1. Actio furti nee manifest!

(a) "Quanti es res fuit, duplum"

What we have just quoted was the intentio of the formula of the actio furti nee manifesti: if it appears that a golden cup has been stolen from the plaintiff by the defendant or with the aid or through the incitement of the defendant....

Depending on whether or not the matter did in fact so appear, the judge was instructed either to absolve the defendant or to condemn him to the plaintiff into "quanti ea res fuit, cum furtum factum est, tantae pecuniae duplum". The thief was liable for double, and what had to be doubled was, generally speaking, not the plaintiffs interest in the object not being stolen (his "damages", as we would put it), but the value of the stolen object at the time of the commission of the delict.⁷⁸ If, however, its value subsequently increased, assessment of the sum of condemnation had to be based on that higher value: the reason being that the object in question could be considered as stolen, not only at the moment of the first contrectatio, but at the time of the rise in value too ("... quia et tune furtum eius factum esse verius est").⁷⁹ Theft, in other words, was construed as an ongoing wrong ("Dauerdelikt").

Assessment of "quanti ea res fuit, duplum" could cause problems where a document that had been drawn up to evidence a claim or payment was stolen. Should one base the claim merely on the value of the material of which the document consisted and thus consider the matter merely in terms of the disappearance of a tablet or a piece of paper? This would, in many cases, hardly have been satisfactory: after all, the document was designed to represent the sum that had been specified therein. Very widely, therefore, the full value of the sum in question came to be accepted as the measure of the value of the document removed: "Qui tabulas cautionesve subripuit, in adscriptam summam furti actione tenebitur."⁸⁰ But this approach led to a logical dilemma.

For if it was possible to prove adscripta summa to the judge in the theft proceedings, the loss of the document had not really deprived the plaintiff of anything more than a tablet or a piece of paper: he would still be able to pursue his claim against the defendant, even without the use of the document. If, on the other hand, the document was of essential importance for establishing that claim, the plaintiff was not really able to prove adscripta summa (and that is: the sum specified in the document on which assessment of the poena furti was to be

^7H Ulp. D. 47. 2. 50 pr.: "In furti actione non quod interest... duplabitur, sed rei verum predum": cf. also Ulp. D. 50. 16. 193.

^B Ulp. D. 47. 2. 50 pr.

® Paul. D. 47. 2. 83. 3; cf. also D. 47. 2. 27 pr. sqq. based) in the theft proceedings either.^{^[4767]} How the Roman lawyers ultimately resolved this difficulty is not entirely clear.^{^[4768]} Generally speaking, they appear to have been concerned with evaluating the plaintiffs interest in the document ("quanti ea res fuit" in the sense of "what the matter was worth for him"),^{^[4769]} which in turn depended on its real probative value. Post-classicaljurisprudence seems to have reverted to the choice of simply doubling the adscripta summa (wherever it could be established)?^{^[4770]} Although in these and certain other cases^{^[4771]} the notion of interesse was brought into the discussion, the actio furti (nee manifesti) always remained a purely penal remedy?^{^[4772]} the duplum was not designed to compensate the victim for his loss; it served merely to penalize the thief. Condemnation entailed infamia.^{^[4773]} ^{^[4774]} The person to be sued, as is apparent from the formula, could either be the thief himself or an accomplice.

(b) The right to sue: ex hire dominii and custodia liability

But who could bring the actio furti? Very often, of course, this question was not difficult to answer either: if A steals clothes belonging to B, the right of action must obviously vest in B: "iure dominii defertur furti actio.^1,88 This solution did, however, not always commend itself as appropriate.

