Taking and interfering

The early Roman conception of furtum as taking^{^[127]} seems to have survived until towards the end of the Republic.

For Sabinus it was sufficient that there had been an improper interference - adtrectatio'^{^[128]} - and later jurists refer commonly to contrectatio, which seems to mean the same thing.^{^[129]} The shift had probably begun to occur before the time of Sabinus: the fact that jurists of the generation or so before him dealt with problems of touching suggests that the move away from the older conception had already begun by the middle of the first century BC.^{^[130]}There may have been a number of reasons for this move. In part it may have been because of a desire to impose liability on unsuccessful thieves, which could not be achieved directly in a system whose criminal law was still limited and contained no theory of attempts.^{^[131]} In part it might have been because of the need to deal with the situation where furtum was committed by a depositee or similar person already in possession of another’s property.^{^[132]} More generally there may have been difficulties with the whole idea of furtum manifestum·, could a person caught in the act of carrying away goods and prevented from so doing be treated as a thief at all? Similarly, the provision of the Twelve Tables excusing the killing of a nocturnal thief would have looked rather hollow if it could be argued that the person killed could not have been a thief unless he had succeeded in carrying off the goods. A single feature lies behind each of these possible reasons: the later republican jurists’ increasing concern with accuracy of definition.¹⁷

The classical Roman lawyers, then, adopted a definition offurtum as a contrectatio rei fraudulosa, adding an additional mental element that it must have been lucri faciendi gratia)* Contrectatio itself, with its overtones of improper touching,¹⁹ was treated as meaning any wrongful handling of (or interference with) a thing belonging to another.

Yet this definition did not displace the basic conception offurtum as involving the actual removal of property; the most common word used to describe the act of stealing is subripere, with contrectare normally being used to designate the interference with goods which have been stolen already²⁰ or simply to underline the minimal condition for liability.²¹ The focus on removal remained easily visible through the word’s etymology - the derivation from ferre and auferre is clearly the most plausible of those suggested by Paul²² - and Aulus Gellius hints at the common belief of his time that furtum requires a carrying off.²³ The definition of furtum as contrectatio was therefore established as something different from its underlying conception, and many of the problems of the law can be seen as stemming from the tension set up between these two levels.

The same development and the same tension are visible in modem English law. The early English law of larceny, like the Roman, required an asportation.²⁴ Even by the seventeenth century it had been established that, although asportation required that the goods be moved, they did not

¹⁷Stein, Regulae luris, 26-48; and, with particular reference to the development of the law of theft, ‘School Attitudes in the Law of Delicts’, in Studi in onore di Arnaldo Biscardi, vol. II (Milan, 1982), 281-7.

¹⁸D.47.2.1.3 (Paul, 39 ad edictum). In his Institutes (4.1.1) Justinian adopts the same definition, though omitting lucri faciendi gratia.

¹⁹D. Pugsley, ‘Contrectatio’ (1980) 15 Irish Jurist 341 (reprinted in Americans are Aliens (Exeter, 1989), 89).

²⁰D.47.2.17.1 (Ulpian, 39 ad Sabinum); D.47.2.52.27 (Ulpian, 37 ad edictum); D.47.2.61 (Africanus, 7 Quaestionum); D.47.2.67.1 (Paul, 7 ad Plautium).

²¹D.47.2.52.19 (Ulpian, 37 ad edictum); D.47.2.66 (Ulpian, 1 ad edictum aedilium curulium); DAI.2.22 pr., 1 (Paul, 9 ad Sabinum).

Similar in force are D.47.2.20.1 (Paul, 9 ad Sabinum) and D.47.2.56 (Ulpian, 3 Disputationum), in both of which the word is used explicitly by way of contrast to a verb connoting carrying off.

²²D.47.2.1 pr. (Paul, 39 ad edictum).

²³Nodes Atticae 11.18.13. Cf. G.3.195: ‘Furtum autem fit non solum cum quis intercipiendi causa rem alienam amovet, sed generaliter cum quis rem alienam invito domino contrectat.’ That Gaius thinks this worth saying strongly suggests that he recognised the need to disabuse his audience of the belief. See Thomas (1962) 13 lura 87 n. 51.

²⁴J. H. Baker, Introduction to English Legal History (3rd edn, London, 1990), 605-6. have to be removed very far; in Simson²⁵ it was held that taking goods from a chest and putting them on the floor nearby was sufficient to ground a conviction. Nevertheless, this requirement that there be some movement of the thing survived and was put on a statutory basis in the Larceny Act of 1916;²⁶ as one commentator described the law, ‘The test seems to be: Has every atom left the place in which that particular atom was before?’²⁷The shift towards a yet more broad definition of the physical act required to constitute theft occurred with the enactment of the Theft Act 1968, which replaced the old requirement of a ‘taking and carrying away’ with the less clear term ‘appropriation’,²⁸ itself further defined as ‘Any assumption by a person of the rights of an owner’.²⁹ While it was probably not the intention seriously to loosen the actus reus of theft,³⁰ commentators immediately recognised that ‘assuming the rights of an owner’ could occur some time before there had been any taking and carrying away, so that cases which would not have been classified as larceny would fall within the definition of theft.³¹ One, with considerable foresight, went so far as to suggest that ‘assuming the rights of an owner’ was such a broad conception that any case which would have constituted attempted larceny would now have to be classified as the full offence of theft.³² This very broad interpretation was accepted by the House of Lords in the leading case of Morris ²² an ‘appropriation’ could be constituted by any minimal interference with another’s property. Nevertheless the underlying idea of carrying off remains central to the popular conception of theft,³⁴ and continues to exert a considerable influence over the operation of the law.

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Source: Lewis A.D.E., Ibbetson D.J.. The Roman Law Tradition. Cambridge University Press,1994. — 234 p.. 1994

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Taking and interfering

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