Theoretical Underpinnings of the Doctrine of Transferred Malice
Theoretical Underpinnings of the Doctrine of Transferred Malice

Summary/Abstract: Mistaken identity and bad aim have been traditionally accepted as the two textbook situations where the doctrine of transferred malice has found application. By reference to a cross-section of academic sources as well as case law from a number of common law jurisdictions, three core elements of transferred malice are identified: the intent of the defendant, the consequence that befalls the unintended victim, and public intuitions with regard to resulting harm. The overarching conclusion of the considerations consists in reaffirming the role of factual contingencies in deciding cases as well as the existence of a significant policy element which has caused, the paper submits, judges to subsume under the umbrella term of transferred malice cases which could satisfactorily be explained by means of other legal concepts, most notably remoteness, foreseeability or negligence.

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