Учебный год 22-23 / The Law of Obligations

remedies. Once he had sued the wrongdoer, all subsequent actions pursuing the same aim were barred. On the other hand, however, no obstacle existed which could have prevented the plaintiff from cumulating a penal and a reipersecutory remedy. The imposition of a penalty and compensation for the harm suffered were not eadem res, and thus the one action did not "consume" the other. It followed logically that actiones mixtae could be cumulated neither with an actio poenalis nor with an actio ad rern tantum persequendam: an actio mixta covered (and thus consumed) both aspects peculiar to the Roman law of delicts and left no room for any other remedy.122

10. Plan of treatment

It is in conformity with our initial programme123 if we confine ourselves to these somewhat sketchy general remarks. Just as the Roman lawyers did not develop a general law of contract, so they were not interested in carving out a set of rules and principles governing delictual liability at large. They had a law of delicts rather than of delict. We, too, should therefore rather look at the specific private wrongs on which they focused their attention. Since, however, we cannot provide a comprehensive survey, we have to confine our attention to the three most important delicts originating in the ius civile: furtum, damnum iniuria datum and iniuria. One of them, damnum iniuria datum, as regulated by the lex Aquilia, was to become the nucleus of the modern generalized law of delict. Historically older, however, were furtum and iniuria; both were already recognized by the time of the XII Tables as two specific types of delict. Following the traditional order of the ius commune,124 we shall commence our discussion with furtum.

"" For all details, sec Levy, Konkurrettz, vol. I and II; Liebs, Kltt^enkonkurretiz, passim; cf. also Kascr, RZ, pp. 232 sqq. 123 Supra, p. 32.

"Inter Delicti Privata primo loco ponitur Furtum, quia ejus corrcctio est anriquissima": Lauterbach, Collegium theoretico-practicutn. Lib. XLVII, Tit. II, II.

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CHAPTER 28

Fur turn

I.THE ROMAN CONCEPT OF FURTUM

1.The definition of D. 47, 2, 1, 3

The translation usually given for furtum is theft. Theft is recognized as a criminal offence all over the world, be it on the basis of the common law,1 be it on a statutory basis2 or as part and parcel of a comprehensive penal code.3 But its scope differs considerably from that of its Roman ancestor, the "private delict" furtum. In modern German criminal law, for example, theft is just one of a whole variety of neatly compartmentalized property-related offences.4 It consists in the taking away of a movable thing belonging to someone else, with the intent of unlawfully appropriating it to one's own use, and it has to be carefully distinguished from embezzlement,5 fraud6 and the reception of stolen property.7

The traditional civilian concept of furtum was much broader. "Furtum crimen omnium generalissimum", wrote a famous 16thcentury treatise writer,8 and he added: ". . . ubique gentium tarn est familiare ut vix ullum . . . reperiatur aut frequentius aut notius."9 He then proceeded to cite what must have been the most celebrated definition in the entire law of liability for wrongful acts. Taken from

1As in South Africa; cf. J.R.L. Milton, South African Criminal Law and Procedure, vol. II (2nd ed., 1982), pp. 595 sqq.; De Wet en Swanepoel, Strafrq? (4th ed., 1985), pp. 296 sqq.

2As in Engtand; cf. today, the Theft Act of 1968. In terms of its s. 1(1) "a person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it". The traditional English term for theft is larceny (from latrocinium).

3As in Germany: § 242 StGB.

4Cf. also De Wet en Swanepoel, op. cit., note 1, pp. 302 sqq. For a discussion of theft and all related offences in modern English law, cf. J.C. Smith. The Law of Theft (5th ed., 1984); for South Africa, cf. Milton, op. cit., note 1, p. 602.

5§ 246 StGB ("Anybody who unlawfully appropriates to his own use a movable thing not belonging to him, which is in his possession or custody . . .").

6§ 263 StGB ("Anybody who, for the purpose of unlawfully enriching himself or a third person, causes pecuniary damage to another by procuring or interposing an error through deception or distortion or suppression of true facts . . .").

