Liability for Helping

The formula asked the judge whether theft had been committed by Numerius Negidius or with the help of Numerius Negidius. And Gaius, at G.3.202, says:

Sometimes a man is liable for theft who himself has not committed theft.

The one who falls under this head is the person by whose help the theft is committed.

The first observation is that the theft must have happened. The judge has to say whether a theft was committed by or by the help of the defendant. It follows that there is no liability for helping a theft which fails to come off. That is, which never reaches the point of contrectatio. This does not mean that there must always be a principal thief who is capable of being made liable to the actio furti. Take the case offurtum domesticum, domestic theft. This was a matter left to the private jurisВdiction of the paterfamilias. If a son or a slave or a free servant stole within the household, no actio furti could be brought. Suppose then that the son was helped by an outsider. The proposition in the formula could still be substantiated. Because the question between the paterВfamilias and the outsider was whether a theft had been committed and, if so, whether by the outsiderвЂ™s help. There was nothing about the liability of the principal thief.

Two questions arise. What nexus, if any, was required between the helper and the thief? What counted as help within the rather difficult Latin phrase which that too crudely translates?

What nexus? Centrally, we think of pre-complicity. That is, of the case in which the helper plots in advance with the other, so that a role in the action is assigned to each. The helper will drive the cows off, the other will collect them round the corner; the helper will dig the tunnel, have transport ready and so on, the other will go in and get the diamond. But there are less obvious cases capable of falling within the words of the formula.

It only requires the theft to have been committed by the help of the defendant. Three cases can be constructed which might conceivably fit despite the absence of preВcomplicity. Starting at the most extreme, I am mending your roof and for the job I have a set of ladders on your premises. At night thieves come. They use my ladders. I have done nothing unlawful but I have helped the theft. In the next case I break into your house. I smash down the door. I have no thoughts of theft. It is anger which makes me do it. Or once again love. Later, because your door is broken, thieves find easy access. Again I have helped. This time by an unlawful act but one unaccompanied by theftuous intent. In the third case, still short of pre-complicity, I want a theft to happen. I leave open the door of your house hoping that a thief will enter, and perhaps I broadcast the fact in the pub that evening. Or I drive off your cows knowing and hoping that someone will get them. Or I knock your hand so that your money goes into the crowd. If I were to throw your money into a crowd I myself would do the contrectatio and whether my motive was a grudge against you or compassion for the masses I myself would commit the theft. The difference in these cases is that intending to re-allocate your wealth I myself avoid handling it. Others dishonestly contrectate it, but I help both unlawfully and with animus furandi. There is another version of this third case. Here there is a pre-complicity between me and X. I will drive off the beasts. He will collect them. Something goes wrong. He fails to be in his place. Y makes off with the animals instead. YвЂ™s theft has been committed by my help though I knew nothing of him.

Where did the law draw the line? All these cases are capable of being brought within the proposition of the formula. It would be difficult to accept that the first one was. It would be a dangerous world of liability for theft attached because a thief happened to avail himself of your lawful and everyday acts, driving off in the car you parked nearby, arming himself with the milk-bottle on your doorstep. We know the first case was excluded, because the second one was too.

It is clear that one did not become liable for helping merely because one did an unlawful act which happened to help. Ulpian puts the case of The ProstituteвЂ™s Door. It is D.47.2.39 (41 On Sabinus). A man broke into a prostituteвЂ™s house. He did it libidinis causa. Thieves then entered and stole things from the woman. The man was not liable for theft. Again Gaius, at G.3.202, contemplates one who drives off cattle. He will be liable for helping theft if he did it to enable another to take; but if he did it for fun the only liability which Gaius suggests is for causing loss: вЂ?It will be a question whether an actio utilis should be given since under the lex Aquilia, passed to deal with loss, even culpa (fault short of dolus) is punished.вЂ™ This ignorant townie chasing sheep on his day in the country can, objectively, help theft happen. But as soon as it is given that he acted non data opera ut furtum committeretur (not bending his efforts towards the commission of a theft) the inquiry into a liability for theft falls away.

We can conclude with reasonable confidence that the defendant could not be liable for helping unless he intended a theft to happen. There is no inconsistency in saying that it would make no difference if that intent was itself motivated by a non-theftuous intent, as where I want your animals stolen because I hate you or I decide to help people steal from you because they are my friends. So Gaius says, at D.47.2.55.4 (13 On the Provincial Edict):

Someone who knowingly lends a jemmy to break a door or a chest, or knowingly lends a ladder for climbing up, is liable to the actio furti. It does not matter that no intent of his was bent principally on the commission of the theft (licet nullum eius consilium principaliter ad furtum faciendum intervenerit).

If we say that the helper must have had theftuous intent, must he also have been in league with the person who committed the theft? Was there a requirement of pre-complicity? Almost certainly not.

This is partly established from silence. It is never said that this is a requirement. Then, the formula does not require it. Finally, the person committing the theft is not infrequently designated by an indefinite aliquis or alius, вЂ?someoneвЂ™ or вЂ?another person'.

What counted as help within the phrase used in the formula? The Latin is ope consilio, probably in apposition without any et. They are not easy words even taken one by one. Ulpian says, at D.47.2.50.3 (37 On Sabinus) that consilium dare means to persuade, incite and draw up a plan while opem ferre means to provide service and assistance for the carrying off. It is easy to say that consilium refers to mental and verbal contribuВtions while ops covers physical assistance. However, it is not clear that any problem is solved by splitting the combined ope consilio.

It does seem clear that incitement and encouragement is not enough. But it is not safe to say therefore that consilium on its own will not suffice. Because drawing up a plan for the theft, which Ulpian attributes to consilium dare, must ground the liability without more. Justinian at J.4.1.12 says:

Certainly a man is not liable to the actio furti if, giving no help to the commission of the theft (nullam operam ad furtum faciendum adhibuit), he merely offers advice and encourages its commission (consilium dedit atque hortatus est ad furtum faciendum).

This should not be construed as doing more than drawing a line between incitement and help. That is it should not be taken to require physical aid such as carrying ladders and breaking doors. In the first part of this section we simply used the word вЂ?helpвЂ™, and that seems as safe as it is simple.

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Source: Birks Peter. Roman Law of Obligations. Oxford University Press,2014. вЂ” 303 p.. 2014

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