Учебный год 22-23 / The Law of Obligations

disappeared.67 With the recognition of contrectatio as a characteristic element of theft neither the striker nor the banner waver could, however, any longer be regarded as thieves. Where their actions had resulted in the loss of the coins or in the death or disappearance of the cattle, Aquilian protection had become available;68 where, on the other hand, they had participated in somebody else's theft they were held liable as accomplices.69 The requirement of contrectatio thus provided both the substantive cause and the touchstone70 for the distinction between principal offender and accomplice. Dogmatically, it was based on an ingenious reinterpretation of the clause "ope consilio Numerii Negidii furtum factum" contained, from of old, in the formula of the actio furti non manifesti.71 Originally it was taken as a compendious phrase embracing the physical and mental requirements of theft: it had to be committed "by act and design" of Numeriis Negidius.72 It may have been Labeo who for the first time advocated a disjunctive interpretation and understood the words "ope consilio" in the sense of "by (Numerius Negidius') help or advice".73 This interpretation must rapidly have established itself as authoritative, for we find it in a variety of texts dating from either the end of the 1st or the beginning of the 2nd century A.D.74 "[SJicut nemo furtum facit sine dolo malo, ita nee consilium vel opem ferre sine dolo malo posse", remarks Pedius,75 thus clearly distinguishing between the person who commits the theft (furtum facere) and those who merely assist, whether it be consilio or ope. It is likely that even the formula was slightly changed76 to accommodate the new, and differentiated, way of looking at liability for theft: "Si parct Aulo Agerio a Numerio Negidio opeve consilio Numerii Negidii furtum factum esse paterae aurae . . .";77 for if ope consilio entailed liability (merely) for complicity in theft, a special clause had to be inserted to cover liability for theft proper.

67Cf. Ulp. D. 47, 2, 50, 4; Gai. Ill, 202; Albanese, (1953) 23 Annali Palermo 54 sq.; MacCormack, (1983) 51 TR 274 sqq.

68Cf. infra, pp. 976 sq., 986 sq.

w For another interesting case of complicity, see Ulp. D. 47, 2, 52, 21: A wants to invest money by lending it to a person of good credit. He asks В for advice, who recommends C. С is indeed a man of substance. When it comes to handing over the money, however, В presents someone else (a penniless D, rather than the respectable C) under the name of C. В and D subsequently share the money. D has committed theft, В is liable "quasi ope . . .

consilioque furtum factum sit". In this case, too. the veteres would not have hesitated to regard both В and D as actual thieves: cf. Paul, (ad Plautium) D. 47, 2, 67, 4.

70MacCormack, (1983) 51 TR 283.

71Huveiin, op. cit., note 26, pp. 385 sqq.; Jolowicz, op. cit., note 12, pp. LXV sqq.; Albanese, (1951) 23 Annali Palermo 164 sqq.

72Cf, for example, Stein, Studi Biscardi, vol. II, p. 285.

73The crucial text is Lab./Paul. D. 50, 16, 53, 2, on which see, most recently, Stein, Studi Biscardi, vol. II, pp. 285 sq.. but also MacCormack, (1983) 51 TR 276 sqq.

74lav. D. 47, 2, 91, 1; Pedius/Paul. D. 25, 2, 21, 1; Pedius/UIp. D. 47, 2, 50, 2; Cels./Ulp. D. 47, 2, 50, 1; analysed, most recently, by MacCormack, (1983) 51 TR 282 sqq.

75Ulp. D. 47, 2, 50, 2.

7(1 MacCormack, (1983) 51 TR 293.

77 Cf. Gai. IV, 37; Lenel, EP, p. 328; Kaser, RPr I, p. 616.

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II.THE ACTIONS ARISING FROM THEFT

1.Actio furti nee manifesti

(a)"Quanti es res fuit, duplum"

What we have just quoted was the intentio of the formula of the actio furti nee manifesti: if it appears that a golden cup has been stolen from the plaintiff by the defendant or with the aid or through the incitement of the defendant. . . . Depending on whether or not the matter did in fact so appear, the judge was instructed either to absolve the defendant or to condemn him to the plaintiff into "quanti ea res fuit, cum furtum factum est, tantae pecuniae duplum". The thief was liable for double, and what had to be doubled was, generally speaking, not the plaintiff's interest in the object not being stolen (his "damages", as we would put it), but the value of the stolen object at the time of the commission of the delict.78 If, however, its value subsequently increased, assessment of the sum of condemnation had to be based on that higher value: the reason being that the object in question could be considered as stolen, not only at the moment of the first contrectatio, but at the time of the rise in value too (". . . quia et tune furtum eius factum esse verius est").79 Theft, in other words, was construed as an ongoing wrong

("Dauerdelikt").