7§ 259 StGB ("Anybody who for gain purchases, or otherwise acquires for himself or for a third party property that has been acquired by means of a punishable act, or who disposes of or participates in the disposal of such property . . .").

8Van Damhouder, Praxis reruin criminatium, Cap. CX, 1; cf. also Benedict Carpzov,

Practica nova rerum criminalium Imperialis Saxonica (Lipsiae, 1739), Pars II, Quaest. LXXVH, 1.

9Cf. also James Fitzjames Stephen, A History of the Criminal Law of England, vol. Ill (1883), p. 129 (referring to the laws of the early English kings): "Theft . . . seems to have been the crime of crimes."

922

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D. 47, 2, 1, 3, it was repeated by countless generations oflawyers10 and determined the scope of application of the wrong called "furtum" until well into the 18th century: "Furtum est contractatio rei fraudulosa11 lucri faciendi gratia vel ipsius rei vel etiam usus eius possessionisve"— theft is the dishonest handling of a thing in order to make gain either out of the thing itself or else out of the use or possession thereof. This definition is attributed to the late classical jurist Paulus; and though it may ultimately have been put together only by post-classical compilers,12 there is no reason to suspect that it did not correctly reflect the range of theftuous conduct at around the turn of the 2nd to the 3rd century A.D. Of course, it embraced every form of asportation that would be covered by the modern German notion of theft. It did, however, go beyond the latter in at least four important respects.

2. D. 47, 2, 1, 3 and the modern German concept compared

First of all, mere furtum usus constituted theft. Thus, for instance, the depositary was liable if he decided to use the thing deposited with him,13 and so was a borrower who took the lender's horse further than he was meant to take it.14 Likewise, a fuller or tailor who received clothes for cleaning or repair: ". . . si forte his utatur, ex contrectatione eorum furtum fecisse videtur, quia non in earn causam ab eo videntur accepta."15 Secondly, the Roman notion of theft covered furtum possessionis. The main example was that discussed by Gaius: "Aliquando etiam suae rei quisque furtum committit, veluti si debitor rem quam creditori pignori dedit subtraxerit"16—if someone has pledged a piece of property to his creditor, and subsequently taken it away from him, he has committed theft; for although the object that he

10Also in England. Cf. the version given by Bracton, De Legibus et Consuetudinibus Angliae f. 150 b ("[Fu]rtum est secundum leges contrectatio rei alienae fraudulenta cum animo furandi, invito illo cuius res ilia fuerit"; on. p. 425 in the edition by S.E. Thome, vol. II (1968)) containing the essential elements of D. 47, 2, 1, 3. For a discussion of Bracton's definition, cf. Stephen, op. cit., note 9, pp. 130 sqq.; cf. also Holdsworth, vol. III. pp. 360

The significance of this element is illustrated by Lauterbach, Collegium theoretuopracticum. Lib. XLVII, Tit. II, XXIX with the following nice example: "Hinc Israelitae e captivitate cgressi furtum non commiserunt, quia res Aegyptiis, supremo rerum Domino aulhore, subtraxcrunt." It appears to have been much discussed; cf. also Carpzov, op. cit., note 8, Pars II, Quaest. LXXVII, 2, who argues that "qui rem mandato et auctorate Dei tanquam supremi justissimique judicis accipit, fur dici vix poterit".

1 The text is regarded as interpolated by, among others, H.F. Jolowicz, Digest XLVII, 2 De Furtis (1940), pp. 1 sq.; Schulz, CRL, pp. 580 sq.; Alan Watson, "The Definition of furtum and the Trichotomy", (1960) 28 TR 197 sqq.; Kaser, RPrl, p. 615. Contra: J.A.C. Thomas, "Animus furandi", (1968) 19 lura 31 sq.

13Gai. Ill, 196.

14Gai. HI, 196; Paul. D. 47, 2, 40; cf. also Honsell/Mayer-Maly/Selb, p. 301, n. 13; as to the historical development, see Wieacker, RR, p. 578.

15Paul. D. 47, 2, 83 pr.

16Gai. Ill, 200.

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took belonged to him,17 he has still deprived the pledgee/creditor of its possession. In the third place, theft comprised what we have just referred to as embezzlement. "Eum creditorem, qui post solutam pecuniam pignus non reddat, teneri furti Mela ait, si celandi animo retineat", writes Ulpianus and approves "quod verum esse arbitror."18 The pledgee/ creditor who holds on to the pledge after the debt has already been paid, merely keeps what is in his possession anyway. Yet, provided he has acted with a view to concealing the object in question from the debtor, the latter is able to institute the actio furti.19 Finally, certain instances of fraud were taken to constitute furtuni. Thus, for example, a false creditor ("hoc est is, qui se simulat creditorem")211 was regarded as a thiefifhe accepted payment tendered by the debtor—"furtum fit", in the more generalizing words of Scaevola, "cum quis indebitos nummos sciens acceperit".21 All these cases fit Paul's definition: there was a physical contact between thief and stolen property that could be described as contrectatio,22 and the thief acted with the intention of making an unlawful gain.

3.D. 47, 2, 1, 3 and the Roman case law

(a)Of mule drivers, peacocks, weights and spread-out togas

Yet, the Digest also reports a number of decisions that appear to

In which case the rule "rci . . . nostrae furtum facere non possumus" normally applied (Paul. Sent. II. XXXI, 21). A res nullius could not be stolen cither; c(., for example, Sab./Cass./Ulp. D. 47, 2, 43. 5 and Raphael Powell, "Furtum by a Finder", (1958-59) 33 Tulane LR 509 sqq. (containing also a comparison with English law). A fugitive slave was considered as having stolen himself: cf. Afr. D. 47, 2, 61: С 6, 1, 1; С. 6, 2, 10 (both Diocl.) and Fritz Pringsheim, "Scrvus fugitivus sui furtum tacit", in: Festschrift fur Fritz Schulz, vol.

1 (1951), pp. 279 sqq.

1M D. 47. 2, 52, 7.

19The same must have applied if somebody refused to restore a deposit. On the other hand, however, mere denial of the receipt of a deposit did not as such constitute theft: cf. Paul. D. 47. 2, 1, 2; Cels. D. 47, 2, 68 pr. ("Infitiando depositum nemo facit furtum"); this is in line with the principle of "sola cogitatio furti faciendi non facit furem" (Paul. D. 47, 2,

1.1); for an analysis of the subtle differences, cf. J.A.C. Thomas, "Infitiando depositum

nemo facit furtum", in: Sttldi in otwre de Edoardo Volterra, vol. II (1971), 759 sqq. 2(1 Ulp. D. 47, 2. 43 pr.

21D. 13, 1, 18. On furtum and false pretences generally, seejolowicz, op. cit., note 12, pp. XXV sqq. More specifically on the position of a falsus procurator, see Dieter Medicus, "Zur Leistungsannahmc durch den 'falsus procurator' ", in: Syntelcia Vimenzo Arangh-Ruiz, vol. I (1964), pp. 214 sqq.; J.A.C. Thomas, "A Note on 'falsus procurator' ", in: Studi in honore di Giuseppe Grosso, vol. II (1968), pp. 4(19 sqq.

22This was, of course, a fifth essential difference between the modern and the Roman concept of theft. Whatever may have been the exact meaning of "contrectatio" (the term is usually translated as "handling", "touching", or "some sort of physical meddling"; cf., however, also David Pugsley, "Contrectatio", (1980) 15 The Irish Jurist 341: "Contrectatio is a nasty word. . . . It means touching, handling, fondling, pawing, interfering with"; according to MacCormack, 1977 Actajitridica 146 sq., these derogatory overtones made the term suitable for use "in a legal context where the idea to be conveyed is not just 'touching' but 'illicit touching' "), it did in any event not require the actual asportation of the object (nor its "apprehension", which § 242 StGB is generally understood to require, in a somewhat free interpretation of the term "Wegnahme" = "carrying away"). Thus, for example, the defacing of documents could constitute theft in Roman law: cf. Paul./Ulp./Iul. D. 9. 2, 40-42; Ulp./Paul. D. 47, 2, 27-32 and J.A.C. Thomas, "Furtum of Documents", (1968) 15 RID A

429sqq.; idem, "Furtum of documents II", (1969) 20 htra 301 sqq.

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overstep these boundaries (liberal though they were) and to assume a conception of theft so wide as to include almost any species of dishonesty.23 The "veteres", according to Paul, held a person responsible for theft who caused the loss of someone else's mules by fraudulently summoning him to court (so that, one has to gather, he was forced to leave the animals unguarded).24 The text ("Eum, qui mulionem dolo malo in ius vocasset, si interea mulac perissent, furti teneri veteres responderunt") mentions neither whether the mules were in fact stolen25 nor whether the "thief" intended them to be stolen; also, it does not disclose whether the summons was issued lucri faciendi gratia nor does it appear to be relevant whether or not the physical element of contrectatio was present.2'1 The veteres also seem to have been prepared to grant the actio furti against a person who chased, and thus caused the loss of, somebody else's tame peacock.27 Again, the mere fact that the owner was deprived of his peacock by an act of the defendant (which can hardly have involved a particularly manifest element of "handling") seems to have been a sufficient cause of action. In the opinion of Mela (cited by Ulpian), a vendor could bring the actio furti against the person from whom the purchaser had borrowed weights which were heavier than they were meant to be ("Maiora quis pondera tibi commodavit, cum emeres ad pondus: furti eum venditori teneri Mela scribit");28 whether the purchaser knew of the manipulation and could therefore be taken to have acted in concert with the borrower did not matter. Sabinus was prepared to grant the actio furti against a man who spread out his toga in order to conceal a servus fugitivus from his master's eyes.24 At a push, one may construe this as a contrectatio, but there is certainly no reference to an intention to steal on the part of the toga wearer.

(b)The nature of Roman definitions

Several strategies have been developed to deal with the apparent discrepancy between these texts and Paul's definition. Occasionally, for example, it has been suggested that one or the other of these rather

21 Jolowicz, op. cit., note 12, p. XX.

Bernardo Albanese, "La nozione del furtum fino a Nerazio", (1953) 23 Annali Palermo 44 sq. 27 Cf. D. 47. 2, 37. The original version of the decision is reflected in the words "Si

pavonem meum mansuetum, cum de domo mea effugisset. persecutus sis, quoad is perit, agere tccum furti potero". Pomponius qualified it by adding ". . . ica potero, si aliqms eum habere coeperit". Cf. Huvelin, op. cit.. note 26, p. 619; Albanese, (1953) 23 Annali Palermo 51 sq.; J.A.C. Thomas, "Contrectatio. complicity and furtum". (1962) 13 lura 82 sqq.

2H Ulp. IX 47, 2, 52, 22.

29 Aulus Gellms, Nodes Atticae, Lib. XI, XVIII. 14.

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extravagant decisions must be spurious.30 More often, however, it is Paul's definition that has attracted criticism: both the animus lucri faciendi (or animus furandi)31 and the requirement of contrectatio32 have been held to have been incorporated by the compilers. Then there are those who have attempted to bring about a reconciliation by interpreting these two requirements loosely enough to cover even the apparent exceptions. Thus, lucrum has been interpreted as not necessarily connoting gain in any economic sense,33 and the element of contrectatio has been held to have been satisfied even where there was no direct physical contact (as, for instance, in the case of the peacock).34 Others, again, have read into the texts what they intended to get out of them. Jolowicz, among others, interpreted the word "perire" in the case of the peacock as " 'get lost' with the implication of theft",3S Buckland believed the "veteres" in the case of the mule driver to have decided

"that i f l meddle with the thing [sc: the mule] willfully so as to deprive you of an economic interest in the thing, that is a contrectatio fraudulosa",36

and Watson presumes that both the person who summoned the mule driver to court and he who chased the peacock were held liable as accomplices: since it was their deliberate wrongdoing that permitted the theft to occur, the main offender's animus furandi is imputed to them and his contrectatio makes them liable.37 More plausible, however, is yet another explanation. Roman definitions cannot, as a rule, be taken as a definitive statement of all the necessary and sufficient conditions for specific legal consequences to arise; they are often more in the nature of "a useful guideline or a convenient summary of the main characteristics" of a particular concept.38 Thus not even Paul, who (probably) devised at least the substance of the definition of

30Cf, for example, Schulz, CRL, p. 572 (referring to Mela/Ulp. D. 47, 2, 52, 22).

31Paul Huvelin, "L'animus lucri faciendi dans la theorie romaine du vol". (1918) 42 X'RH 73 sqq.; Emilio Albertario, "Animus furandi". in: Studi di diritto rotnano, vol. Ill (1936), pp. 211 sqq. But see Jolowicz, op. ci t. , note 12, pp. LV sqq.; Thomas, (1968) 19 lura 1 sqq.; David Pugsley, "Animus furandi", in: Scritti in onore di Antonio Guarino, vol. V (1984), pp. 2419sqq.

32Cf, for example, David Pugsley (1980) 15 The Irish Jurist 341 sqq. But see Alan Watson, "Contrectatio as an Essential ofFurtum", (1961) 77 LQR 526 sqq.; j.A.C. Thomas (1962) 13 lura 70 sqq.; Geoffrey MacCormack, "Definitions: Furtum and Contrectatio",

1977 Actajuridica 129 sqq.

33 Thomas, (1968) 19 lura 28 sqq.; idem, TRL, p. 353; J.P. verLoren van Themaat,

Diefstal en, in verband daarmee, bedrog in die Romeins-Hollandse Reg (1949), pp. 23 sqq., 125 sqq.

4 Thomas, (1962) 13 lura 85; idem, TRL, p. 354 (Contrectatio "is best conceived as some positive physical interference with, not necessarily entailing actual touching of, the thing stolen").

35Op. cit., note 12, p. 48.

36(1941) 57 LQR 470 sq.

37(1961) 77 LQR 526 sqq. and "Contrectatio again", (1962) 28 SDH/331 sqq. Contra: Thomas, (1962) 13 lura 70 sqq. (pointing out that this would mean that one person can be liable as an accomplice, even though he was not working in concert with the actual thief). As far as the case involving the toga is concerned, cf. also Jolowicz, op. cit., note 12, p. XXIV.

3H MacCormack, 1977 Actajuridica 129 sqq. (quotation from p. 130).

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furtum, can be taken to have had in mind a dogmatic strait-jacket fitting every type of theft. Much less can one expect the earlier jurists of classical Roman law to have adhered to it particularly strictly. The individual elements of which the definition was composed were fairly broad and lent themselves to differing interpretations;39 we may therefore assume that many borderline cases were controversial, and quite possibly the proper scope of furtum was at one time even the subject of a school dispute between Proculians and Sabinians.40

(c) Furtum in ancient law

Most importantly, however, one must not forget that Roman law was never static. Between the enactment of the XII Tables and the end of the classical period of Roman jurisprudence lies a period of some 750 years, and it would be highly anomalous if the notion of furtum should not have undergone considerable changes in the course of it. Many details of the development are shrouded in speculation but its broad outlines are reasonably clearly discernible.41 When with the codification of the XII Tables furtum emerged into the dawning of early legal history, it was already a specific type of civil wrong; and though we do not as yet find any definition, we may safely assume that it was rather narrowly confined to cases involving the asportation of a movable object that was in someone else's possession or detention.42 That this must have constituted the original core notion of furtum is revealed particularly clearly by its etymology; for "fur" and "furtum" are derivatives of "ferre" (to take, to carry away).43 It is implicit, too, in Gaius' statement of what constituted theft in his own time, that is, around the middle of the 2nd century A.D. "Furtum autem fit non solum cum quid intercipiendi causa rem alienam amovet", he states at

39 Thus, for instance, the terms "dolus malus", "animus furandi", "animus celandi", "animus lucri faciendi" and others are used to denote the mental element of furtum. On the factual element of contrectatio, see MacCormack, 1977 Ada Juridica 144: ". . . [an] extraordinarily wide range of meaning . . . attaches to contrectatio. It is never defined in the texts and an attempt to express its essence produces some such statement as: contrectatio denotes a physical connection or contact between the property stolen and the thief. The point is both that the range of circumstances which might be held to constitute a physical connection is infinite, and that the opportunity for disagreement is immense." De Wet en Swanepoel, op. cit., note 1, pp. 301, 311 regard contrectatio as a term without any specific meaning. On contrectatio, cf. further (apart from the literature already referred to) VerLoren van Themaat, op. cit., note 33, pp. 8 sqq. and Carel Rainier Snyman, Die animus lucri faciendi en die toe-eieningsbegrip by diefstal: 'n regsvergelykende studie, (unpublished LLD thesis, Bloemfontein, 1972), pp. 14 sqq.; on lucri faciendi gratia, see Snyman, pp. 33 sqq.

40Peter Stein, "School Attitudes in the Law of Delicts", in: Studi in onore di Amaldo Biscardi, vol. II (1982), pp. 281 sqq.

41Cf., for example, Albanese, (1953) 23 Annali Palermo 43 sqq.; Jolowicz, op. cit., note

12, pp. XX sqq.; Thomas, (1962) 13 Iura 86 sqq.; Kaser, RPr I, pp. 614 sq. At Contra: Peter Birks, (1973) 8 The Irish Jurist 349 sqq.

43Cf. Paul. D. 47, 2, 1 pr. (also drawing attention to the equivalent Greek expressions).

For details, see Hubert Niederlander, "Die Entwicklung des furtum und seine etymologischen Ableitungen", (1950) 67 ZSS 253 sqq.

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the outset,44 thereby suggesting that it was at some time thus confined.

(d) Developments in Republican and classical Roman law

In the course of the Republic, the notion of furtum came to be extended considerably. Furtum and damnum iniuria datum were, after all, the two principal offences against property, and the scope of damnum iniuria datum was fairly rigidly determined by the provisions of the lex Aquilia.45 Thus it was to the as yet undefined notion of furtum that one tended to turn when a property-related offence occurred that deserved to be punished, without however, strictly speaking, fitting the requirements of either of these delicts. By the end of the Republic furtum had attained an indeterminate and almost boundless scope. It had been made to cover almost any situation in which a person, through someone else's deliberate act, suffered patrimonial loss other than by physical damage to the object in question.46 All the rather extraordinary cases discussed above: the peacock and the toga cases, as well as the ones concerning the mule driver and the false weights are characteristic of this period; neither was a particular type of "handling" required, nor need the offender have acted for the purpose of gain. In the meantime, however, the praetors had explored and opened up other avenues of granting protection against wrongful harm. The range of application of the lex Aquilia was considerably extended by means of actiones in factum,47 the actio de dolo,48 the actio servi corrupti and a variety of other remedies49 had been introduced, and the criminal justice system, too, had been improved appreciably. As a result of these developments a tendency to reappraise, retrench and reformulate50 the notion of furtum gained ground: for since the actio furti no longer served a kind of catch-all function, the need arose to reintroduce precision and coherence by carving out characteristic features distinguishing the old from the more recent remedies. Here, as elsewhere, the great "Proculian" Labeo appears to have been the harbinger of the new approach. Distancing himself from the "cruel and severe"51 judgments given by the veteres, he no longer regarded the intention, on

