2. FURTUM AND RAPINA

The law of theft is one of the least commendable parts of the mature Roman law, both because many archaic features were allowed to survive and because the delict was at times given so wide a scope as to defy definition.

Archaic features.

And there were other actions. The victim could demand to make a search with witnesses of any premises on which he thought the goods were hidden. If the search was refused, he could exact a fourfold penalty from the occupier (by the actio furti prohibiti). If the search was allowed and the goods were found, the occupier of the premises was liable (by the actio furti concepti) to a threefold penalty even if he knew nothing of the matter.^{[90] [91]} He could in turn obtain a threefold penalty (by the actio furti oblati) from the man who had left the goods on the premises, but only if he had done so to escape detection. Thus a householder could apparently be penalized without any such recourse if, for example, a guest of his had innocently bought stolen goods and had then left them behind in his house. It is unlikely that so crude a rule was ever put into practice in classi­cal times. The whole apparatus of actions was obsolete before Justinian’s time, and was not revived by him. Search was now a public matter, and no special provision was needed for the knowing receipt of stolen goods, since in the wide Roman conception of theft the receiver was simply a thief.

What constitutes furtum.

(i)     The act. In spite of its obvious derivation from the verb ferre, meaning ‘to carry’, furtum did not in the classical law require, as does the English crime of larceny, a taking away of the thing. The jurists use the term contrectatio, which strictly denotes a handling, but which seems to have included any meddling or dealing with the thing. Hence, as has just been said, the receiver was a thief, as also was the borrower who used the thing in an unauthorized way or to an unauthorized extent. (This is the so-called/uriwm usus, or theft of the use of a thing.) Likewise, embezzlement (the fraudulent appropriation of what is entrusted to one) or even, according to some jurists, the know­ing acceptance of a mistaken payment of what was not owing, was theft. Since such a payment transferred not merely posses­sion but also ownership, and since no one, and least of all the thief, could acquire ownership of stolen property, it was really a contradiction in terms to treat this last case as theft. The appro­priate heading was dolus.¹ But it is nevertheless impossible to find a clear distinction in the opinions actually given in the Digest.

(ii)size=1 face="Times New Roman">   The intent. The texts sometimes speak of an animus furandi or intention to steal, an expression borrowed also on occasion by English law, but since it offers a definition in terms of what is to be defined, it is of no assistance except as an indication that the defendant must be in some sense in a wrongful state of mind. In the ordinary case this will be sufficiently defined as the lack of an honest belief that the owner would consent if he knew. Thus, in the case of furtum usus, mentioned above, the borrower will be liable unless he honestly believed that the owner would have no objection. But what if the defendant had no such belief, but the owner in fact had no objection? Gaius puts the case of the man who urges a slave to steal goods from his master and hand them over.

¹ See below, p. 223. In a similar context English law used to distinguish between larceny, in which the wrongdoer obtains possession, and false pretences, in which he obtains ownership.

From the requirement that the act be done against the wishes of the owner it should follow that an owner could not steal his own property. This was however not so. If he took it from a person to whom he had, for example, pledged it, or from a bona fide possessor, he committed theft (the so-called furtum possessions).

An intention of a different kind is sometimes required—an intention to make a gain. This would obviously commonly be present, and would serve to distinguish theft from wanton destruction—a necessary distinction since the latter was a case of damnum iniuria datum.¹ It also served to exclude the compas­sionate release of a chained slave, which the jurists were reluc­tant to stigmatize as theft. The requirement was not, however, consistently carried through, and in an interpolated text it is given so wide an interpretation as to make it virtually meaning­less : a man who lends a thing which he himself has borrowed is held to gain because the man to whom he lends it will feel bound to do him a good turn.

(iii)  The thing. Any movable thing which had an owner could be the object of theft.

The plaintiff. As furtum possessions shows, it is not only the owner who may bring an actio furti. Gaius says that anyone who has an interest in the safety of the thing may sue. This is broadly speak­ing true, but not every interest will suffice. An unsecured creditor, for example, cannot sue, although he has, in a sense, an interest in the safety of his debtor’s property. For if the debtor is deprived of it he may be unable to pay the debt. Modern writers distinguish between a positive and a negative interest. The owner has a positive interest—his right of use, enjoyment, &c.—and so do beneficiaries of iura in re aliena. Any such person may sue, and the measure of the penalty will be the value of his interest. On the other hand, those persons have a negative

¹ See below, pp. 218 ff.

interest who hold the thing under a contract with the owner (e.g. commodatum) which makes them liable to him if it is stolen.¹ There are many difficulties, but it is probable that anyone who had a negative interest could sue, provided he was not insolvent (when his liability would be merely illusory) and provided his liability did not arise from his dolus. For, ran the maxim, no one may acquire an action by his own dolus. Since liability was the criterion, and since if he were liable at all it would be for the full value, the plaintiff with a negative interest had the action to the exclusion of the owner.

Reipersecutory actions.

New Roman">Rapina. In the disturbed years of the late Republic (c. 77 b.c.) a Praetor introduced an action for a fourfold penalty for violent damage to property by armed bands. The wrong envisaged was thus an aggravated form of damnum iniuria datum. It came, however, to include also theft with violence, even if committed by a single person, and in the settled conditions of the Empire this was treated as the characteristic case, the action being termed actio vi bonorum raptorum. It was thus simply theft with the added element of violence, and with a penalty of fourfold. In the law of Justinian, however, the action was treated as ‘mixed’, i.e. as both penal and reipersecutory, and therefore a reiper­secutory action could not be brought in addition.