 8. Of the three gradations of misconduct towards others, Fault or Negligence (culpa) is an unlawful act in ignorance of the subject, the degree, the instrument, the consequences, when it was reasonable to expect the mischief; unlawful intention (dolus) is breach of law with knowledge of these elements, but without premeditation; malice or depravity is evinced by the resolution or deliberate intention of violating law.'

The distinction between Negligence and Intention, and between hasty and deliberate intention, is not so important in the civil code as in the criminal code and in the eye of the moralist. The criminal code punishes less severely wrongs of inadvertence and crimes committed under provocation. But the thoughtless, incautious, imprudent, author of unlawful mischief, although he intended no harm, is just as accountable, chargeable, liable to the sanction of the civil law, and compellable to make reparation, as if his infraction of law was intentional.

Dolus being defined to be knowledge or consciousness of certain

facts, and culpa ignorance or unconsciousness of the same facts, are clearly two states of mind which must always be opposed. No degree of culpa will pass into dolus. Yet several expressions of the jurists imply the contrary: e. g. Magnam tamen negligentiam placuit in doli crimen cadere, Dig. 44, 7, 1, 5. Gross negligence is open to the charge of fraudulent intention.' But these statements only mean that dolus and culpa are often undistinguishable by a court of law. The phenomena of gross negligence are precisely similar to those of dishonest intention, and it is often impossible for a court to decide which interpretation they ought to bear. Again, as the consequences are equally mischievous, there is no reason why they should not be subject to the same legal sanction.

In its signification of deliberate intention Dolus is often used as an antithesis of violence and a synonym of Fraud. The reason of this is obvious. He who can attain his ends by force does not trouble himself with machinations and artful schemes. Wiles and plots, when their object is unlawful, usually imply an absence of violence and accompany manœuvres to surprise consent. It is in this sense that Dolus is defined by Labeo. Labeo sic definit: dolum malum esse omnem calliditatem, fallaciam, machinationem, ad circumveniendum, fallendum, decipiendum alterum adhibitam, Dig. 4, 3, 2. Labeo defines dolus malus as any craft, imposition, machination employed to overreach, delude, deceive, another.' There is, however, no necessary antithesis between deliberate intention and violence, and we find that the edict, Si cui dolo malo. hominibus coactis damni quid factum esse dicetur, Dig. 47, 8, 2, 'Mischief with dolus malus by men assembled is subject to the same penalty as Rapine,' uses the term to signify premeditated violence.

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There are three principal manifestations of Dolus, a conscious or intentional infraction of law: (1) delict, or the violation of a jus in rem, accompanied or unaccompanied with violence or intimidation, and possibly without any treachery or betrayal of confidence, e. g. theft or robbery; mala fides, involving a violation of the confidence necessary to social intercourse: and then either (2) the deliberate violation by a debtor of a jus in personam or obligation imposed by contract; in which case Dolus is opposed to Culpa and Casus or (3) any unlawful machination or circumvention leading another person to a manifestation of Will, whether bilateral, as a contract, or unilateral, as a testamentary disposition, or the acceptance or disclaimer of a succession, &c. Dolus in this form is often

called Fraud (fraus); it is ground to support an actio doli and in integrum restitutio on account of dolus.

Malice in English law appears to denote deliberate intention, or rather the depravity of disposition or badness of heart (adikía) which is assumed to be evidenced by a deliberate unlawful intention. Such at least is its meaning in the definition of murder. Perhaps, however, it sometimes only denotes unlawful intention (adíkŋμa), and, as rather belonging to the criminal than the civil code, it may be regarded as equivalent to criminal intention.

In the foregoing analysis of Intention, we have chiefly considered it as an ingredient in Torts and Crimes. As entering into Disposition, Intention has essentially the same character: that is to say, we must distinguish two stages in an act of will: an imperfect stage which may be called Volition, or an act of will unaccompanied by knowledge of certain facts; and a perfect stage which may be called Intention, or an act of will when accompanied and extended by such information. There is only this difference, that Offences are physical actions, and the Volition and Intention involved in them relate exclusively to muscular movements and their immediate consequences: in the analysis of Disposition we must substitute for Austin's statement the broader statement of Aristotle, and consider that the Volition and Intention which belong to the essence of Disposition relate, not, like those which enter into torts and crimes, to a muscular act and the result which it produces, but to an external declaration (incorporation) of an intended disposition, and either to (A) the whole disposition or to (B) certain of the essential elements of the disposition. This may be illustrated by examples.

A. Of dispositions null and void (wanting the essence of true dispositions) because Intention is excluded by error relating to the whole disposition we have an instance when a man signs one document believing it to be another.

B. The essential elements in respect of which an error excludes Intention and avoids the disposition are (1) the Right to be created by a disposition, (2) the Person to be invested with a right by a disposition, (3) the Thing to be transferred by a disposition.

