Other remedies available in case of theft
The penal actio furti, in its various manifestations, was not the only remedy available to the victim of a theft. The owner of the stolen object could obviously bring the rei vindicatio for its recovery.
According to its formula, the defendant was asked, in the first place, to return the object;[4824] if he refused to do so, he was condemned to pay "quanti ea res erit, tantam pecuniam". Clearly, therefore, the rei vindicatio was a reipersecutory remedy.[4825] The same was true of the contractual claim, of which the plaintiff was sometimes able to avail himself against the thief.[4826] If the depositary used the object deposited with him, he committed furtum.[4827] At the same time, however, his behaviour constituted breach of contract, and thus the actio depositi could be brought against him. If the borrower took the lender's horse further than he was meant to take it, he was liable under the actio commodati. In other cases, again, the actio locati was available: as, for example, when a fuller used the clothes that he was meant to clean.[4828] Even on account of these more general avenues for obtaining redress, the victim of a wrong was therefore well protected. But there was yet another action in his armoury of remedies, tailored more specifically to the case of theft: the condictio ex causa furtiva. Just like the rei vindicatio, it was at the disposal of the owner of the object stolen,[4829] and thus it differed in one important respect from all the other condictiones. "Si paret Nm Nm A° A°... dare oportere" (the intentio of the condictio) was normally taken to refer to situations where the defendant had (without good reason) acquired ownership and was now obliged to retransfer it to the plaintiff/[4830] The thief, however, as a result of his theftuous behaviour, had not, of course, acquired ownership. Gaius recognized the anomaly of the situation and attributed the rather peculiar use to which the condictio was put to the hatred of thieves. "[P]lane odio furum", he said,[4831]"quo magis pluribus actionibus teneantur, receptum est ut, extra poenam dupli aut quadrupli, rei recipiendae nomine fares etiam hac actione teneantur: si paret cos dare oportere, quamvis sit etiam adversus eos haec actio qua rem nostram esse petimus."
Whether or not this speculation as to why the condictio was thus extended is soundly based,[4832] it is clear that the condictio ex causa furtiva was generally recognized in classical law.[4833] [4834] [4835] [4836] Unlike the actio furti, but just as the rei vindicatio, it was reipersecutory in character ("Poenam tantum persequimur... actione furti.. nam ipsius rei et vindicatio et condictio nobis competit").[4837] It was available in cases of manifest and non-manifest theft/[4838] provided, of course, the thief had dispossessed the owner[4839] and the latter had not, in the meantime, regained possession of the object stolen.[4840] [4841] Under a condictio ex causa furtiva a thief was liable even if he had lost what he had stolen or if it had been accidentally destroyed. This was already recognized by the veteres, as Tryphoninus reports: "Licet fur paratus fuerit excipere condictionem et per me steterit, dum in rebus humanis res fuerat, condicere eam, postea autem perempta est, tamen durare condictionem veteres voluerunt, quia videtur, qui prima invito domino rem contrectaverit, semper in restituenda ea, quam nee debuit auferre, moram facere. "15S A thief was always considered to be in default ("fur semper in mora"), and all the consequences of mora debitoris were thus applicable to him without interpellatio.[4842] Herein lay the main advantage of the condictio in comparison with the rei vindicatio; for the rei vindicatio, being a remedy in rem, was bound to fail wherever the defendant no longer had the object of the dispute.[4843] 4.
More on the topic Other remedies available in case of theft:
- The history of the modern concept of theft
- Theft and robbery
- Theft (furtum)
- Complicity in theft
- 1. The concept of theft in criminal law
- II THE ACTIONS ARISING FROM THEFT
- PART II Delicts Furtum (Theft)
- Praetorian remedies
- Other forms of praetorian remedies
- D. 47, 2, 1, 3 and the Roman case law
- Remedies
- Conventions in case names
- The remedies