D. 47, 2, 1, 3 and the modern German concept compared

First of all, mere furtum usus constituted theft. Thus, for instance, the depositary was liable if he decided to use the thing deposited with him,^[4708] and so was a borrower who took the lender's horse further than he was meant to take it.^[4709] Likewise, a fuller or tailor who received clothes for cleaning or repair: "...

si forte his utatur, ex contrectatione eorum furtum fecisse videtur, quia non in earn causam ab eo videntur accepta."^[4710] Secondly, the Roman notion of theft covered furtum possessionis. The main example was that discussed by Gaius: "Aliquando etiam suae rei quisque furtum committit, veluti si debitor rem quam creditor! pignori dedit subtraxerit"^{[4711] [4712]}—if someone has pledged a piece of property to his creditor, and subsequently taken it away from him, he has committed theft; for although the object that he took belonged to him,¹⁷ he has still deprived the pledgee/creditor of its possession. In the third place, theft comprised what we have just referred to as embezzlement. "Eum creditorem, qui post solutam pecuniam pignus non reddat, teneri furti Mela ait, si celandi animo retineat", writes Ulpianus and approves "quod verum esse arbitror."^[4713] The pledgee/ creditor who holds on to the pledge after the debt has already been paid, merely keeps what is in his possession anyway. Yet, provided he has acted with a view to concealing the object in question from the debtor, the latter is able to institute the actio furti.^{[4714] [4715]} Finally, certain instances of fraud were taken to constitute furtuni. Thus, for example, a false creditor ("hoc est is, qui se simulat creditorem" )²¹¹ was regarded as a thiefifhe accepted payment tendered by the debtor—"furtum fit", in the more generalizing words of Scaevola, "cum quis indebitos nummos sciens acceperit".^[4716] All these cases fit Paul's definition: there was a physical contact between thief and stolen property that could be described as contrectatio,^[4717] and the thief acted with the intention of making an unlawful gain.

3.

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