Furtum (T!important;text-transform:uppercase'>heft in a Wide Sense)

Furtum was a delict of a much wider scope than theft is nowadays. It included theft but also unauthorized intentional use of another’s thing, attempted theft, and help and assistance with furtum.

The origins offurtum are obscure. The Romans gave an etymolo­gical explanation of the word, as derived from (au)ferre (‘to carry away’); but modern linguistics conclude that this is impossible. However, it does tell us what was typical offurtum for Romans of about AD 300. Asportation (carrying away) was certainly a criterion later on, but so was contrectatio (‘handling’, ‘meddling’). So the ambit offurtum through the ages is a point of debate.

This delict already appears in the XII Tables. At this time several punishments are mentioned. According to Gaius, the XII Tables stated that in the case of the fur manifestos (a culprit caught red-handed), the magistrate would scourge him if he was a free man and assign him to the person against whom he had committedfurtum; if he was a slave, he would be put to death. As the slave Sceparnio says in Plautus’ play,

I’ll just put this urn down in the middle of the road.

Gellius says that a thief who was under age (impubes) would, at the discretion of the praetor, be scourged; then the damage caused had to be made good. So the jurists of the Republic discussed whether the free adult was assigned as a slave or assigned in debt slavery to pay off the debt. But the XII Tables (tables 8.12, 8.13) also said that, iffurtum was commit­ted at night, the thief might be killed; he could be killed if he was caught during the day only if he resisted arrest.¹⁰ The punishment of scourging and full loss of status or life (poena capitalis) is strongly reminiscent both of expiation (XII Tables 8.9, 8.10) and treason. Perhaps furtum manifestum originally meant breaking into a house in order to steal.¹¹ If so, it was soon secularized and extended. In the second century AD and later the victim might only kill the thief, at night or day, if it was impossible to hand him over to the authorities. The victim could also press for a public prosecu- tion,¹² but this did not preclude him from privately suing the thief. As Birks observed, for furtum manifestum (when the culprit was caught red-handed), there need not be asportation: merely touching sufficed.1³ Later praetorian edicts were issued which imposed for this delict a fine of four times the value of the thing stolen. The XII Tables (table 8.15) had also provided a fine of double for furtum non manifestum (non-manifest theft), and a triple fine forfurtum conceptum andfurtum oblatum (see below, 249). These were also included in later praetorian edicts.

Apart from this, the victim, who remained owner, could vindicate his property.

Commentaries from the first centuries AD discuss what manifest furtum is. The general opinion was that if the thief was caught on the spot, or as long as he was seen with the stolen thing on his way to his lair, it was manifest. After that it became non-manifest furtum, for which the fine was double the value. If the stolen thing was found at somebody’s house after a formal search, a threefold fine was imposed on the owner of the house (furtum conceptum). If the thing had been deposited with him, he in his turn could sue and claim the threefold fine from the depositor (furtum oblatum). There was also a threefold fine for refusal to let one’s house be searched (furtum prohibitum).

The rules may seem straightforward, but the practice was more complicated. The act of furtum had to be done against the will of the owner. If the thief honestly thought that the owner had consented, there was no furtum. Conversely, if the owner did not mind, the thief was not guilty, even if he had acted in the belief that the owner did not consent. Moreover, if the thief believed he was taking his own property, although it was in fact another’s, this was not furtum: the intention (dolus, animus furandi) to steal was necessary: ‘If a person deposited a purse containing twenty coins and received another purse, which he knew contained thirty, the giver being in error, it is settled that he is liable in theft only for ten, if he thought that his twenty were included in the purse.’¹⁵

The value of the object could also present problems. The true value was taken, not what the thief thought it was.

One who takes away wax tablets or cautiones is liable in theft not only for their intrinsic value but for what they represent, which means the amount of the sum contained in the docu­ment, if, that is, their interest is that great; thus if a chirograph records a sum of ten gold pieces, we say that that is the sum to be doubled’.¹⁶

What if the value had increased or decreased after the theft? Could the estimate of value given at joinder of issue, the moment in litigation at which the parameters of the legal case were set, be adjusted? ‘Again, if the thing had deteriorated, assessment was to be directed to the time of the actual theft. But if it had become more valuable, it is twofold the sub­sequent higher value which should be the basis of assessment, because the better view is that the theft still continues.’¹⁷ If the decoration of a platter made the platter more valuable, that value was to be taken, not the value of the material of the platter: ‘A person who scrapes [the decoration] off a platter, steals the whole of it and is liable in the action for theft for the owner’s full interest.’¹

A further problem arose if a thief had taken part of a whole — for example, a bushel from a heap of grain. Was the estimate to be of the bushel or of the heap?

