Theft (furtum)

Furtum (according to Romans, from ferro, to carry away) was a delict against property, which appeared as early as the Twelve Tables (VIII 12-17). The jurist Paul defined furtum as the “fraudulent interference (contrectatio) with a thing, whether with the thing itself or the use or possession of it, with a view to profit” (D.

Only movable things and persons in power could be objects of furtum (Gaius 3.199). Furthermore, a stolen thing could not be a res nullius or res extra commercium. To steal divine things was a sacrilegium; to steal or mis­appropriate public things was a crime of peculatus, subject to prosecution in public criminal proceedings. Furtum required that someone actually owned the thing stolen (res furtiva), but that owner did not have to be the victim: for example, a thief could steal a book that someone had borrowed, but the book had to be actually owned by someone to be considered stolen. The stolen

thing could not be acquired by usucaption as long as it had not yet returned to the possession of its owner.

Within furtum a basic distinction was made between cases where the thief was caught in the act (furtum manifestum) and cases where he was caught later (nec manifestum) (Gaius 3.183). The distinction, which appears in the Twelve Tables (VIII.14), was still preserved in Justinian’s law as an expression of classicism. The question of flagrancy was a matter of discussion among Roman jurists (Gaius 3.184). For some, manifest theft had to be detected at the very moment it was being committed. For others, however, it was enough if the thief was detected in the place where the theft had occurred, e.g., if the thief was still in the vineyard where grapes had been stolen.

This discussion was not simply theoretical, because the penalty for manifest theft was capital punishment. According to the Twelve Tables (VIII, 12-13), if the manifest thief was caught stealing by night or tried to defend himself with arms, he could lawfully be killed. The person who suffered the theft had to call neighbors as witnesses. In all other cases of manifest theft, if the thief was a free man he was assigned by the magistrate to the person from whom he had stolen. If the thief was a slave, he was put to death. In the later Repub­lican period, these penalties for manifest theft were replaced with payment of four times the value of the property stolen. For nonmanifest theft, however, the penalty of double the value of the stolen item was imposed by the Twelve Tables (VIII.18b) and maintained by the praetor (Gaius 3.190).

Gaius (3.186-88) mentioned some special cases. If a stolen thing was found at someone’s house after a formal inspection with witnesses, a threefold pen­alty was imposed on the owner of the house (furtum conceptum). If the owner of the house was not the actual thief, he could bring an action against the person who had deposited the stolen thing, even if the latter was also not the thief. The same penalty was imposed on the homeowner who refused to let his house be searched (furtum prohibitum). In general, recipients of stolen things were liable for nonmanifest theft.

In the classical period, the delict of furtum included not only ordinary stealing and embezzlement but also selling something belonging to another; unauthor­ized intentional use (furtum usus) of another’s property that was entrusted but used in an inappropriate manner (e.g., if the depositary used the deposited thing); collecting money from another’s debtor as a payment; and physical help (e.g., holding a ladder) and advice and collaboration in theft (e.g., a suggestion on the way to execute the theft [ope consiliove]).

Anyone with some legitimate interest in the stolen thing could bring action for manifest or nonmanifest theft (actio furti manifesti or actio furti nec

The law of obligations: delicts 209 manifesti), even if he was not the owner (Gaius 3.203). If a thief who perpe­trated a manifest theft was assisted by an accomplice, the action for manifest theft lay against the thief, and the action for nonmanifest theft against the accomplice. In applying the principle of accumulation, if the value of the stolen thing was one hundred sesterces, the person from whom the thing was stolen would obtain six hundred sesterces altogether: four hundred as a penalty for manifest theft, and one hundred each from the thief and the accomplice. The action for theft was a purely penal action that expired with the death of the thief. In addition to this action, the owner of the stolen thing could bring a reipersecutory action for the recovery of the thing or its value.