D. 47, 2, 1, 3 and the Roman case law

(a) Of mule drivers, peacocks, weights and spread-out togas

Yet, the Digest also reports a number of decisions that appear to overstep these boundaries (liberal though they were) and to assume a conception of theft so wide as to include almost any species of dishonesty.^{^[4718]} The "veteres", according to Paul, held a person responsible for theft who caused the loss of someone else's mules by fraudulently summoning him to court (so that, one has to gather, he was forced to leave the animals unguarded).^{^[4719]} The text ("Eum, qui mulionem dolo malo in ius vocasset, si interea mulac perissent, furti teneri veteres responderunt") mentions neither whether the mules were in fact stolen^{^[4720]} nor whether the "thief" intended them to be stolen; also, it does not disclose whether the summons was issued lucri faciendi gratia nor does it appear to be relevant whether or not the physical element of contrectatio was present.^{^[4721]}'¹ The veteres also seem to have been prepared to grant the actio furti against a person who chased, and thus caused the loss of, somebody else's tame peacock.^{^[4722]} Again, the mere fact that the owner was deprived of his peacock by an act of the defendant (which can hardly have involved a particularly manifest element of "handling") seems to have been a sufficient cause of action.

In the opinion of Mela (cited by Ulpian), a vendor could bring the actio furti against the person from whom the purchaser had borrowed weights which were heavier than they were meant to be ("Maiora quis pondera tibi commodavit, cum emeres ad pondus: furti eum venditori teneri Mela scribit");^{^[4723]} ^{^[4724]} whether the purchaser knew of the manipulation and could therefore be taken to have acted in concert with the borrower did not matter.

Sabinus was prepared to grant the actio furti against a man who spread out his toga in order to conceal a servus fugitivus from his master's eyes.²⁴ At a push, one may construe this as a contrectatio, but there is certainly no reference to an intention to steal on the part of the toga wearer.

(b) The nature of Roman definitions

Several strategies have been developed to deal with the apparent discrepancy between these texts and Paul's definition. Occasionally, for example, it has been suggested that one or the other of these rather extravagant decisions must be spurious.^[4725] More often, however, it is Paul's definition that has attracted criticism: both the animus lucri faciendi (or animus furandi)^[4726] and the requirement of contrectatio^[4727] have been held to have been incorporated by the compilers. Then there are those who have attempted to bring about a reconciliation by interpreting these two requirements loosely enough to cover even the apparent exceptions. Thus, lucrum has been interpreted as not necessarily connoting gain in any economic sense,^[4728] and the element of contrectatio has been held to have been satisfied even where there was no direct physical contact (as, for instance, in the case of the peacock).^[4729] Others, again, have read into the texts what they intended to get out of them. Jolowicz, among others, interpreted the word "perire" in the case of the peacock as " 'get lost' with the implication of theft",^[4730] Buckland believed the "veteres" in the case of the mule driver to have decided

"that ifl meddle with the thing [sc: the mule] willfully so as to deprive you of an economic interest in the thing, that is a contrectatio fraudulosa",^[4731]

and Watson presumes that both the person who summoned the mule driver to court and he who chased the peacock were held liable as accomplices: since it was their deliberate wrongdoing that permitted the theft to occur, the main offender's animus furandi is imputed to them and his contrectatio makes them liable.^[4732] More plausible, however, is yet another explanation.

