Theft (furtum), as its probable etymology suggests, was originally confined to cases involving a carrying away (ferre). But in the course of the republic, the notion was extended very considerably until it covered almost any species of dishonesty. However, as a result of the introduction and extension of other delictual remedies, a tendency to retrench gained ground. More particularly, handling (contrectatio) and the intention of making an unlawful gain (animus lucri faciendi causa) emerged as the two distinctive elements normally to be found in cases of theft. They also form the cornerstones of the famous definition contained in Justinian's Digest (47. 2. 1. 3); see justinian's codification. However, the notion of theft remained fairly broad: no intention permanently to deprive the owner was required (borrowing without consent (furtum usus), therefore, was covered by the definition); the owner himself could be liable for theft (e.g. by taking his property from a pledgee: furtum possessionis); embezzlement was included; and even certain cases of fraud were taken to constitute theft. A person could also be liable for theft, if he had merely rendered physical assistance (ops) or participated in the delict by way of instigation or advice (consilium). But the suggestion that land could be stolen was widely rejected.
A thief was normally liable for double the value of the object stolen (actio furti nec manifesti). If, however, he had been caught in the act, the actio furti manifesti was available against him for four times the value (in mitigation of the much harsher regime still prevailing at the time of the Twelve Tables, when, for instance, a thief who came by night or who used a weapon, could be killed out of hand). The right to sue vested in the owner or any other person who had an interest in the security of the thing stolen (cuius interest rem salvam esse; Gai. Inst. 3. 203), such as a usufructuary or a pledgee (disputed). The purely penal actions on theft were preserved by Justinian, although it is probable that by the 3rd cent. ce criminal prosecution was the normal procedure. The owner also had an action to reclaim the thing stolen (rei vindicatio) or compensation if it no longer existed (condictio ex causa furtiva).
H. F. Jolowicz, Digest 47. 2Find this resource:
H. F. Jolowicz, De Furtis (1940).Find this resource:
W. Pika, Ex causa furtiva condicere (1988).Find this resource:
R. Zimmermann, The Law of Obligations (1990), 922 ff.Find this resource: