The Absence of Consent

This is the ingredient of theft omitted in Paul's definition. It is an objective requirement. That is, it does not relate to the intent of the defendant. We have already seen that belief in consent, as opposed to the fact of consent, is relevant to animus.

The requirement is illustrated by The Loyal Slave, discussed by Gaius at G.3.198 and given a very different treatment by Justinian at J.4.1.8. Gaius starts by stating the rule:

But even if a person believes that he is contrectating a thing without its owner's consent, it is held that no theft is committed.

Then he puts The Loyal Slave. A would-be thief, Titius, asks my slave to bring something of mine out to him. The slave tells. To catch Titius, I order the slave to go through with it.

Will Titius be liable to me in a trial for theft or for corruption of a slave [a praetorian wrong] or in neither? Responsa have held that he will be liable in neither. Not for theft, on the ground that he did not contrectate without my consent.

This is a fascinating case. You can use it as a litmus test, to find out what kind of lawyer you are. You will either be impatient of its technicality and formalism or what have you, standing in the way of substantial justice; or you will be excited by its determination to impose intellec­tual order on the chaos of common sense. Thanks to the Fascists order of all kinds has become unfashionable. Not the least injury inflicted by them on the human spirit. For myself, I think lawyers become dan­gerous when their urges for right answers are not curbed by the discipline of meaning what, after due consideration, they have chosen to say. It is a big subject. And there is no need to be an extremist either way. Justinian’s preference was different from mine. He says that The Loyal Slave was presented to him as a case for ancient hesitation and dispute, with the learned divided between those who would allow neither action and those, not mentioned by Gaius, who would con­sider the actio furti. He settled the doubts. Faced with obvious wicked­ness, meaning what you were accustomed to say was less important than making the villain pay. This is what he says in the Institutes, at J.4.1.8:

To deal with this kind of cunning we provided by our determination [decisionem- this was one of the Quinquaginta Decisiones, Fifty Determinations or Settlements] that not only the actio furti but also the actio servi corrupti should be allowed against him.

At this point we can pick up the words of the decisio itself, at C.6.2.20:

Although the slave was not at all corrupted, yet the intention of the corruptor was directed to the subversion of his good character. And just as he is made liable for theft on account of his dishonesty, notwithstanding that according to the rules of law no theft has been committed, in that theft is understood to happen only in case of a contrectatio rei against the will of the owner, so the action for corruption may without aberration be extended against him on account of his own vice, so that the penal action may be brought to bear upon him as though by the attempt itself the slave had been corrupted, lest escaping scot free in this way should encourage him to put another, corruptible slave to the same test.

A legislator can get away with this.

The Loyal Slave exemplifies the case in which the defendant believed he was contrectating contra domini voluntatem but actually had the owner's consent all along. The facts are freakish, but the conflict between the objective consent and the rogue's beliefis straightforward. There is another kind of case where the conflict is more complicated.

Here the rogue is again dishonest. He knows that he has tricked the victim, whose consent is therefore vitiated by the deception. The victim so far as he is aware of the facts believes that he has consented to the contrectatio. The question is, Will the law regard the consent as operative or as nullified? If operative, the actio furti is excluded because the victim is taken to consent to the contrectatio. The extra complication arises because of the doubt, eternally troubling even to philosophers, whether a consent obtained by deception counts as consent at all.

The broad answer is that it depends how comprehensively the victim was deceived. If fundamentally, his consent will be nullified and the actio furti will lie. If not, he will be taken to have consented. With the actio furti excluded the victim can fall back to the actio doli, the praetorian remedy for fraud. Which deceptions fall on which side of the line? There is no sure guide. It is not surprising, given the meta­physical nature of the problem.

Suppose you misrepresent your qualities as a good person to lend money to. You say you are well off, about to embark the money in trade, will find good guarantors or will repay immediately. Or being a slave you say you are free, or a paterfamilias when you are still in power.

By contrast if you borrow money by misrepresenting your identity you are a thief. You pretend to be the Titius to whom I intend to lend. That is Ulpian at D.47.2.52.21,^[47] also at D.47.2.43.3.^{[48] [49] Similarly if you use false weights to get more than you pay for, D.47.2.52.22.8 Suppose you get your ring back from a pawnbroker by saying you are just going to pay and then once you have your hands on it you throw it out to a friend and dash off. Pomponius says that you are a thief (D.13.7.3 = 18 On Sabinus). Scaevola at D.13.1.18 (4 Questions) seems to regard it as axiomatic that where a payor hands over a sum which he believes he owes to you, if you know the money is not due you will commit theft.}

These examples serve to show the nature of the problem. They barely touch on its complexity.

Who is it whose consent matters? It is easy to slip into the habit of referring to the consent of the owner. The Roman texts do the same. The usual phrase is invito domino. It is not always the owner. For example, an owner can steal from a pledgee as we have just seen. He consents but his consent is irrelevant. The pawnbroker is the man who matters on those facts. Again, an owner can steal from a bona fide possessor. And third parties can also steal from these non-owners. Hence �owner’ is no more than a convenient shorthand. The full statement is clumsy. We ought to say �without the consent of the person whose interest is being infringed’. It is quite enough to say it once.

6.