Roman definitions cannot, as a rule, be taken as a definitive statement of all the necessary and sufficient conditions for specific legal consequences to arise; they are often more in the nature of "a useful guideline or a convenient summary of the main characteristics" of a particular concept.^[4733] ^{^[4734] Thus not even Paul, who (probably) devised at least the substance of the definition of furtum, can be taken to have had in mind a dogmatic strait-jacket fitting every type of theft. Much less can one expect the earlier jurists of classical Roman law to have adhered to it particularly strictly. The individual elements of which the definition was composed were fairly broad and lent themselves to differing interpretations;³⁹ we may therefore assume that many borderline cases were controversial, and quite possibly the proper scope of furtum was at one time even the subject of a school dispute between Proculians and Sabinians.^{^[4735]} (c) Furtum in ancient law
Most importantly, however, one must not forget that Roman law was never static. Between the enactment of the XII Tables and the end of the classical period of Roman jurisprudence lies a period of some 750 years, and it would be highly anomalous if the notion of furtum should not have undergone considerable changes in the course of it. Many details of the development are shrouded in speculation but its broad outlines are reasonably clearly discernible.^[4736] When with the codification of the XII Tables furtum emerged into the dawning of early legal history, it was already a specific type of civil wrong; and though we do not as yet find any definition, we may safely assume that it was rather narrowly confined to cases involving the asportation of a movable object that was in someone else's possession or detention.^[4737] That this must have constituted the original core notion of furtum is revealed particularly clearly by its etymology; for "fur" and "furtum" are derivatives of "ferre" (to take, to carry away).^[4738] It is implicit, too, in Gaius' statement of what constituted theft in his own time, that is, around the middle of the 2nd century A.D.
"Furtum autem fit non solum cum quid intercipiendi causa rem alienam amovet", he states at the outset,^{^[4739]} ^{^[4740] ^[4741] ^[4742] ^[4743]} thereby suggesting that it was at some time thus confined. (d) Developments in Republican and classical Roman law
In the course of the Republic, the notion of furtum came to be extended considerably. Furtum and damnum iniuria datum were, after all, the two principal offences against property, and the scope of damnum iniuria datum was fairly rigidly determined by the provisions of the lex Aquilia.^[4744] Thus it was to the as yet undefined notion of furtum that one tended to turn when a property-related offence occurred that deserved to be punished, without however, strictly speaking, fitting the requirements of either of these delicts. By the end of the Republic furtum had attained an indeterminate and almost boundless scope. It had been made to cover almost any situation in which a person, through someone else's deliberate act, suffered patrimonial loss other than by physical damage to the object in question.^[4745] All the rather extraordinary cases discussed above: the peacock and the toga cases, as well as the ones concerning the mule driver and the false weights are characteristic of this period; neither was a particular type of "handling" required, nor need the offender have acted for the purpose of gain. In the meantime, however, the praetors had explored and opened up other avenues of granting protection against wrongful harm. The range of application of the lex Aquilia was considerably extended by means of actiones in factum,⁴⁷ the actio de dolo,⁴⁸ the actio servi corrupt! and a variety of other remedies⁴⁹ had been introduced, and the criminal justice system, too, had been improved appreciably. As a result of these developments a tendency to reappraise, retrench and reformulate⁵⁰ the notion of furtum gained ground: for since the actio furti no longer served a kind of catch-all function, the need arose to reintroduce precision and coherence by carving out characteristic features distinguishing the old from the more recent remedies.
Here, as elsewhere, the great "Proculian" Labeo appears to have been the harbinger of the new approach. Distancing himself from the "cruel and severe"⁵¹ judgments given by the veteres, he no longer regarded the intention, on the part of the thief, to deprive another of his property as sufficient to constitute theft, but rather emphasized appropriation of the stolen property as a distinctive element of theft.⁵" He also drew attention to the (spurious) etymology of furtum suggested by Varro: "Furtum a furvo, id est nigro dictum Labeo ait", as Paul reports—a derivation insinuating an act done "clam et obscuro... et plerumque nocte".^[4746] ^{^[4747]} Sabinus, the head of the opposing school, was prepared to follow the veteres as far as the subjective side of theft was concerned. Deriving the word "furtum" from "fraus" (fraud),^[4748] he inclined towards a wider basic concept of theft than Labeo.^[4749] He even suggested that immovable property might be stolen.^[4750] On the other hand, however, he introduced the notion of adtrectatio into the discussion^[4751] as a convenient means of covering cases where a person unlawfully kept what was already in his possession,^[4752] as well as situations where he committed furtum through an act of asportation.^[4753] ^{^[4754] ^[4755] If Labeo thus stressed, and refined, the subjective side of theft, Sabinus called attention to a factual feature, characteristic, at least, of a variety of paradigm cases. Both aspects ultimately came to be combined, and thus we find contrectatio⁶¹¹ and animus lucri faciendi emerging, in Paul's definition, as the two distinctive elements normally to be found in cases of theft/'¹ The borderline between the actio furti and the actio de dolo always remained somewhat blurred, though: on the one hand there were, of course, certain core situations for which the actio de dolo was clearly the proper remedy; yet, on the other hand, it was granted only "si alia actio non sit".⁶² Whenever the fraud therefore led to a situation that was characterized by contrectatio as well as by an intention to make a profit, the actio furti continued to be granted.⁶³ 4.}}

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Source: Zimmermann R.. The Law of Obligations. Roman Foundations of the Civilian Tradition. Juta & Co, Ltd,1992. — 1241 p.. 1992

D. 47, 2, 1, 3 and the Roman case law

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