Rapina (Robbery)

This (G.3.182) is how Gaius makes the transition to delict:

Transeamus nunc ad obligationes quae ex delicto nascuntur, veluti si quis furtum fecerit, bona rapuerit, damnum dederit, iniuriam commiserit; quarum omnium rerum uno genere consistit obligatio cum ex contractu obligationes in IIII genera diducantur, sicut supra exposuimus.

Now let us turn to obligations which are born of delict. As where someone commits theft, seizes goods, causes loss, inflicts contempt. And the obligation from all these events belongs in a single category, though obligations from contract divide into four categories, as we explained above.

Four delicts. All in one class. One of the four, bona rapere, seizure of goods, lit. �to seize goods'. Gaius was a wonderfully clear-thinking lawyer. And in his scholarship he did not cheat. That is, he was not after effect but truth. But did he put in bona rapere for the sake of symmetry? Four kinds of contract and then, though only one kind, four species of delict. Justinian's Institutes do sometimes make you wonder whether truth has succumbed to beauty. Perhaps there are too many fours. But it is not like Gaius to be seduced. And yet the first problem with rapina is to see why it is not just a degree of theft, an aggravation of furtum much in the same relation to the central concept as is furtum manifestum. Nor does Gaius himself do anything to help us see why he promoted it to inde­pendence. When he comes to it, this is all he says (G.3.209):

Qui res alienas rapit, tenetur etiam furti (One who seizes another person's property is also liable to the action of theft). For who more clearly alienam rem invito domino contrectat (commits a contrectatio of another's property without his consent) than does someone who vi rapit (by violence seizes it)? And so it has quite rightly been said that such a person is a doubly disgraceful thief (improbusfur).

If we could sit Gaius down and ask him why this has a place of its own he might only answer that violence (vis) is an extra fact which takes the matter beyond theft. An extra fact in the defendant’s behaviour and therefore in the ingredients of the wrong itself. Whereas, in furtum manifestum, you are talking about the same wrong, exactly the same behaviour, but caught earlier. If so the next thing to ask him would be whether this second delict would better have been called vis than bona rapere. But this imaginary conversation gives us too much licence. There are three questions I would like to put to him: What justifies the separate heading? If you bring in this praetorian wrong (into what is otherwise a list in which everything has a ius civile root), how can you omit other edictal wrongs such as dolus (fraud) and servi corruptio (corruption of a slave)? For this is another difficulty for the fourfold list: if this bona rapere is genuinely distinct, other marginal wrongs are too. And finally, within this delict itself, what is the point of that simplum (single damages) after one year has passed? It is very odd that a plaintiff who can have an actio furti for the furtum which is contained within the rapina is offered an alternative action in which for proving more, vis as well as furtum, he gets less, simplum instead of duplum.

I do not know what the answers are. And the trouble is that this figure is too small to spend much time on here. Things are made worse by demonstrable interpolation in D.47.8, Vi bonorum raptorum et de turba. The picture is definitely more complex than Gaius reveals.

Si cui dolo malo hominibus armatis coactisve damni quid factum esse dicetur sive cuius bona vi rapta esse dicentur,

If any kind of loss shall be alleged to have been done to anyone when with evil intent men have been put in arms or collected into a gang, or if anyone’s goods shall be alleged to have been seized by violence,

in eum qui idfecisse dicetur, in anno quo primum de ea re experiundi potestasfuerit in quadruplum, post annum in simplum iudicium recuperatorium dabo.

against him who shall be said to have done it, I will give a trial before recuperatores for quadruple damages for one year from the time when it is first possible to bring an action about that matter, and for single damages after that year.

Item si servus familiave fecisse dicetur in dominum iudicium noxale dabo.

Also, if a slave or household shall be alleged to have done it, I shall give a noxal trial against the owner.^[51]

Nearly all private actions went before unus iudex, a single lay judge. This one goes to recuperatores, recoverers. There may be an advantage in that for the plaintiff. Possibly, and unlike the ordinary iudex, the recuperatores would take active steps to see the plaintiff obtained his due. The iudex would give judgement, but to levy execution you would have to go back to the praetor and even then you would get authorisation to take certain steps but no state help.

Immediately after this edict there followed two more, closely related to the theme of public order. Crowd violence and looting are their concern. In this kind of context it is necessary to recall that, however much the events in question bring crime to mind, these actions are civil, not criminal. That means they lie for the victim to obtain redress from the wrongdoer.

We cannot know whether Gaius meant his short reference to the action for goods seized by violence to include also these next two:

(i) De Turba

Cuius dolo malo in turba damni quid factum amissumve quid esse dicetur, in eum in anno quo primum de ea re experiundi potestas fuerit in duplum, post annum in simplum iudicium dabo.

On Crowd-Violence

If anyone shall be alleged to have inflicted any loss or caused anything to go missing by malice in a violent crowd (turba), I will give a trial against him for double damages within the year from when it is first possible to bring an action on that matter, and for single damages thereafter.^[52]

(ii) De incendio, ruina, naufragio, rate nave expugnata

In eum qui ex incendio ruina naufragio rate nave expugnata quid rapuisse recepisse dolo malo damnive quid in his rebus dedisse dicetur, in quadruplum in anno quo primum de ea re experiundi potestas fuerit, post annum in simplum, iudicium dabo. On Looting (lit. On fire, collapse, wreck, disabled boats and ships)

If anyone shall be alleged to have seized or received anything with wicked intent from out of a blaze, collapse, wreck or incapacitated boat or ship or to have inflicted some loss in any of these circumstances, against him I shall give a trial for quadruple damages within the year from the time when it is first possible to bring an action on that matter, for single damages thereafter.^[53]

All three of these edicts are concerned with damnum (loss). Depending on what was meant in De Turba by �making things go missing', either the first and third or all three are also about misappropriation. In this sense they both look back at furtum and forward to damnum iniuria datum (loss wrongfully caused) which is Gaius's next delict. They have in common the element of disorder. Perhaps the explanation of Gaius's treatment is that although the three together do arguably make a coherent unity distinct from furtum and damnum iniuria datum, yet �aspects of disorder' is not a very happy heading in a list of otherwise neatly named wrongs. �Theft, aspects of disorder, loss wrongfully caused and contempt' goes very soggy at second place. Possibly he meant to catch all three by using bona rapere as a representative. But that is a guess.