44 Gai. Ill, 195.

4:1 Cf. infra, pp. 975 sqq. On the borderline between furtum and the lex Aquilia were cases involving the defacing of documents. Cf., for example, Ulp. D. 9, 2, 41, 1 ("Intcrdum evenire Pomponius clegantcr ait, ut quis tabulas delendo fiirci non teneatur, sed tantum damni iniuriae, ut puta si non animo furti faciendi, sed tantum damni dandi delevit: nam furti non tenebitur; cum facto enim etiam animum furis furtum exigit") and Ulp. D. 47, 2, 27, 3 ("Sed si quis non amovit huiusmodi instrumenta, sed interleverit, non tantum furti actio locum habet, verum etiam legis Aquiliae: nam rupisse videtur qui corrupit"). Cf. further supra, note 22 and, in particular, Thomas, (1968) 15 RIDA 440 sqq.

4<1 Thomas, (1962) 13 Iura 87.

47Infra, pp. 977 sqq., 986 sq., 993 sqq.

48Supra, pp. 664 sqq.

49For an overview, see Kaser, RPr I, pp. 625 sqq.

50Thomas, (1962) 13 Iura 87 sq.

51Cf. Aulus Gellius, Nodes Atticae, Lib. VI, XV, 1.

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the part of the thief, to deprive another of his property as sufficient to constitute theft, but rather emphasized appropriation of the stolen property as a distinctive element of theft.52 He also drew attention to the (spurious) etymology of furtum suggested by Varro: "Furtum a furvo, id est nigro dictum Labeo ait", as Paul reports—a derivation insinuating an act done "clam et obscuro . . . et plerumque nocte".53 Sabinus, the head of the opposing school, was prepared to follow the veteres as far as the subjective side of theft was concerned. Deriving the word "furtum" from "fraus" (fraud),54 he inclined towards a wider basic concept of theft than Labeo.55 He even suggested that immovable property might be stolen.56 On the other hand, however, he introduced the notion of adtrectatio into the discussion57 as a convenient means of covering cases where a person unlawfully kept what was already in his possession,58 as well as situations where he committed furtum through an act of asportation.59 If Labeo thus stressed, and refined, the subjective side of theft, Sabinus called attention to a factual feature, characteristic, at least, of a variety of paradigm cases. Both aspects ultimately came to be combined, and thus we find contrectatio60 and animus lucri faciendi emerging, in Paul's definition, as the two distinctive elements normally to be found in cases of theft/'1 The

3~ Stein, Studi Biscardi, vol. II, pp. 283 sqq.

53 Paul. D. 47,2, 1 pr. For a detailed discussion, see Niederlander, (1950) 67 ZSS 186 sqq. The English adjective "furtive" retains the meaning suggested by Labeo.

lA Paul. D. 47, 2, 1 pr.; for a discussion, see Niederlander. (1950) 67 ZSS 239 sqq. э5 СЛ. Stein, Studi Biscardi, vol. II, pp. 286 sq.

("Verba sum Sabini . . .: Qui alicnam rem adtrectavit, cum id se invito domino facere mdicare deberet, furti tenetur").

5H And where the use of the older terms such as "amovere", "subripere" or "tollere" would therefore have been inappropriate and misleading.