It is a common question whether a person who takes a pint from a heap of corn steals the whole heap or only what he removes. Ofilius thinks that he steals the whole heap; similarly, Trebatius says that one who touches the ear of a person touches the whole person. And in the same way, one who opens a wine jar and abstracts a small quantity of wine there­from is deemed a thief not only of what he takes but of the whole contents. But the truth is that these people are liable in the action for theft only for what they took.

Ofilius and Trebatius were jurists of the 1st century BC and for them contrectatio (the touching or handling of something that belonged to another) alone sufficed for furtum: hence one merely had to decide what was touched, and that was the heap or the full jar. Contrary to that was Ulpian’s solution, which applied the idea of asportation: furtum was for him primarily a taking away (which necessarily included a touching). That view was dominant in the later second century AD, and consequently the fine was based on the value of what was taken away.

Furtum was a broad concept. A creditor-pledgee who did not return the pledge after the debt was paid committed furtum if this was done intentionally;²⁰ knowingly to accept an undue payment was furtum;²¹ so too was retention of lost property for the purpose of gain (lucri faciendi causa).²² Along the same lines is the unauthorized use of another’s property: ‘A man who takes draught animals which he has borrowed further than he should or who uses another’s property without the owner’s consent is guilty of theft.’²³ lang=EN-US>There is no asportation here: it is a case of what we now call furtum usus. In these cases the contrectatio criterion is clearly applied and means unauthorized handling. What we now call furtum possessionis is similar: ‘An owner who takes away the thing in which another has a usufruct will be liable for theft to the usufructuary.’²⁴ A usufructuary had a right to possess the property for the time of the usufruct, while the owner retained a property right. Theoretically he could not steal his own goods, but what he did here was to take away their possession. Yet if he had lent something, he could take it back without committing furtum, unless the borrower had an interest in it — for example, for compensation for his expenses. In short, there had to be a right to possess, as for the creditor­pledgee or the tenant.²⁵

But it could be more complicated:

If, again, a person opens or breaks into something which is too heavy to be removed, an action for theft will lie against him not for the whole contents but only for what he removes, because he could not remove the whole thing.

We see how contrectatio comes to be more specifically defined, with asportation as the crucial element offurtum. But was it still sufficient for attempted theft? If it was done with theft in mind, was it furtum? Attempt as such was not punished: ‘A person who enters an enclosure for the purpose of theft is not yet a thief even though he entered for the purpose of stealing. What then? By what action will he be liable? It could be the action for injury [iniuria] or he could be (criminally) charged with violence, if he made a forcible entry’.²⁷ On the other hand, the require­ment of asportation was widened to what could have been taken away (contrectatio remaining a condition). In this way it could, as here, include a form of attempt. Handling or touching combined with the possibility of taking away the whole sufficed for a man to be guilty of furtum, and so the fine was based on the whole.

Help and assistance with furtum (ope consiliove) were treated as furtum non manifestum.²⁸ But what was help? There is the case of advising a slave to flee. A slave who fled was considered to have stolen himself, which made him a resfurtiva and thus incapable of being usucapted. When did advice amount to help?

One who persuades a slave to run away is not a thief. For one who gives another evil counsel of this sort is no more liable for theft than one who advises another to throw himself from a height or to kill himself; such conduct does not give rise to the action for theft. But if one person persuades the slave to run away, so that he may be taken by a third person, the persuader will be liable for theft, because the theft was done with his help and advice [ope consilio].²⁹

But the next case could be tricky:

Because of the noxal liability of owners for their slaves (see below, 265-7), each owner here might sue the other.

