THEFT (FURTUM) AND ROBBERY (RAPINA)

We are concerned here with theft and robbery as matters of private law rather than of criminal law. Theft is defined by Justinian as “the handling of a thing with fraudulent intention” (J.4.1.1), “thing” in this context meaning moveable property.

In early law, it would appear that there was a requirement that the goods were actually carried off. However, in the developed law, as we see from Justinian’s definition, all that was required in terms of the physical element was “handling” of the goods. This meant that removal was not required, although of course removal would make the intention to commit theft easier to prove. Matters of proof aside, though, the physical requirements for theft were satisfied wherever there was handling of goods by a person without consent. This included the case where a person, with custody of goods with the consent of the owner, made unauthorised use. Thus, a depositee or a creditor holding goods on pledge committed theft if he used the goods. A borrower under a contract of commodatum (see Chapter 7) committed theft if he used the thing borrowed for a purpose other than that for which it was lent. This would not be the case with a borrower under a contract of mutuum, however, as such a borrower became the owner of the goods.

One could be liable for theft without actual handling of the goods if one assisted another in committing a theft. Thus, where A knocks coins from B’s hand so that C can steal them, or where A gives B a ladder to break into C’s house, A would be jointly liable with the actual thief.

The handling of the goods constituted theft only if it was done with a fraudulent intention. In the case of theft by handling, it was necessary to know that the owner did not or would not consent to the use being exercised. The owner himself could be guilty of theft if the goods were in the custody of someone entitled to retain the property. An example of this would be a debtor taking property held by a creditor under pledge. In such a case, the creditor could competently sue the debtor for theft, even though the debtor was the owner.

There were also some other occasions when a non-owner could com­petently sue for theft. Where the property was held by anyone with a financial interest in the property, that person had an action for theft against anyone committing theft of the goods. Indeed, in the case of property held by someone under a contract of hire of work (e.g. a tailor or a laundryman), Justinian (J.4.1.15) even denies the action of theft to the owner. The reason for this is that the owner “has no interest in the safety of the clothes, since he can recover from the laundryman or the tailor in the action on hire”. The action was not, though, extended to those with no financial interest in the property. Thus, a depositee had no action for theft, as the depositee was liable to the owner only for his own deliberate misconduct.

A distinction was made between manifest and non-manifest theft. Manifest theft was committed where the thief “is seen or caught with the stolen thing, in public or private, by the owner or anyone else, before he reaches the place where he planned to stow it” (J.4.1.3). For manifest theft, damages of four times the value of property were payable to the victim. Only double damages were payable for non-manifest theft. In both cases, of course, this represents penal damages.

Robbery was a related delict, introduced by the praetor in the first century bc. It was an aggravated form of theft, distinguished by the use of force. The action for robbery gave a remedy of fourfold damages if it was brought within a year of the robbery.