Claiming the Res

I see you beginning to drive away my cow. As I rush out you are pushing the animal into a cart. You are liable for theft.

But you now abandon your booty in order to escape. I have my cow again.

Because that action is not conceived as having a reipersecutory aim. That is, not as asset-recovering. On the contrary it is conceived to be penalty-recovering (poenam persequens). The money obtained by the victim through the actio furti punishes the defendant for the wrong. Therefore once you have committed theft the fact that I have reco­vered the thing is neither here nor there. I can still go for the penalty.

Suppose I have not recovered the res. You still have it. The logic still holds. I can vindicate it as well as claim the penalty. The formula of the vindicatio says �If it appears that the cow which is the subject of this action belongs at civil law (ex iure Quiritium) to Aulus Agerius’ and goes on to direct the judge to condemn in money. So my vindicatio will give me the value of the cow. But the actio furti asks whether you should settle as a thief, and that is taken to mean, pay for the wrong of stealing. The vindicatio leaves that untouched.

Suppose that I have not recovered the res but you, the thief, no longer have it. You have either eaten it or parted with it to someone else. The vindicatio will not lie against you. If the res still exists in the hands of a third party it will lie against him. If it has ceased to exist, the vindicatio died with it. But an owner has another reipersecutory action against the thief which is indifferent to the question whether he does or does not still possess the stolen good. This is the condictio. Against a thief it is called the condictio furtiva.

The formula of the condictio is abstract. It never reveals on its face the ground or cause of the plaintiff's claim.

The boundaries between actions being so drawn, it is certain that we cannot claim our property (rem nostram) from another by this pleading: �If it appears that he ought-at-civil-law to give'. For what is ours cannot be given to us, in

182 delicts

that something is understood to be given to us when it is so given as to become ours, and a thing ours already cannot be made more so.

When a thief steals he obtains possession at best. He does not acquire title. The stolen Daisy remains mine. That is why I can use the vindicatio. It follows that the condictio against the thief, except where Daisy has ceased to exist, is a claim in respect of �a thing which is ours already' and which cannot therefore be �given'. So it should not lie at all. It is exceptional. Gaius goes on (G.4.4, continued):

Clearly it is from hatred of thieves, and to make them liable to more actions, that it has been accepted that, in addition to double and quadruple penalties, they should also be made liable, under the head of asset-recovery, to this action which says �If it appears they ought-at-civil-law to give.' And this notwithstanding the fact that there also lies against them the action in which we assert that the res is ours.

The thief faces claims for penalties and claims for recovery of the thing. Success in the one aim does not exclude the other. But within each success cannot be multiplied. If I have succeeded in the reipersecutory aim by one means I cannot do it again by another. Hence the vindicatio and the condictio furtiva are alternative, and both are excluded if, as in the example at the beginning of the section, the thief never gets away with the res, or if he gives it back without litigation.