Paul’s Definition

When an English or Scottish judge offers a definition of a legal figure his words, however happily chosen and often repeated, have a quite different status from those of an Act of Parliament.

It is the same with a definition proposed by a jurist. However useful it is there is no obligation to pretend that it is final and no ban on improvements. But that is not to say that it may not be very useful indeed, very hard to improve upon and very hard to escape.

Towards the end of the classical period Paul advanced a definition of theft to which Justinian later gave great prominence. In the Digest it was moved from its natural place. The text in which it was embedded has been made to open the title De Furtis. It is D.47.2.1.3 (Paul, 39 On the Edict):

Furtum est contrectatio reifraudulosa lucrifaciendi gratia vel ipsius rei vel etiam usus eius possessionisue.

Theft is the fraudulent contrectation of a thing for the sake of making a gain whether from the thing itself, from its use or from its possession.

So this in Paul's view, provided it has not been tampered with, was the position to which the classical law had attained on furtum factum esse. Even though it is not a statutory text and was not a datum for the earlier jurists it provides a stable base from which to consider the ingredients of theft and to reflect on their development.

The words divide according as they do or do not have reference to the thief's intent. They describe the intent as �fraudulent' and later �for the sake of making a gain from, etc'.

One more thing must be added about Paul's definition. It recurs in Justinian's Institutes but with some words missing. Nothing is said of lucri faciendi gratia. The result is that the trichotomy at the end has to be carried back and made to depend on contrectatio which already has one �of a thing' to itself. This is atJ.4.1.1: �Theft is the fraudulent contrectation of a thing, whether of the thing itself, its use or its possession'. This is clumsy. Moreover if contrectation implies physical handling it cannot be done of use or possession but only of the thing itself. There is controversy. It is rather unlikely that �for the sake of making a gain' was cut out on purpose.

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