Take the case where B has given his clothes to a tailor to be mended, and it is the tailor (C) who loses them by theft. In this situation it is ultimately C who loses out, not B, the owner. For as long as C has been promised a remuneration for thejob, a contract of locatio conductio operis exists between him and his customer. On account of this contract he is liable for custodia.^[4775] Custodia, as we have emphasized repeatedly,^[4776] included liability for loss resulting from theft, quite irrespective of whether the debtor himself could be blamed for the incident or not. B's position was therefore well protected, because,

unless C could plead vis maior (which, however, he was unable to do in case of theft), he could obtain redress on the basis of his actio locati. Under these circumstances it was hardly equitable to grant him the actio furti too. It was C who was the ultimate victim of A's wrongful behaviour and who thus deserved to claim the penalty. This was generally recognized in Roman law: "[S]i... sarcinator sarcienda vestimenta mercede certa acceperit eaque furto amiserit, ipse furti habet actionem, non dominus", as Gaius crisply put it.^[4777] He rationalized this result in terms of an old rule according to which the actio furti could only be given to the person who had an interest in the safety of the thing that had been stolen: "Cuius interfuit non subripi, is actionem furti habet."^[4778] This was usually the owner, but if the owner could proceed against someone who was liable to him under a contract involving custodia, that other party took his place. Not only could the contractor in a locatio conductio operis relationship be in such a position, but also a lessee (locatio conductio rei),^[4779] a borrower (commodatum)^[4780] and a pledgee (pignus).^[4781] A depositary, on the other hand, was normally liable only for dolus {and culpa lata);^[4782] he did not therefore have a specific responsibility for (and interest in) the safety of the thing.

If the deposit was stolen from him, his position remained unaffected: he neither could be sued by the depositor nor could he, in turn, sue the thief for duplum.^[4783] The matter was different only if the depositary had specifically agreed to be liable for custodia.^[4784] ^{^[4785] (c) The right to sue; emptio venditio and miscellaneous other cases
What about the vendor who had sold, but not yet delivered, the merx? Ownership had not yet passed, but the risk was already, emptione perfecta, on the purchaser. Yet the practical impact of the risk rule was limited by virtue of the fact that the vendor was under a custodia liability: if the merx was stolen before delivery, the purchaser could bring the actio empti and claim damages for non-performance.⁹⁴ We are not surprised, therefore, to find the actio furti being granted to the vendor rather than the purchaser: "Eum qui emit, si non tradita est ei res, furti actionem non habere, sed adhuc venditoris esse hanc actionem Celsus scripsit."^[4786] Yet, the actual reason for this proposition was not the vendor's liability for custodia. Of overriding importance was the fact that the vendor was still owner of the object sold^[4787]—for, after all, we are dealing here with the rather exceptional, in fact unique, situation that an owner was liable for custodia to a non-owner. That the vendor could thus avail himself of the actio furti iure dominii was not of purely academic interest. Conductor, commodatary and pledgee were granted the actio furti only as long as they were able to honour their obligation towards the owner; as soon as they fell insolvent, the right to bring the actio furti reverted to the latter, "quia hoc casu ipsius interest rem salvam esse".^[4788] The vendor, on the other hand, on account of being owner, retained the actio furti irrespective of whether he was still solvent or not. The purchaser merely had an obligatory claim to have the object handed over, and such a claim could not prevail against the vendor's ownership when it came to determining "cuius interest rem salvam fore".
This principle, incidentally (obligatory claim not a sufficient basis to sue for theft), was of general application; a person, for example, to whom a thing was due under a stipulation did not have the actio furti either.^[4789]"³ Yet, ownership and custodia liability were not the only bases for entitlement to bring the actio furti. A somewhat haphazard group of cases existed, where the Roman lawyers were prepared to recognize a legally relevant interest^[4790] in the possession, the use and enjoyment or retention of a thing: the position of the usufructuary, for example, enjoyed such recognition, and so did that of a bonae fidei possessor or of a person entitled to a ius retentionis.^1(>5 In all these cases the actio furti was, however, split; the owner of the stolen object was still entitled to bring the actio furti for any amount exceeding the usufructuary's, possessor's etc. interest.
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Source: Zimmermann R.. The Law of Obligations. Roman Foundations of the Civilian Tradition. Juta & Co, Ltd,1992. — 1241 p.. 1992

1. Actio furti nee manifest!

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