1. There is an error in the Right to be created when a promissor means a loan and the acceptor means a donation, or vice versa.

2. There is an error as to the Person who is the object of a disposition in a devise, if the testator names one person as devisee

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when he means another: in a marriage, if one goes through the ceremony with a person other than he supposes: in a donation, when a donor gives a thing to a person who falsely personates the intended donee: in a contract, when an order for a work of art is given to a person who falsely personates an eminent artist.

3. Error respecting the Thing to be conveyed is called (a) error in corpore when it relates to an individual thing; as when there is a misunderstanding between buyer and seller or other contractors as to the specific thing to be conveyed; and this avoids the contract. When a Quantitas, that is, a thing only generically determinate is to be conveyed, a misunderstanding sometimes avoids a contract, sometimes leaves a valid contract for the lesser of the two quantities intended.

(6) Sometimes error respecting the Qualities of the thing to be conveyed, called inappropriately error in substantia, is held to be essential and avoids a disposition: thus a buyer may think a bronze vessel to be golden, or a leaden vessel to be silver, or vinegar to be wine, or a female slave to be a male slave. In such cases, whenever the difference of quality in the judgment of the mercantile world would make a commodity different in kind, the error is essential: when the difference does not amount to a difference in kind, the error is held to be non-essential and does not avoid the disposition.

Other errors than these three, however closely they may be connected with a disposition, and though they may have been the principal inducements thereto, are unessential or immaterial and leave the disposition valid. Only testamentary dispositions are in some cases invalidated by an error in Motive. E. g. the institution of a person as successor because a previously instituted successor or an intestate successor is falsely believed to be deceased: the institution of a person as successor because he is falsely believed to be a relative: the disinheritance inter ceteros of a son because he is falsely believed to be dead: the bequest of property belonging to a stranger which the testator believes to be his own; all these testamentary dispositions are invalidated by error.

Sometimes Error, though it does not operate so far as to invalidate a disposition, yet entitles the disposer to relief at the hands of the tribunals, particularly if it was produced by the fraud (dolus) of another party. In most countries the mitigation of the strict legal consequences of dispositions is the work of that branch of the judicature which administers what is called Equity in contrast with the tribunals that administer the more rigorous rules of law (jus

ipsum). In Rome such relief was given by the praetor in his equitable capacity under the forms of Exceptio, Actio, In integrum restitutio, the natures of which will appear in the course of this treatise. It was sometimes, however, given by the courts of civil law (jus strictum); for instance in the action called condictio indebiti soluti. If a person aliened property in the mistaken belief that he was under an obligation to do so, he could recover it back in the courts of civil law by this action, which belonged to the class of personal actions and claimed a reconveyance of property. The nature of the remedy indicates that the error of fact had not invalidated the alienation. Otherwise the remedy would not have been a condictio claiming a retransfer, but a vindicatio, a real action, contending that the property had never been effectually aliened, that the attempted transfer was inoperative.

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We have seen that ignorance of the specific constituents of an action is a ground of exculpation. This must not be extended to ignorance of the obligations to which a person is subject under certain circumstances, or of the sanctions by which these obligations are enforced. Hence the maxim that a party in a suit may allege ignorance of fact, but cannot allege ignorance of law. Regula est, juris quidem ignorantiam cuique nocere, facti vero ignorantiam non nocere, Dig. 22, 6, pr. Sciant ignorantiam facti non juris prodesse, nec stultis solere succurri sed errantibus, ibid. § 5. The rule is, that law is known to everybody at his own peril, facts are not known to everybody at his own peril.' 'Ignorance of fact may be pleaded, not ignorance of law; and relief is accorded to error, but not to stupidity.' The rule is founded on expediency. It would be impossible for a court to decide whether a party was really ignorant of the law, or, if this could be determined, whether his ignorance was inevitable or the effect of negligence. From the impossibility of deciding such a plea, it is not allowed to be pleaded, and ignorance of law is always assumed to be a case of Negligence, and unworthy of the sovereign's relief.

This distinction of Roman jurisprudence is parallel to one indicated by the Grecian moralist. Οὐ γὰρ ἡ ἐν τῇ προαιρέσει ἄγνοια αἰτία τοῦ ἀκουσίου ἀλλὰ τῆς μοχθηρίας, οὐδ ̓ ἡ καθόλου, ψέγονται γὰρ διά γε ταύτην, ἀλλ ̓ ἡ καθ ̓ ἕκαστα ἐν οἷς καὶ περὶ ἃ ἡ πρᾶξις. Eth. Nic. 3, 1. 'An act is made involuntary neither by ignorance of the primary ethical laws, which rather shows utter badness of will (dolus); nor by ignorance of general propositions, which also (as