The history of the modern concept of theft

Apart from endorsing duplum and quadruplum as two suitable forms of penalty, the Constitutio Criminalis Carolina dealt with theft in the tradition of Germanic law. The severity of the punishment must be mentioned in this context,^[4866] as well as the distinction between petty theft and furtum magnum,^[4867] ^{^[4868] and (possibly) also the further distinction between "secret" and "public" (manifest and non-manifest)¹⁸⁵ theft.}

Most interesting, however, from a purely dogmatic point of view was the fact that "theft" (though undefined) was much more narrowly conceived than the Roman furtum; in particular, it did not cover cases of embezzlement.^[4869] Again, this was in line with the Germanic concept of the crime, which had always emphasized the element of the actual removal of an object from another person's custody.^[4870] It is somewhat surprising to see how slowly legal doctrine followed suit.^[4871] ^{^[4872] ^[4873] Even after the Carolina had firmly entrenched the notion of theft as a crime, the writers of the ius commune—private-law oriented as they were— continued to base their discussion on Paulus' definition and on the case law of the Digest and thus to equate, or rather confuse, the Roman delict of furtum with the Germanic crime of theft.^18y Only in the early 17th century¹⁹⁰ did it dawn upon them that the wide Roman definition might not provide an entirely satisfactory framework for the stiff sanctions of contemporary criminal law. Decapitation is hardly the appropriate penalty for a man who takes a borrowed horse beyond the town where he was meant to take it!^[4874] The decisive step, as far as German jurisprudence was concerned, was taken by the Saxonian professor and practitioner, Benedict Carpzov.^[4875] Though still proceeding from the Pauline notion of contrectatio, he advocated a distinction between two different types of "handling".
The poena ordinaria furti was to be confined to cases involving contrectatio vera, and contrectatio vera, in turn, was characterized by an ablatio rei alienae. Where, on the other hand, one was merely dealing with a contrectatio ficta (that is, a translatio ad alium usum contra voluntatem domini), a milder form of punishment was called for. This doctrine soon gained widespread acceptance and provided the starting point for the development of a differentiated system of more precisely defined forms of criminal behaviour that took place over the next 250 years. Theft was eventually defined along the lines of the Germanic crime^[4876] ^{^[4877] and so became entirely detached from the Roman notion of furtum. Within the area thus vacated, crimes such as embezzlement, fraud and receiving stolen property established themselves.¹⁴⁴ Furtum usus and furtum possessionis as such^[4878] were eventually taken not to require any criminal sanction at all; they were regarded as a breach of (private) trust rather than an infringement of the public order. 3.}}

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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 history of the modern concept of theft

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