59 The development is analysed in detail by MacCormack, 1977 Ada Juridica 131 sqq.

m The definition of theft in terms of "contrectatio" gave rise to the following problem that was much discussed among the Roman lawyers ("Volgaris cst quaestio": Ulp. (not Paul.) D, 47, 2, 21 pr.): if only A part of a heap or collection is taken, does that entail theft of the whole? The question was of great practical importance, since under the actio furti the thief was liable for twotold or fourfold the value of the object stolen. As long as actual asportation was the key element of theft, the answer cannot have been uncertain, but in later Republican and classical law it was arguable that the removal of part constituted contrectatio of the whole. Digest 47, 2, 21 preserves a "rather garbled discussion . . . of a medley of cases" relating to heaps of corn, barrels of wine and beams too heavy for removal by one person (MacCormack, 1977 Ada Juridka 134). It is impossible to reconstruct the position in classical law with any degree of certainty. The writers of the ius commune tended to be as perplexed (cf. Antonius Matthaeus, De Crimittibus (Amstelodami, 1661), Lib. XLVII, Dig. Tit. 2, Cap. I, 3: "De qua quaestionc Ulpianus and Paulus . . . ita perplexe disserunt, ut exdamare cum Poeta possis: Quo teneam vultus mutantcm Protea niodo?") as some modern authors (cf. Pugsley, (1980) 15 The Irish Jurist 350 sq.: "absurd", "ridiculous"). For a discussion, see Albanese, (!953) 23 Atlitali Palermo 139 sqq.; Jolowicz, op. cit., note 12, pp. 29 sqq.; J.A.C. Thomas, "Digest 47. 2. 21", in: Syntekia Vituenzo Arangio-Rniz, vol. II

(1964), pp. 607 sqq.; MacCormack, 1977 Ada Juridica 134 sqq.

61 Neither contrectatio alone (without the appropriate mental attitude) nor the mere theftuous intent (unaccompanied by a physical element) constituted theft. For the first

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borderline between the actio furti and the actio de dolo always remained somewhat blurred, though: on the one hand there were, of course, certain core situations for which the actio de dolo was clearly the proper remedy; yet, on the other hand, it was granted only "si alia actio non sit".62 Whenever the fraud therefore led to a situation that was characterized by contrectatio as well as by an intention to make a profit, the actio furti continued to be granted.63

4. Complicity in theft

As a consequence of this retrenchment of the notion of furtum a further, very important distinction came to be drawn which, in turn, prevented the range of liability from being confined too narrowly. "Interdum furti tenctur", explains Gaius,(l4

"qui ipsc furtum non fecerit, qualis est cuius ope consilio furtum factum est. in quo numero est qui nummos ribi excussit ut eos alius subriperet . . . aut oves aut boves tuas fugavit ut alius cas exciperet."

This is the locus classicus on complicity in theft: a person may be liable under the actio furti, even though he has not himself perpetrated the delict, but merely either rendered physical assistance ("ops") or mentally participated in the theft by way of instigation or advice ("consilium").65 Gaius provides two stock examples to illustrate this proposition: A knocks some coins out of B's hand so that С can run away with them; D stampedes E's sheep or cattle to enable F to catch them. There is no question that С and F can be charged with theft. But A and D are also liable, even though they did not "handle" (in the sense of contrectare) any of the coins or cattle. This distinction between main perpetrator and accomplice had, of course, been entirely unnecessary at a time when the notion of furtum was so vague and imprecise as to cover almost every form of dishonesty. There is in fact evidence that the veteres went so far as to hold A liable for theft, quite irrespective of the eventual fate of the coins: neither did they require him to have acted in concert with С nor did they regard it as necessary that there was such a third party as С who benefited from A's act; the coins could merely have rolled into the sea or into a sewer.66 Likewise, the man who waved the red banner in order to stampede somebody else's cattle: as long as he intended the cattle to stampede, it did not matter whether they were taken by a third party, fell over a cliff and died or merely ran away and

proposition, sec Paul. D. 47, 2, 22 pr. ("Si quid tur (regent aut ruperit, quod non etiam furandi causa contrcctaverit, eius nomine cum eo furti agere non potest"), for the second, Paul. D. 47, 2, 1, 1 ("Sola cogitatio furti faciendi non facit furem").

"" Supra, p. 664.

"3 Supra, pp. 923 sq. "4_ Gai. Ill, 202.

'° On the distinction between ops and consilium, cf. Ulp. D. 47, 2, 50, 3.

'l6 Ulp. D. 9, 2, 27, 21, as interpreted by Geoffrey MacCormack, "Ope consilio furtum factum", (1983) 51 TR 271 sqq., 275 sq.; and cf. Albancsc, (1953) 23 Annali Palermo 162 sqq.

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