Assessment of "quanti ea res fuit, duplum" could cause problems where a document that had been drawn up to evidence a claim or payment was stolen. Should one base the claim merely on the value of the material of which the document consisted and thus consider the matter merely in terms of the disappearance of a tablet or a piece of paper? This would, in many cases, hardly have been satisfactory: after all, the document was designed to represent the sum that had been specified therein. Very widely, therefore, the full value of the sum in question came to be accepted as the measure of the value of the document removed: "Qui tabulas cautionesve subripuit, in adscriptam summam furti actione tenebitur."80 But this approach led to a logical dilemma. For if it was possible to prove adscripta summa to the judge in the theft proceedings, the loss of the document had not really deprived the plaintiff of anything more than a tablet or a piece of paper: he would still be able to pursue his claim against the defendant, even without the use of the document. If, on the other hand, the document was of essential importance for establishing that claim, the plaintiff was not really able to prove adscripta summa (and that is: the sum specified in the document on which assessment of the poena furti was to be

7H Ulp. D. 47, 2, 50 pr.: "In furti actione non quod interest . . . duplabitur, sed rci verum predum"; cf. also Ulp. D. 50, 16, 193.

79Ulp. D. 47, 2, 50 pr.

80Paul. D. 47, 2, 83, 3; cf. also D. 47, 2, 27 pr. sqq.

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based) in the theft proceedings either.81 How the Roman lawyers ultimately resolved this difficulty is not entirely clear.82 Generally speaking, they appear to have been concerned with evaluating the plaintiff's interest in the document ("quanti ea res fuit" in the sense of "what the matter was worth for him"),83 which in turn depended on its real probative value. Post-classicaljurisprudence seems to have reverted to the choice of simply doubling the adscripta summa (wherever it could be established).84 Although in these and certain other cases85 the notion of interesse was brought into the discussion, the actio furti (nee manifesti) always remained a purely penal remedy:86 the duplum was not designed to compensate the victim for his loss; it served merely to penalize the thief. Condemnation entailed infamia.87 The person to be sued, as is apparent from the formula, could either be the thief himself or an accomplice.

(b) The right to sue: ex iure dominii and custodia liability

But who could bring the actio furti? Very often, of course, this question was not difficult to answer either: if A steals clothes belonging to B, the right of action must obviously vest in B: "iure dominii defertur furti actio."88 This solution did, however, not always commend itself as appropriate. Take the case where В has given his clothes to a tailor to be mended, and it is the tailor (C) who loses them by theft. In this situation it is ultimately С who loses out, not B, the owner. For as long as С has been promised a remuneration for thejob, a contract of locatio conductio operis exists between him and his customer. On account of this contract he is liable for custodia.89 Custodia, as we have emphasized repeatedly,90 included liability for loss resulting from theft, quite irrespective of whether the debtor himself could be blamed for the incident or not. B's position was therefore well protected, because,

81 Cf. the argument reported by Paulus in D. 47. 2, 32 pr.: ". . . si iudici, apud quem furti agatur, possit probari, quantum debitum Juerit, possit etiam apud cum iudicem cadem probare, apud qucm pecuniam petat: si vero in furti iudicio probare non potest, ne illud quidem posse ostendi, quanti eius interest." Hence the conclusion of "quidam": "tabularum dumtaxat existimationem faciendam in furti actione." Paul's own answer to the problem (". . . potest post furtum factum tabulas nanctus esse actor, ut ex eo probet quanti sua interfuerit, si tabulas nanctus non esset") has been described, appositely, as "partial and rather desperate": Thomas, (1968) 15 RIDA 436.

For a discussion, see Medicus, Id quod interest, pp. 233 sqq.; Franz Wieacker, "Furtum tabularum", in: Synteleia Vincenzo Aranyio-Ruiz, vol. I (1964), pp. 562 sqq.; Thomas, (1968) 15 RIDA 432 sqq.

83 Possibly under the influence of the developing conception of interesse in the lex Aquilia (cf. infra, pp. 969 sqq.): Thomas. (1968) 15 RIDA 437 sqq.

H4 Paul. Sent. II, XXXI, 32.

85Cf. Medicus, Id quod interest, p. 232.

86Cf. still Inst. IV, 1, 19.

87Iul. D. 3, 2, 1; Paul. Sent. II, XXXI, 15.

88Pap. D. 47, 2, 81, 1.

89Cf. supra, pp. 397 sqq.

40 Cf. for example, supra, pp. 192 sqq.

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unless С could plead vis maior (which, however, he was unable to do in case of theft), he could obtain redress on the basis of his actio locati. Under these circumstances it was hardly equitable to grant him the actio furti too. It was С who was the ultimate victim of A's wrongful behaviour and who thus deserved to claim the penalty. This was generally recognized in Roman law: "[S]i . . . sarcinator sarcienda vestimenta mercede certa acceperit eaque furto amiserit, ipse furti habet actionem, non dominus", as Gaius crisply put it.91 He rationalized this result in terms of an old rule according to which the actio furti could only be given to the person who had an interest in the safety of the thing that had been stolen: "Cuius interfuit non subripi, is actionem furti habet."92 This was usually the owner, but if the owner could proceed against someone who was liable to him under a contract involving custodia, that other party took his place. Not only could the contractor in a locatio conductio operis relationship be in such a position, but also a lessee (locatio conductio rei),93 a borrower (commodatum)94 and a pledgee (pignus).95 A depositary, on the other hand, was normally liable only for dolus {and culpa lata);96 he did not therefore have a specific responsibility for (and interest in) the safety of the thing. If the deposit was stolen from him, his position remained unaffected: he neither could be sued by the depositor nor could he, in turn, sue the thief for duplum.97 The matter was different only if the

Scaevola/Pomp. D. 47, 2, 77, 1. Gaius has "[cuius] interesit rem non perirc" and "[cuius] interest rem salvam esse".

93Iul. D. 47, 2, 59; Gai. D. 19, 2, 6, For further details concerning both locatio conductio operis and rei, see Fritz Schulz, "Die Aktivlegitimation zur actio furti im klassischen romischen Recht", (1911) 22 ZSS 59 sqq.

94Gai. Ill, 206; Mod. Coll. X, II, 6; cf also C. 6, 2, 22, 1; Schulz, (1911) 32 ZSS 37 sqq.

95Gai. Ill, 204 ("Unde constat creditorem de pignore subrepto furti agere posse"); Paul. D. 47, 2, 15 pr.; Paul. D. 47, 2, 88; Hans Ankum, "'Furtum pignoris' und 'furtum fiduciae (II)", (1980) 27 RIDA 95 sqq.; Max Kaser, " 'Furtum pignoris' und 'furtum fiduciae' ", (1982) 99 ZSS 249 sqq.; cf. also Schulz, (1911) 32 ZSS 43 sqq. But the question has been (and still is) controversial; for contrary views and interpretations, c(. J.A.C. Thomas, "Furtum pignoris: a commentary on the commentaries", in: Studi in onore di Cesare Sanfilippo, vol. I (1982), pp. 585 sqq.; G.C.J.J. van den Bergh, "Custodia and furtum pignoris", in: Studi in onore di Cesare Sanfilippo, vol. I (1982), pp. 601 sqq.; cf. also still Max Kaser, "Besitzpfand und bcsitzloses Pfand", (1979) 45 SDHI63 sqq. The answer depends on whether one accepts (1) that the pledgee was liable for custodia and (2) that his entitlement to the actio furti rested on this custodia liability rather than on his security interest. It is interesting to note that Gaius discusses the position of the pledgee (without reference to custodia) before he deals with fullo, sarcinator and commodatary (where he specifically links entitlement to the actio furti and custodia). It may therefore well be that in earlier classical law the pledgee's security interest (based on his real right in the object pledged to him) was regarded as the relevant criterion; the actio furti would then have been granted to the pledgee onl y up t o doubl e the val ue of t he cl ai m that was secured by the pl edge but t o the plcdgor/owner for (double) the amount by which the value of the pledge exceeded the claim; cf. also Ulp. D. 47, 2, 12, 2; Ulp. D. 47, 2, 14. 5-7 and Kaser, (1982) 99 ZSS 255 sqq.

96Supra, pp. 208 sqq.

97Gai. Ill, 207.

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depositary had specifically agreed to be liable for custodia.98

(c)The right to sue; emptio venditio and miscellaneous other cases

What about the vendor who had sold, but not yet delivered, the merx? Ownership had not yet passed, but the risk was already, emptione perfecta, on the purchaser. Yet the practical impact of the risk rule was limited by virtue of the fact that the vendor was under a custodia liability: if the merx was stolen before delivery, the purchaser could bring the actio empti and claim damages for non-performance.94 We are not surprised, therefore, to find the actio furti being granted to the vendor rather than the purchaser: "Eum qui emit, si non tradita est ei res, furti actionem non habere, sed adhuc venditoris esse hanc actionem Celsus scripsit."100 Yet, the actual reason for this proposition was not the vendor's liability for custodia. Of overriding importance was the fact that the vendor was still owner of the object sold101—for, after all, we are dealing here with the rather exceptional, in fact unique, situation that an owner was liable for custodia to a non-owner. That the vendor could thus avail himself of the actio furti iure dominii was not of purely academic interest. Conductor, commodatary and pledgee were granted the actio furti only as long as they were able to honour their obligation towards the owner; as soon as they fell insolvent, the right to bring the actio furti reverted to the latter, "quia hoc casu ipsius interest rem salvam esse".102 The vendor, on the other hand, on account of being owner, retained the actio furti irrespective of whether he was still solvent or not. The purchaser merely had an obligatory claim to have the object handed over, and such a claim could not prevail against the vendor's ownership when it came to determining "cuius interest rem salvam fore". This principle, incidentally (obligatory claim not a sufficient basis to sue for theft), was of general application; a person, for example, to whom a thing was due under a stipulation did not have the actio furti either.1"3

Yet, ownership and custodia liability were not the only bases for entitlement to bring the actio furti. A somewhat haphazard group of cases existed, where the Roman lawyers were prepared to recognize a legally relevant interest104 in the possession, the use and enjoyment or

'IH Cf. Ulp. D. 47, 8, 2, 22 sq. and Kascr, (1979) 45 SDHI 72. For

details cf. supra, p. 287. 100 Ulp. D. 47, 2, 14 pr.

1 Cf. Pap. D. 47, 2, 81 pr. ("Si vendidcro neque tradidero servum et is sine culpa mea subripiatur, magis est, ut mihi furti competat actio: et mca videtur interesse, quid liominium apud me fttit"); for all details, sec Max Kaser, "Die actio furti des Vcrkaufers", (1979) 96 ZSS 118sqq".

10~ Gai. Ill, 205; cf. also Ulp. D. 47, 2, 12 pr. (who provides the following reason: "пат

qui non habet quod perdat, eius pcriculo nihil est"). 1(13 Paul. D. 47, 2, 13.

104Such interest was in any event only recognized if it arose "ex honesta causa": Pomp. D. 47, 2, 77, 1 (dealing with the situation where a thing was stolen from a thief; the first thief

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retention of a thing: the position of the usufructuary, for example, enjoyed such recognition, and so did that of a bonae fidei possessor or of a person entitled to a ius retentionis.1(>5 In all these cases the actio furti was, however, split; the owner of the stolen object was still entitled to bring the actio furti for any amount exceeding the usufructuary's, possessor's etc. interest.

2.Actio furti manifesti

(a)The discrimination of the manifest thief

Where there was an actio furti nee manifesti there must, of course, have been an actio furti manifesti. It lay for poena quadrupli: for fourfold the value of the object stolen.106 Throughout its entire history, Roman law distinguished between furtum nee manifestum and furtum manifestum and dealt with the latter much more severely than with the former.107 This must appear to be rather odd, for there was no difference in guilt between the two forms of theft;108 nor could it have been maintained that the one was the more vicious or dangerous form of wrongful behaviour.109 The only distinctive feature of furtum manifestum was that the thief was caught in flagrante delicto, that is, in the act of stealing;110 and furtum nee manifestum, in turn, could only be defined negatively, and rather trivially, as every form of theft that was not manifest.111 But that was hardly a rational basis for such a drastic

may not bring the actio furti against the second one "ideo quod domino intcrfuit, non prioris

furis, ut id quod subrcptum et salvum essct").

1115 Ulp. D. 47, 2, 46, 1-6; lav. D. 47, 2, 75; Ulp. D. 47, 2, 52, 30; Iul./Paul. IX 47, 2, 54, 4; Kaser, (1979) 96 ZSS 103 sq.; idem, "Grenzfragen der AktivJegitirnation zur actio furti". in: De iustitia et hire, Festgabejtir Ulrich von Liibtow (1980), pp. 291 sqq.

106 On the significance of quadruplum cf. Vmcenzo Arangio-Ruiz, "La repression du vol flagrant ct du non flagrant dans I'ancicn droit roniain", in: Scritti di diritto romano, vol. II (1974), pp. 371 sqq. (unconvincing); contra, for example, Honsell/Mayer-Maly/Selb,

p.359. For a general discussion, cf. Kelly, Roman Litigation, pp. 153 sqq. 107 For Justinianic law, cf, lust. IV, 1, 3 sqq.

108"This point is also emphasized by Jolowicz, op. cit., note 12, pp. LXVIII and others.

1)4 Some writers of the ius commune even took the view that non-manifest [heft was the more serious offence: cf. infra, note 185. Others who defended the traditional distinction (which was still preserved in artt. 157 sq. of the Constitutio Criminalis Carolina) drew attention to the fact that the apprehension of the thief was very disgraceful ("quia deprehensio tanta rurpitudo") and gave rise to clamour and commotion ("quia clamorem. tumultum . . . excitavit"): cf. Heinrich Janssen, Der Diehstahl in seiner Entwicklung von der Carolina bis ziim Ausgang des 18. Jahrlutmierts, (unpublished Dr. iur. thesis, Gottingen, 1969), pp. 69 sq, (with the quotations from a commentary on the Carolina by Johann Paul Kress from 1721). For a more frivolous comment, cf. Plucknctt, History, p. 447: "No reasons seem to be evident for the rule [sc: that the manifest thief fared much worse than the one whose guilt was only established after a lapse of time] . . ., but some savages are said to adopt it as a special condemnation for those who are not merely thieves, but incompetent thieves."

1(1 On concept and etymology of furtum manifestum, see Fernand dc Visscher, "Le 'fur manifestos' ", (1922) 46 RH 442 sqq. (unconvincing); contra: Ernst Rabel, (1932) 52 ZSS 473 sqq.; cf. also the discussion by Jolowicz, op. cit.. note 12, pp. LXVIII.

Cf. Gai. Ill, 185 ("nam quod manitestum non est, id nee manifestum est"); Gai. I). 47, 2, 8 ("Nee manifestum turtum quid sit, apparet: nam quod manifestum non est, hoc scilicet nee manifestum est"). Cf. also MacCormack, (1983) 51 TR 271.

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differentiation of the penalties. What both the classical lawyers and Justinian faithfully preserved112 was a rather rough-and-ready distinction characteristic of the early Romanjurisprudence (as, perhaps, of any early legal system)113 and based on unrefined perceptions of what was just and fair. "In early law there is all the difference between obvious guilt and guilt which has to be proved" writes Jolowicz,114 thus pinpointing the one essential factor that explains the comparatively heavier penalty imposed on manifest thieves; a conspicuous apprehension about indirect (or circumstantial) evidence and a marked reluctance to accept it as tantamount to what was self-evident and, seemingly, indisputable.115 The other point has been emphasized by Sir Henry Maine, when he said:

