Theft

We consider first theft. We are concerned here not with criminal liability for theft, but rather with how thieves were dealt with by private law. Although this is one of the four delicts in the institutional account,^[2577] we may doubt how important it was in practice.

(1) The Definition of Theft

Theft can be defined simply, according to Paul, as ‘the fraudulent handling of a thing with a view to gain, whether by the thing itself or by its use or possession'.^[2578] Looking at the matter in more detail, from the texts that have come down to us we can identify a number of specific requirements. Theft involves:

• the handling;

• of moveable property;

• belonging to another;

• dishonestly and with an intention to gain;

• contrary to the owner’s will.

To take these requirements in order, the first thing we see is that theft does not require actual removal of the property. Although the position was probably oth­erwise in early law,^[2579] in classical law theft was committed (assuming all of the other requirements were present) by handling the goods. This included autho­rised handling done in an unauthorised manner, as where a pledgee or depositee used the thing pledged or deposited, or a borrower used the thing for some other purpose than that for which it had been lent.^[2580]

If theft is committed by handling, what if the thief removed only part of the property, as for example where part of a heap of corn or a jar of wine is taken? Is the whole heap or the whole of the jar stolen, or only what is taken? The texts are difficult to interpret, but the answer is probably that damages were based on the value of what was actually taken, not of the whole.^[2581]

The second requirement was that thing stolen be moveable.

Third, property could only be stolen if it belonged to someone. The idea of belonging had an expanded meaning here: a person alieni iuris^[2584] could be stolen.^[2585] The requirement that the thing belong to someone meant that ownerless prop­erty could not be stolen.^[2586]

Fourth, the taking had to be dishonest and with a view to gain.^[2587] A person who took was not a thief if this was done in the honest but mistaken belief that the owner would consent. Likewise, someone who drove off someone’s cattle or knocked coins from someone’s hand so that they were lost was not a thief, as this was not done with a view to gain.^[2588]

Finally, the taking was only theft if done without the owner's consent. This was the case even if the taker was unaware that the owner consented, and the taker intended to steal. If the owner in fact consented, the taking was nonetheless not theft.^[2589]

As might be expected from the penal nature of this delict, repentance of the thief and return of the thing did not excuse the thief of liability.^[2590]

(2) The Parties

(a) The Pursuer

Obviously, the pursuer in an action for theft would normally be the owner of the property. This would not always be the case, however. Anyone with ‘an interest in the safety of the thing' could bring the action; conversely, an owner with no such interest had no remedy here.^[2591] In effect, what this means is that, where my property is stolen while it is in your hands, I have no remedy against the thief if I am adequately protected by an action against you. If, though, you are financially damaged by the theft, you can sue the thief. For example, suppose you are a laun­dryman, washing my clothes. My clothes are stolen. I can sue you on the basis of our contract, so I cannot pursue the thief unless you are insolvent (and so unable to pay me yourself).

The interest in the safety of the property might be divided. An example would be property held on usufruct,^[2597] where both the owner and the usufructuary had an interest in the safety of the property. Both could therefore have the action for theft, based on their respective interests.^[2598]

(b) The Defender

In addition to the thief being personally liable for the theft, anyone by whose advice and assistance the theft was committed was also liable as a thief.^[2599] Examples given by the texts include: knocking coins from the victim's hand so that another can take them; obstructing the victim so that another can steal; driving off the victim's animals so that another can take them; placing a ladder for another to climb in and steal; and lending tools for breaking into a building to steal. It was not enough merely to encourage the theft if no actual advice or assistance was given.

(3) Remedies for Theft

(a) Manifest andNon-Manfest Theft

The victim of the theft obtained his or her remedy by bringing the actio furti, the action for theft. A distinction was made between two types of theft, manifest and non-manifest. For manifest theft, damages of four times the value of the theft were due; for non-manifest theft, double damages were due.^[2600] The value of the theft was probably based on its value to the pursuer rather than the value of the prop­erty itself.^[2601] For example, if something was stolen that the pursuer had promised to give to another person on pain of payment of a penalty, the amount of that penalty would be included in the valuation of the theft.^[2602] The action for theft is described byJustinian as ‘entirely penal',^[2603] meaning that the pursuer is not barred from recovering the property itself in addition to the payment of damages.

As the damages payable depended on whether the theft was manifest or non­manifest, we need now to consider this distinction. The accepted definition of manifest theft was this:^[2604] a person committed manifest theft if he was ‘seen or caught with the stolen thing, whether in public or in private, whether by the owner or by another, before he gets to the place where he intended to put it'.^[2605] After the thief had got the stolen item to its intended hiding place, the theft was no longer manifest, even if the thief was subsequently seen with the item.

(b) Procedures Supplementary to the Action for Theft

Certain supplementary procedures existed.^[2606] The Twelve Tables made provision for a formal search of premises before witnesses. If the stolen goods were found in someone's premises during that search, that person was liable forfurtum concep­tum, with liability of three times the value of the property, even if that person was not in fact the thief.^[2607] If that person was innocent of the theft, he or she had an action for furtum oblatum, again for treble value, against the person who planted the goods with, or passed the goods off to, him or her. The praetor introduced actions for preventing a search (actio prohibit! furti), with fourfold liability, and for refusing to hand over a stolen thing found during a search (actio furti non exhibiti), to make the search provisions more effective.^[2608]

Gaius describes the search procedures:

An action for preventing a search, for quadruple damages, has been introduced by the praetor’s Edict. The Twelve Tables imposed no penalty for this. It simply required that anyone wanting to make a search had to do so naked, wearing a licium and carrying a dish. If he finds anything, the law orders that this is manifest theft. It has been asked what a licium is. It is probably some kind of cloth for cover­ing the necessary parts.^[2609] The whole thing is ridiculous.

The wearing of a loincloth was presumably to avoid the searcher smuggling anything in in order to plant it, or perhaps pocketing anything while there. An alternative interpretation of the role of the dish is that it had eyeholes bored into it, and it was held in front of the searcher’s face to save embarrassment (given the searcher’s state of comparative undress) if any women were present in the house.^[2611] Still, there would seem to be more straightforward ways of covering the searcher’s face, so this explanation may not convince. A still further possibility that has been suggested is that the dish was used to carry an offering to the house­hold gods.^[2612] That too perhaps seems doubtful. If that was the explanation, why would the dish be mentioned but not the offering? Certainty is impossible, and it is not implausible that Gaius himself has misunderstood the procedure: it is clear from what he says that the procedure was long obsolete in his day.

(c) Other Remedies

An owner whose goods were stolen was not limited to the action for theft. There might also be other delictual remedies, for example. Most importantly, because ownership could not normally be lost against the owner’s will, an owner of goods was entitled to recover them from anyone who held them without right, even if that holder was entirely innocent of any wrongdoing.^[2613] As an alterna­tive, the form of action known as the condictio,^[2614] in this case as the condictio furtiva, could be used against the thief.^[2615] This was useful where the property had been destroyed or its location was unknown, as it simply imposed liability for the value of the property.

C.