1. The definition of D. 47, 2,1, 3

The translation usually given for furtum is theft. Theft is recognized as a criminal offence all over the world, be it on the basis of the common law,^[4696] be it on a statutory basis^[4697] or as part and parcel of a comprehensive penal code.^[4698] But its scope differs considerably from that of its Roman ancestor, the "private delict" furtum.

The traditional civilian concept of furtum was much broader. "Furtum crimen omnium generalissimum", wrote a famous 16th- century treatise writer,^[4703] and he added: "... ubique gentium tarn est familiare ut vix ullum... reperiatur aut frequentius aut notius."^[4704] He then proceeded to cite what must have been the most celebrated definition in the entire law of liability for wrongful acts. Taken from D. 47, 2, 1, 3, it was repeated by countless generations oflawyers^[4705] and determined the scope of application of the wrong called "furtum" until well into the 18th century: "Furtum est contractatio rei fraudulosa^[4706] lucri faciendi gratia vel ipsius rei vel etiam usus eius possessionisve"— theft is the dishonest handling of a thing in order to make gain either out of the thing itself or else out of the use or possession thereof. This definition is attributed to the late classical jurist Paulus; and though it may ultimately have been put together only by post-classical compilers,^[4707] there is no reason to suspect that it did not correctly reflect the range of theftuous conduct at around the turn of the 2nd to the 3rd century A.D. Of course, it embraced every form of asportation that would be covered by the modern German notion of theft. It did, however, go beyond the latter in at least four important respects.

2.