"The ancient lawgiver doubtless considered that the injured proprietor, if left to himself, would inflict a very different punishment when his blood was hot from that with which he would be satisfied when the Thief was detected after a considerable interval; and to this calculation the legal scale of penalties was adjusted."116

The manifest thief deserved to be treated more harshly on account of the fresh and acute resentment he had aroused in the victim: another one117 of those traits of the developed law of delict that were clearly reminiscent of its origin in private vengeance. At the time of the XII Tables the manifest thief did not even receive the benefit of a proper trial. After having been caught, he merely had to be brought before the magistrate; there a liber homo was first scourged and then assigned for life to the party from whom he had stolen.118 Such a magisterial addictio119 was all that was required before the victim of the theft could wreak his vengeance. A slave, after having been similarly beaten, was hurled down from the Tarpeian rock.120 In two cases it was even lawful to kill a fur manifestus out of hand: if he was caught at night ("Si nox furtum faxsit")121 or if he defended himself with a weapon ("Luci . . .

112". . . discreditable example of Roman conservatism": Dc Zulueta, Gains II, p. 199; cf. also Thomas, Institutes, p. 264.

113For Germanic law cf. Hcinrich Brunner/Claudius Freiherr von Schwcrin, Deutsche Rechtsgeschichte, vol. II (1928). pp. 626 sqq.; for the old English common Saw, cf. Pollock and Maitland, vol. II, pp. 495 sqq.; cf. also Stephen, op. cit., note 9, p. 132, who draws attention to the fact that the division of thefts into manifest and non-manifest theft by Bracton was

taken directly from Roman law.

114Op. cit., note 12, p. LXIX.

115Cf. also Pollock and Maitland, vol. II, p. 495 (". . . we doubt whether we can wholly

acquit our forefathers of the [il-|logical idea that half-proven guilt is proven half-guilt").

h(> Ancient Law, p. 223.

117 Cf. supra, pp. 915 sqq. ин Cf. Gai. Ill, 189.

119 On which see, most recently, Walter Selb, "Vom geschichflichcn Wandel der Aufgabe des 'iudex' in dcr 'legis actio'", in: Geddchtnisschnft fiir Waljgatig Kunkel (1984), pp. 423, 443; Max Kaser, "Unmittelbare Vollstreckbarkeit und Burgcnrcgrcss", (1983) 100 ZSS 94. For a parallel in the old English common law (summary mode of dealing with "hand-having" thieves), see Pollock and Maitland, vol. II, pp. 160 sq.

1211 Aulus Gellius. Nodes Atticae. Lib. XI, XVIII, 8.

121 Tab. 8, 12.

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si se celo defendit").122 But here the law had to ensure, at least, that it did not indirectly sanction secret murder. Therefore the victim of the theft was required to make public the lawfulness of his killing by shouting aloud (endoplarare) and thus alarming whoever might be near.123 Thus it was originally only the fur nee manifestus who had to be sued and whose guilt had to be made incontestable according to the ordinary rules of civil procedure; the actio furti nee manifesti for double the value of the thing stolen was in fact already recognized by the XII Tables.124 Sometime within the next three hundred years125 the praetors, appalled by the "asperitas poenae"12'1 for manifest theft, introduced an actio furti manifesti along very similar lines.127 Their intervention heralded the end of the archaic forms of self-redress in theft—though not the end of the discrimination against the manifest thief.

(b) The concept offurtum manifestum

With one important exception, the concept of what constituted furtum manifestum had remained unchanged. It covered all those situations where the thief was caught in rlagrante delicto and where his guilt was therefore evident. But what exactly did that mean?128 Did the thief have to be apprehended in the very act of stealing ("dum fit")? Or did it suffice if he was caught in the place where he had committed the delict ("eo loco . . . ubi fit")? In that case, the actio furti manifesti would still

122Tab. 8, 13. Cf. generally the sources and literature in Kaser, RPr I, p. 158 (n. 34); Wieacker, RR, p. 244 (n. 38); also Jolowicz, op. cit., note 12, pp. LXXIV sq.

123Cf, Gai. D. 9, 2, 4, 1 ("cum clamore testificfare]"). On the parallel in Germanic law

("Geriifte"), see Wieacker. Festschrift jtir Leopold Wenger, vol. I (1944), pp. 129 sq.; for

England, cf. Pollock and Maitland, vol. II, pp. 160 sq.

