The Intent

In the core case, that central image in which the thief carries away another's goods, the intent attributed to him is, permanently to deprive the victim of the goods. Or, one might say, to treat them as though he were their owner.

It was not. Gaius, who does not cleanly sever his comments on intent and act, says at G.3.195: �Theft is not committed only when someone removes a thing of another's with intent to have it for himself (intercipiendi causa rem alienam amovet) but quite generally when some­one contrectates a res aliena without the owner's consent.' He then gives examples. The depositee is a thief if he uses the thing. So also the borrower if he uses it for a purpose other than he said, as where he borrows a horse for one journey and rides him on another or into battle. In these cases there is an intention to return the res. But that does not prevent the liability for theft from attaching. In the terms of Paul's definition there is an intention to gain by the use.

Even an intent to make off with a res which belongs to another is not sufficient in itself to constitute animus furandi, the intention to steal. Take an extreme case. I stuff your cake into my shopping bag. I intend to eat it. But I think it is my cake. To support my assertion, there, sitting by the till after I have gone, is the one I paid for. The same story can happen with umbrellas. I am leaving the station with yours. Mine is still on the luggage rack in the train. I have mistaken yours for mine.

What is dishonest intent? It nearly always comes down to this: when you form the intent in relation to the res you know that your conduct will be considered wrongful unless you have the consent of a given person, usually the owner, and you nevertheless propose to proceed without that consent. Honesty is genuine belief that the necessary consent is forthcoming. Dishonesty is the absence of that belief. This is not a general definition. It is a guide to the qualification �dishonest’ applied to an intention to deal with a res. Thus, what Gaius says as he leads up to the statement in G.3.187 that dolus is essential is:

But it has been decided that, where people use borrowed things for purposes different from those for which they received them, they only commit furtum if they know that they are acting without the owner’s consent (invito domino) and that he, had he been told, would not have consented. But if they believe that he would have consented, the decision is that they are outside the scope of a charge offurtum. This is an excellent distinction. For without dolus malus theft is not committed.

If one had to sum up Gaius’s treatment of theftuous intent in the Institutes, it could be put in three points. Negatively, there is no need to find an intent to have the thing for good. Positively, there must be dishonesty. By way of explanation, dishonesty is the want of genuine belief in the owner’s consent. In nine out often, perhaps even ninety-nine out of a hundred, cases, that will be sufficient guidance.

What problems can arise in the hundredth case? In other words, what deficiencies can be shown up in Gaius’s three point analysis? Suppose I plan to tip your cargo of tea into the sea. Or to destroy a painting worth a fortune. Here I do intend that you shall be perman­ently deprived and I have no belief in your consent. But is this a theftuous intent? If it is, then many cases of intentional damage are going to count as theft. And that is especially true for a system in which the physical conduct deemed sufficient for theft is a good deal less than carrying away. Not only damage. Suppose I propose to give your slave a good shaking. Is that going to be theft? My intention is to mistreat your slave without your consent. Is that a plan for furtum usus?

The need to differentiate between furtum and other wrongs requires some refinement of the conception of theftuous intent. There is a great danger of overkill. Suppose that there must be a dishonest intent to have for oneself a thing or its enjoyment. That might exclude the cases just mentioned but it would also threaten to exclude cases which ought to be kept in. I plan to get your ring for my girlfriend. I could argue that that is not theftuous. Planning to give to another is different from having for oneself.

This accounts for the phrase lucri faciendi gratia in Paul's definition, and also for the hesitations about it which many scholars have expressed. Lucrum is the opposite of damnum, as �gain' is the opposite of �loss'. When the words �for the sake of making a gain from the thing itself, its use or its possession' are put in, cases of spiteful loss and other harm are removed from the scope offurtum. My intent to dump your tea in the sea is not theftuous. It is an intent to cause loss, damni dandi not lucri faciendi. Perhaps to wound your feelings too.

The worry about this refinement of animus furandi is whether it does not cause this. Does it knock out the case of taking to give to another? A takes a book from a shop without paying, to give B a present.

It is not easy to see how early or how steadfastly this differentiating refinement of theftuous intent was achieved. I give you my slave whom you suspect of crime. You are to interrogate him. You imme­diately hand him over to the magistrate to be killed as one caught red-handed. Pomponius records the opinion of Proculus, or possibly Sabinus, that this was theft �because he used another's thing knowing he did so without the owner's consent or that the owner, if he knew, would not consent'. That is D.12.4.15 (Pomponius, 22 On Sabinus). There is no insistence upon a redistributive as opposed to an extinctive intent. It is not completely clear from the text that Pomponius approved the earlier decision.

Someone who steals a book from a library may later, in revulsion from the daily reminder of his guilt, tear it up or throw it in the river. He may do it five minutes after getting away, suddenly coming to his senses. This is different from the case in which from the start he intends only destruction. He does commit furtum. His intent is theftuous when he does the act. Later his intent changes. He commits a separate delict by spoiling the book. That is damnum iniuria datum under ch. III of the lex Aquilia.

Malicious intent to inflict loss or pain without material gain to anyone is wicked. The point is that it has not quite the right shade of wickedness for theft. There are other cases which cause trouble for the three point analysis in Gaius. The defendant may try to say that although he knew that he was acting against the plaintiff's will yet his intent was such that it did not require the plaintiff's consent in order to be purified: irrespective of the plaintiff's view the plan was too honourable or humane to be characterised as dishonest.

I do not think there is any sign that the law regarded an unworldly motive as capable of negativing dolus malus. If you took my goods knowing that I did not consent and with the redistribution or re­allocative intent indicated by the liberal construction of lucri faciendi gratia, it would not help you to say that you took them for the poor and needy. In law Robin Hood was in the same case as A who took a book in a shop for B. On the other hand some unworldly motives would eliminate the redistributive intent. It was essential to the motives of the Boston tea party that the participants should pour away, not pocket the tea. Similarly, compassionately letting go your animal or slave, I manifest no intent either to have or to re-allocate your wealth. The texts on intercourse with ancillae are not at all easy. One possible view is that the intent which went with love or libido, if that was all there was to it, had nothing to do with wealth or material gain. Even if one knew her owner did not consent one nevertheless could not be said to intend a gain within any construction of lucri faciendi gratia. It would be different if the lover intended to keep the girl entirely to himself, hiding her away from her owner altogether. That, furtum rei, would be aimed at her entire economic value. Never mind that the motive for wanting it was love.

The shortest summary of this part goes thus: animus furandi did not suppose an intent permanently to deprive; subject to that, the earlier classics may have been content to think in terms of dishonesty without further refinement; difficult cases did, however, require some finer tuning to be done; that was achieved in the phrase lucri faciendi gratia, not without some danger that, construed in too narrow a spirit, it might cause more problems than it solved.

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