And then there are cases which remain for us enigmatic, like: ‘Someone lent you heavier weights when you were buying by weight; Mela writes that he will be liable to the vendor for theft as also will you if you are aware of the facts; for you do not acquire the goods with the owner’s consent when he is in error over the weight.’³¹ That the buyer was guilty offurtum if he knew is no surprise and the lender would be guilty of assistance, but is Mela’s view that it is furtum merely to provide false weights? Mela lived at the very beginning of the first century AD, when both contrectatio and asportation were used as criteria. The lender lent - knowingly, we assume - his own weights, which the innocent seller used. The seller suffered a loss, but the lender was not enriched. Is this not rather a case of fraud?

Another case is this: ‘If, when my tame peacock escaped from my house, you chased it so that it disappeared, I could have the action for theft against you if someone else should take it.’³² How can this have been furtum? The view of J. A. C. Thomas might provide the explan­ation here. He suggested considering furtum from the point of view of the victim and defining it as causing deprivation to him in a wide sense.³³ That would bring all cases neatly under one denominator. One may go a step further and refine this deprivation as a loss of control - that is, a loss of potestas or dominium. The peacock has gone away and apparently will not return, having lost its will to return. By that means its master has lost control. That suggestion also fits with furtum of children and of a wife held in power (in manu): furtum would be a challenge to this 34

power.

Some authors (such as Watson,³⁵ Thomas, Nicholas,³⁶ Albanese,³⁷ and Zimmermann) see in cases such as that of the peacock the indication that furtum, from originally involving mere asportation, had expanded to a very wide delict in the last century of the Republic, namely any patri­monial loss caused by the wrongful intent (dolus) of another and which was not covered by the lex Aquilia. A reaction grew up against the width offurtum, and in various ways its scope was reduced - for example, by Sabinus’ criterion that it must be done in order to gain. It was in this context that contrectatio was devised, in order to cover attempt. This view is understandable if one reads (wrongly, according to Birks³⁸) ferre (taking) in furtum. But it still does not explain the penalty in the XII Tables for furtum manifestum by night where nothing needed to be asported. Thomas suggested that contrectatio included every way in which an owner was deprived of his property (parallel to the introduction of the lex Aquilia which covered loss through damage);³⁹ Watson suggested that there had to be a physical handling.⁴⁰ On the other hand, Birks and Jolowicz maintained that contrectatio was the basic criterion.⁴¹ Theophilus, a law professor teaching in AD 533-534, explained contrectatio as ‘to behave like an owner in respect of a thing and to do to it things which are appropriate to an owner’. This is the inverse of taking away or opposing the power of the owner; and only this view explains why the thief is not culpable if he thinks he acts with the approval of the owner, or if the owner does not object; hence, contrectatio has to be the original element. Theophilus’ definition also fits Thomas’s view as rephrased. The peacock was lost: this implied a loss for its owner. He was indeed deprived of it, but it was also no longer under control of its owner (as expressed in its now lost will to return). The chaser behaved as if he had the right to strip the peacock from its intention to return (animus revertendi).

In the Decemviral period, theft of use may have been more frequent than theft by asportation. As noted, the word furtum cannot be connected with asportation; we cannot assume that this was its original meaning. Contrectatio will have been the original element: interference with the power of the paterfamilias, and it would have included asportation. There is the story of an embassy which was invited on several nights to dine with a Roman family and every time saw the same silver plates. It appeared that only one family in Rome owned silver plates. If true, and it is certain that in early times even the leading families were living modestly, this situation had certainly been transformed by the first century BC, when Rome had conquered the world and riches had been amassed. Theft by asportation will have been the common form offurtum from then on, reducing mere contrectatio in that new context to the form offurtum usus and a form of attempt. A parallel shift in the learned discussion of furtum will have occurred. We can see this in the famous definition of Paul: ‘Theft is a fraudulent interference [contrectatio] with a thing with a view to gain, whether of the thing itself or of the use or possession of it. This natural law proscribes.’⁴² This also explains the increased interest in defining attempt, and help and advice. A further trend is that of letting the autho­rities deal with theft: the victim was supposed to hand over a thief, caught in the act, and let the authorities investigate and punish him. However, already by the middle of the second century AD handing over a thief to the authorities implied that one preferred public handling of the case and would be satisfied with its simple value as compensation.⁴³