'~ 4 Gai. Ill, 190; cf. tab. 8, 16, as reconstructed on the basis of Festus. De verhomm signification?, sub "ncc" (but see Rcuven Yaron, "Si adorat furto", (1966) 34 TR 510 sqq.). The duplum is perhaps explainable, originally, as a form of taliation: the defendant must be placed in the same position, financially, as he had placed the plaintiff. Cf. Kelly, Roman Litigation, pp. 154 sqq.; Detlef Liebs, "Damnum, damnare und damnas", (1968) 85 ZSS 191 sq.

Cf. Schulz, CRL, p. 582; Watson, Obligations, pp. 231 sq.; as far as slaves were

concerned, cf. still Pomp. D. 12, 4, 15. 12f)Gai. Ill, 189.

12 The following were the main differences between the actio furti nee manifesti and the actio furti manifesti: the former had a formula in ius concepta (thus, it applied only to Roman citizens; to peregrini it had to be extended by way of fiction: cf. Gai. IV, 37 and De Zulueta, Gains II, p. 257). it lay for double the value and could be brought against the main perpetrator as well as his accomplices (on account of the "opevc consiliove" clause). The actio furti manifesti had a formula in factum concepta (since it was a praetorian creation), lay for fourfold the value and could only be brought against the thief himself, not against any of his accomplices (the formula did not contain the "opevc consiliove" clause; reason: "[i]s, qui opem furtum facienti fert, numquam manifestus est: itaque accidit, ut is quidem, qui opem tulit, furti nee manifesti, is autem, qui deprehensus est, ob eandem rem manifesti teneatur").

l2* For what follows, see Gai. Ill, 184; Ulp. and Paul. D. 47, 2, 3-7; Inst. IV, 1, 3; Dc Visschcr, (1922) 46 RH493 sqq.; Rabel, (1932) 52 ZSS 475 sqq.; Jolowicz, op. at., note 12, pp. LXXHI sq.

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have been available if a theft of olives committed in an olive grove, or of grapes committed in a vineyard, was detected as long as the thief had not yet left the olive grove or vineyard. Or could one possibly extend the notion of furtum manifestum to all those situations where the thief had not yet carried the stolen object to its intended hiding place ("donee perferret eo quo perferre fur destinasset")? Or did it even embrace cases where the thief was seen, at any time, with the particular object in his hands ("quandoque earn rem fur tenens visus fuerit")? All four approaches were advocated in classical Roman law, as Gaius informs us. He himself regarded either of the first two opinions as tenable, but reported that the second was favoured by most.129 Justinian ultimately adopted the third solution,130 as had Julian and Ulpian before him.131 This dispute, in a slightly modified form, still lives on in modern German criminal law when it comes to drawing the line between attempted and completed theft. The "theories" of contrectatio, apprehensio, ablatio and illatio are mentioned by the textbook writers in this context: the choice thus being between the moment when the object in question is handled, apprehended, carried away or brought into safety.132

(c)The quaestio lance et licio

The one exception concerned an ancient institution which even Gaius could no longer understand. Under the law of the XII Tables a person was considered to be fur manifestus if the stolen goods were found on his premises in the course of a formal, highly ritualistic search.133 This was the famous quaestio lance et licio: to be performed (but for the licium) in stark nakedness and with a dish (lanx) in both hands.134 Streams of ink have flowed in ever-repeated attempts to explain these rather mysterious particulars. Gaius135 opened the roundabout of speculation by suggesting that the licium was some sort of apron, designed to cover the privy parts of the searcher. He also mentions two possible reasons why the searcher had to carry a dish (or perhaps rather

129Gai. Ill, 184. For interesting case law, see Ulp. D. 47, 2, 7, 1-3.

130Inst. IV, 1, 3.

131Iul./Ulp. D. 47, 2, 3, 2. Gaius' objection to this solution (". . . magnam recipit dubitationem utrum unius did an etiam plurium dierum spatio id terminandum sit") was answered by accepting the limitation suggested by Paul (" 'Quo destinaverit quis auferre' sic accipiendum est 'quo destinaverit eo die manere eum eo furto' ").

