Complicity in theft

As a consequence of this retrenchment of the notion of furtum a further, very important distinction came to be drawn which, in turn, prevented the range of liability from being confined too narrowly.

"qui ipse furtum non fecerit, qualis est cuius ope consilio furtum factum est. in quo numero est qui nummos ribi excussit ut eos alius subriperet... aut oves aut boves tuas fugavit ut alius cas exciperet."

This is the locus classicus on complicity in theft: a person may be liable under the actio furti, even though he has not himself perpetrated the delict, but merely either rendered physical assistance ("ops") or mentally participated in the theft by way of instigation or advice ("consilium").⁶⁵ Gaius provides two stock examples to illustrate this proposition: A knocks some coins out of B's hand so that C can run away with them; D stampedes E's sheep or cattle to enable F to catch them. There is no question that C and F can be charged with theft. But A and D are also liable, even though they did not "handle" (in the sense of contrectare) any of the coins or cattle. This distinction between main perpetrator and accomplice had, of course, been entirely unnecessary at a time when the notion of furtum was so vague and imprecise as to cover almost every form of dishonesty. There is in fact evidence that the veteres went so far as to hold A liable for theft, quite irrespective of the eventual fate of the coins: neither did they require him to have acted in concert with C nor did they regard it as necessary that there was such a third party as C who benefited from A's act; the coins could merely have rolled into the sea or into a sewer.⁶⁶ Likewise, the man who waved the red banner in order to stampede somebody else's cattle: as long as he intended the cattle to stampede, it did not matter whether they were taken by a third party, fell over a cliff and died or merely ran away and

proposition, sec Paul.

"" Supra, p. 664.

^1,3 Supra, pp. 923 sq.

< Gai. DI, 202.

On the distinction between ops and consilium, cf. Ulp. D. 47, 2, 50, 3.

'^ls Ulp. D. 9, 2, 27, 21, as interpreted by Geoffrey MacCormack, "Ope consilio furtum factum", (1983) 51 TR 271 sqq., 275 sq.; and cf. Albanese, (1953) 23 Annali Palermo 162 sqq. disappeared.^[4756] With the recognition of contrectatio as a characteristic element of theft neither the striker nor the banner waver could, however, any longer be regarded as thieves. Where their actions had resulted in the loss of the coins or in the death or disappearance of the cattle, Aquilian protection had become available;^[4757] where, on the other hand, they had participated in somebody else's theft they were held liable as accomplices.^[4758] The requirement of contrectatio thus provided both the substantive cause and the touchstone^[4759] for the distinction between principal offender and accomplice. Dogmatically, it was based on an ingenious reinterpretation of the clause "ope consilio Numerii Negidii furtum factum" contained, from of old, in the formula of the actio furti non manifesti.^[4760] Originally it was taken as a compendious phrase embracing the physical and mental requirements of theft: it had to be committed "by act and design" of Numeriis Negidius.^[4761] It may have been Labeo who for the first time advocated a disjunctive interpretation and understood the words "ope consilio" in the sense of "by (Numerius Negidius') help or advice". ^[4762] This interpretation must rapidly have established itself as authoritative, for we find it in a variety of texts dating from either the end of the 1 st or the beginning of the 2nd century A.D.^[4763] "[SJicut nemo furtum facit sine dolo malo, ita nee consilium vel opem ferre sine dolo malo posse", remarks Pedins,^[4764] thus clearly distinguishing between the person who commits the theft (furtum facere) and those who merely assist, whether it be consilio or ope. It is likely that even the formula was slightly changed^[4765] to accommodate the new, and differentiated, way of looking at liability for theft: "Si parct Aulo Agerio a Numerio Negidio opeve consilio Numerii Negidii furtum factum esse paterae aurae...";^[4766] for if ope consilio entailed liability (merely) for complicity in theft, a special clause had to be inserted to cover liability for theft proper.