The condictio ex causa furtiva

With the demise of the actio furti private law was left with the task of protecting the interest "ad rem persequendam" of the injured individual by granting either restoration or compensation.

The rei vindicatio and (where appropriate) contractual actions remained, of course, available for that purpose. But these were remedies of a general nature, the availability of which did not depend on whether or not a delict of theft (however defined) had been committed. The concept of furtum therefore retained its significance only with regard to the condictio ex causa furtiva; and the ambit of this remedy continued, indeed, to be described in terms of Paulus' definition right until the end of the 19th century.^[4879] ^{^[4880] But the whole discussion had become a typical example of pandectist textbook jurisprudence. Hovering forever uneasily somewhere between the fields of delict and unjustified enrichment,¹⁴⁷ the condictio ex causa furtiva was about to be swallowed by both the usus modernus legis Aquiliae and the generalized enrichment action. In the opinion of the fathers of the BGB, at any rate, it had lost its practical significance and was therefore denied entry into the code,^[4881] As a result, theft has ceased to be a specific institution of private law, and all questions as to its proper scope of application have become a matter of purely academic interest. A person whose property is unlawfully interfered with enjoys comprehensive protection, both under § 823 I BGB^[4882] (compensation for any damage arising) and under § 812 I I^[4883] (restoration of unjustified enrichment arising as a result of interference). IV.}

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Source: Zimmermann R.. The Law of Obligations. Roman Foundations of the Civilian Tradition. Juta & Co, Ltd,1992. — 1241 p.. 1992

The condictio ex causa furtiva

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