'" Cf, for example, Reinhart Maurach, Friedrich-Christian Schroeder, Strafrecht, Besonderer Teil, Part I (6th ed., 1977). § 34 III В I. The moment of apprehensio is generally regarded as relevant today (that is, a contrectatio that amounts to an assumption of control and gives the thief the opportunity to remove the object). 1 doubt whether this correctly

reflects the meaning of the notion of "Weynahme" (taking away), as used in § 242 StGB. ш Gai. Ill, 192; Aulus Gellius, Nodes Atticae, Lib. XI, XVIII, 9.

134For similar ritualistic searches in other early legal systems, c(. Claudius Freiherr von

Schwerin, Die Formen der Haussuchim% in iridoqermanischen Rechten (1924).

135 III, 193.

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a platter) with him: either it was to engage his hands and so to prevent him from palming anything off, or else he may have required it as a receptacle for whatever he found. But these theories are almost certainly too rationalistic, and Gaius himselt refused to accept them.136 Over the centuries, many other views have been propounded,137 but no certainty has, as yet, been reached. Theodor Mommsen, writing in 1898, refused even to detail all the old and new "pieces of folly" ("Thorheiten"y3S advanced in this context. Yet the most plausible view appears to be that all the three characteristic elements of the quaestio—nakedness as well as lanx and licium — were required for an expiatory offering to the household gods;139 for, after all, the search constituted a grave breach of the peace of the house, a sacrilege (nefas) that had to be expiated somehow. The lanx may then have been an offering-cup, the licium a kind of sacral fillet. The nakedness may have been symbolic for the plaintiff's purity; at the same time, it clearly demonstrated that he entered the house unarmed and with nothing in

his pocket that he could later pretend to find. The whole procedure became obsolete sometime during the 2nd century в.с.,140 and by the

middle of the 2nd century A.D. it could already be dismissed, rather curtly, as ridiculous.141 Yet, even in classical Roman law, a thief whose guilt was established through an informal search of his premises—in front ot witnesses — was dealt with more severely than a mere fur nee manifestos, although he was no longer branded a fur manifestus either. An actio furti concepti for three times the value of the object stolen was available against him.142 If a suspect refused to have his premises searched, he was liable to be charged fourfold (actio furti prohibit!).143

3. Other remedies available in case of theft

The penal actio furti, in its various manifestations, was not the only remedy available to the victim of a theft. The owner of the stolen object could obviously bring the rei vindicatio for its recovery. According to its formula, the defendant was asked, in the first place, to return the

" ' ". . . neutrum conim procedit, si id quod quaeratur eius magnitudinis aut naturae sit, ut ncque subici neque ibi imponi possit."

137 For an overview, cf., for example, Egon Weiss, "Lance et licio", (1922) 43 ZSS 455 sqq^; Franz Horak, RE, vol. XXIV, col. 788 sqq.; Wicacker. RR, p. 245.

™ Romisches Stra/recht, p. 748.

139For a detailed analysis, cf. Joseph Georg Wolf, "Lanx und licium. Das Ritual der Haussuchung im altromischen Recht". in: Sympotka Franz Wieacker (1970), pp. 59 sqq.

140Cf. Watson, Obligations, pp. 232 sq.

141Gai. Ill, 193 ("quac res ridicula cst").

142Gai. Ill, 186, 191; Aulus Gcllius, Nodes Atticae, Lib. XI, XVIII, I t . Cf. David Daubc, "Some Comparative Law—Furtum conceptum", (1937) 15 77? 48 sqq.; Jolowicz, op. cit., note 12, pp. LXXV sqq.; De Zulueta, Gains II, pp. 201 sqq.; Jolowicz/Nicbolas, pp. 168 sq. Of course, it could happen that the object had not in fact been stolen by the occupier of the premises but had been placed there by someone else. If that was the case, the latter was liable to the occupier under an actio furti oblati: Gai. Ill, 187, 1'Jl.

143Gai. Ill, 188, 192. By the time of Justinian not only the actio furti prohibit! but also the actiones furti concepti and oblati were obsolete: hist. IV, 1, 4.

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