1. The demise of the actio furti

Very little of the Roman law relating to furtum has made its way into our modern legal systems.^[4847] Theft is today a crime, and its history is part and parcel of the history of criminal law.

Even in classical Roman law the availability of private penal remedies was already a matter more of theoretical than of any practical significance, for thieves, as Thomas^[4848] aptly remarks, are not generally well endowed with this world's goods; and to expect them to pay two-, three- or fourfold the value of the object stolen (apart from the simple value or quod interest on account of one of the actiones ad rem persequendum) must often have been rather illusory.^[4849] With the rise of the cognitio extraordinaria^[4850] the emphasis, as far as the suppression of theft was concerned, shifted decisively in favour of criminal proceedings.^[4851] In a way, therefore, the concluding fragment 93 is historically the most significant of all the texts collected in title D. 47, 2, De furtis; over all our discussions about private remedies and their various incidents we must not forget, warns Ulpian, that by now "furti plerumque criminaliter agi et eum qui agit in crimen subscribere".^[4852] According to Julian (who wrote nearly a century earlier), the institution of criminal proceedings even had the effect of precluding the injured party from bringing the actio furti and thus exposing the thief to the danger of being penalized more than once.^[4853] Justinian preserved the private penal actions,^[4854] and since they featured so prominently in both his Digest and the Institutes, they were bound to become part of the Romancanon ius commune that was received in Germany.^[4855] But neither Justinian nor any of the post-reception jurists, mapping out and analysing the Roman law of furtum, ^[4856] could halt the ascendancy of criminal penalties for theft. By the end of the Middle Ages, the suppression of crime and imposition of punishment had become essential functions of the State authorities,^[4857] ^{^[4858] and in the famous Constitutio Criminalis Carolina of 1532 theft was therefore no longer regarded as a private wrong but as a public crime.
Duplum and quadruplum were still preserved as penalties (though only for two different forms of petty theft),¹⁷⁵ but it was no longer the private actio furti by means of which they were enforceable. Whether the latter remedy was still available as an alternative way of proceeding against the thief remained in dispute for some time. Lauterbach and Stryk were among the last influential writers who advocated the survival of the Roman actio furti, the one, however, conceding that it was "hodie in quibusdam locis abrogata, in alhs infrequens",^[4859] ⁶ the other suggesting ("Illud interim juris hodierni esse puto") that the duplum was no longer "mera poena" but had to be taken as embracing "ipsam rei restitutionem".^[4860] Among the "quidam loci" in which the remedy was abrogated were, most notably, Belgium^[4861] and Holland.^[4862] In the course of the 18th century this view gained ground in Germany too,^[4863] and it was widely accepted even by the 19th-century pandectists.^[4864] If the actio furti was retained by the one or other textbook writer, it was in a purely reipersecutory function and in order to compensate for certain (alleged) weaknesses inherent in the other private remedies.^[4865] 2.}

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

1. The demise of the actio furti

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