Furtum

One of the oldest forms of delict known to Roman law was furtum, generally translated as theft. However, the Roman concept of furtum was broader in scope than the modern concept of theft.^{^[920]} It encompassed not only the actual removal of another's thing but also a diversity of acts involving intentional interference with a movable object without the knowledge of, or contrary to an agreement with, the owner of such object.^{^[921]} According to the well-known definition attributed to the jurist Paulus: “Theft is the fraudulent interference with a thing, whether with the thing itself or the use or possession of it, with a view to gain—an action that is forbidden according to natural law.”^{^[922]} From this definition the principal elements of furtum can be derived.

The first element was contrectatio: the handling of an object against the will of the owner (invito domino) or the person who had a lawful interest in such object.

Examples of contrectatio included the removal of a thing, embezzlement, receiving stolen goods, disposing of a pledged thing without being authorized to do so (by a pactum distrahendi), accepting an object that the owner had handed over by mistake, and hiding an escaped slave. Furthermore, a pledgee or depositee who made use of the pledged or deposited object committed furtum as did the borrower who misused the thing lent and even the owner who fraudulently removed a thing from one who had a real right in it or from a hirer with a right of retention for expenses.^{^[923]} Secondly, there had to be intent (dolus malus) on the part of the thief to appropriate the thing (sometimes referred to as animus furandi or adfectus furandi) together with the intention to derive some form of gain or profit from such appropriation.

Thus, children and insane persons could not commit theft since they lacked the requisite animus furandi nor could a person removing or handling a thing under the mistaken belief, for example, that the thing was his or it had been abandoned by its owner.^{^[924]} Moreover, the stolen thing had to be a moveable corporeal object.^{^[925]} The act of seizing possession of immovables, even by force, did not constitute theft, although the person who was dispossessed in this manner had remedies for retrieving his possession. Finally, the thing had to be a res in commercio in which someone had a lawful interest. Thus there could be no furtum if the thing was a res nullius, i.e. it belonged to no one.

A distinction was drawn between three basic forms of theft: furtum rei, furtum usus and furtum possessionis. The first, furtum rei, was the unlawful appropriation of another person's movable property. This existed as the most frequently occurring form of theft. Furtum usus, or theft of use, consisted of the improper use of a thing belonging to another where the thing was obtained from the owner for a specific purpose and was in the possession of the thief. Examples of this kind of theft included those of the depositarius who used an object deposited with him for his own purposes, or of the commodatarius who used an object handed over as a loan for a purpose different from that for which it had been lent.^{^[926]} The third form of theft, furtum possessionis or theft of possession, arose when an owner improperly removed his own thing from the possession of another person who had the right to hold it (e.g. a usufructuary or a pledgee).^{^[927]}

A further important distinction inhabiting the law of theft was that between manifest theft (furtum manifestum) and non-manifest theft (furtum nec manifestum). This distinction, recognized by the Law of the Twelve Tables, was important because the punishment imposed for manifest theft was much harsher than that imposed for non-manifest theft. Originally, theft was considered to be manifestum if the thief was caught in the act.

In the classical era, however, various interpretations of furtum manifestum were proposed by the jurists. As Gaius narrates, some jurists maintained that manifest theft was theft detected while being committed; others held that it was sufficient if the thief was found on the premises where the theft was committed; and others, ventured further in proposing that theft was manifest where the thief was caught with the stolen property before he had carried it to his destination.^{^[928]} The law of Justinian admitted all the above-mentioned cases as furtum manifestum.

According to the Law of the Twelve Tables, a manifest thief (fur manifestus) who tried to defend himself with arms or who was caught stealing by night, could lawfully be killed.^{^[929]} In all other cases, the thief was presented before a magistrate, flogged and handed over to the person from whom he stole.^{^[930]} In the later republican age the penalties established by the Law of the Twelve Tables fell into disuse as a new penal action, the actio furti manifesti, for four times the value of the property stolen was created by the praetor. This action remained throughout the ages to the time of Justinian’s reign.

In all the cases that did not meet the requirements of furtum manifestum the thief was considered to be non-manifest (nec manifestus) and the actio furti nec manifesti, directed at payment of twice the value of the stolen property, was instituted for the punishment of the thief. ^{^[931]}

Originally, the actio furti could only be instituted by the owner of the stolen property,^{^[932]} but in later law it was made available to others who had a legitimate interest in such property, especially persons liable for custodia. In general, it may be asserted that the action was available to any person considered to have an interest in the property not being stolen such as the pledgee, the usufructuary, the bona fide possessor and other persons in a similar position.^{^[933]} It should be noted that where the actio furti was instituted by a person who had an interest in the object stolen, an action by the owner was in principle precluded.^{^[934]}

The actio furti manifesti could be instituted only against the thief and his accomplices, i.e.

those who actually committed the contrectatio. The actio furti nec manifesti, on the other hand, could be instituted also against the person or persons who assisted the thief by aid and counsel (ope et consilio) or who incited him to commit the theft. The liability was cumulative in the sense that each wrongdoer was liable for the same penalties.^{^[935]}

In addition to the actio furti, the owner of the stolen property could institute an actio rei persecutoria for the recovery of such property or its value. One such action was the actio rei vindicatio, a real action by means of which he could reclaim the possession of his property from any person (whether bona fide or mala fide) who may have held it without a right to do so. The condictio furtiva was an alternative comprised of a personal action that the owner could launch against the thief or his heirs for the recovery of the stolen object or its value (also applicable to the case where the rei vindicatio could not be instituted because the relevant object no longer existed).^{^{New Roman",serif;color:black'>[936]}} Depending on the circumstances of the case, other actiones rei persecutoriae could apply such as the actio depositi.

4.10.2

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Source: Mousourakis G.. Fundamentals of Roman Private Law. Springer, 2012.— 366 p.. 2012

Furtum

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