!!Экзамен зачет 2023 год / The Law of Obligations

object;144 if he refused to do so, he was condemned to pay "quanti ea res erit, tantam pecuniam". Clearly, therefore, the rei vindicatio was a reipersecutory remedy.145 The same was true of the contractual claim, of which the plaintiff was sometimes able to avail himself against the thief.146 If the depositary used the object deposited with him, he committed furtum.147 At the same time, however, his behaviour constituted breach of contract, and thus the actio depositi could be brought against him. If the borrower took the lender's horse further than he was meant to take it, he was liable under the actio commodati. In other cases, again, the actio locati was available: as, for example, when a fuller used the clothes that he was meant to clean.148 Even on account of these more general avenues for obtaining redress, the victim of a wrong was therefore well protected. But there was yet another action in his armoury of remedies, tailored more specifically to the case of theft: the condictio ex causa furtiva. Just like the rei vindicatio, it was at the disposal of the owner of the object stolen,149 and thus it differed in one important respect from all the other condictiones. "Si paret Nm Nm A° A° . . . dare oportere" (the intentio of the condictio) was normally taken to refer to situations where the defendant had (without good reason) acquired ownership and was now obliged to retransfer it to the plaintiff.150 The thief, however, as a result of his theftuous behaviour, had not, of course, acquired ownership. Gaius recognized the anomaly of the situation and attributed the rather peculiar use to which the condictio was put to the hatred of thieves. "[P]lane odio furum", he said,151

"quo magis pluribus actionibus tcneantur, receptum est ut, extra poenam dupli aut quadrupli, rei recipiendae nomine fares etiam hac actione tcneantur: si paret cos dare oportere, quamvis sit etiam adversus eos haec actio qua rem nostram csse petimus."

Whether or not this speculation as to why the condictio was thus extended is soundly based,152 it is clear that the condictio ex causa

144 ". . . neque ca res arbitrio tuo restituetur": the clausula arbitraria. 14:1 Like all other actiones in rcm: lust. IV, 6, 17.

146Gai. IV, 7.

147Supra, note 13.

14M Cf. supra, note 15. Generally on the relationship between contractual liability and redress for furtum in locatio conductio, and on their interplay, seej. A.C. Thomas, "Furtum and locatio conductio", (1976) 11 The Irish jurist 170 sqq.

144 Ulp. D. 13, 1, 1 ("In furtiva re soli domino condictio competit"). For further details, see

Wolfram Pika, Ex causa furtiva condicere im klassischeti romischen Recht (1988), pp. 35 sqq.

15(1 Cf., for example, supra, pp. 6. 835. 15' IV, 4.

152 For a discussion, see Pika, op. cit., note 149, pp. 20 sqq. It is likely that the condictio was extended to cases of furtum at a time when "dare oportere" had not yet acquired the technical meaning of "to have to transfer ownership". Cf. further Pernice, Labeo, vol. I l l, p. 233; Schwarz, Condictio, p. 278; Roy Stone, "Gaius noster and 'Res nostra' ", (1966) 83 ZSS 357 sqq.; Kascr, RPr I, p. 618; but cf. also Liebs, Klagenkonkumnz, pp. 96 sq.

Created with novaPDF Printer (www.novaPDF.com)

furtiva was generally recognized in classical law.153 Unlike the actio furti, but just as the rei vindicatio, it was reipersecutory in character ("Poenam tantum persequimur . . . actione furti . . .; nam ipsius rei et vindicatio et condictio nobis competit").154 It was available in cases of manifest and non-manifest theft,155 provided, of course, the thief had dispossessed the owner156 and the latter had not, in the meantime, regained possession of the object stolen.157 Under a condictio ex causa furtiva a thief was liable even if he had lost what he had stolen or if it had been accidentally destroyed. This was already recognized by the veteres, as Tryphoninus reports:

"Licet fur paratus fucrit excipere condictioncm et per me steterit, dum in rebus humanis res fucrat, condicerc cam, postea autem pcrem pta est, tamen durare condictioncm veteres voluerunt, quia videtur, qui prima invito dom ino rem contrectaverit, semper in restituenda ea, quam nee debuit auferre, moram facerc. "15S

A thief was always considered to be in default ("fur semper in mora"), and all the consequences of mora debitoris were thus applicable to him without interpellatio.159 Herein lay the main advantage of the condictio in comparison with the rei vindicatio; for the rei vindicatio, being a

remedy in rem, was bound to fail wherever the defendant no longer had the object of the dispute.160

4. Concurrence of actions

Determination of the concurrence of all the various actions available in case of theft was reasonably straightforward. Any of the actiones poenales could be brought together with any of the reipersecutory remedies. Thus, the actio furti could be cumulated with either the rei vindicatio or the condictio ex causa furtiva or a contractual action.161 As a result, the plaintiff had the chance to obtain, in cases of furtum nee

1э"э Possibly not under that name, though: Schwarz, Condictio, p. 53; Pika, op. cit., note 149, pp. 21 sq.

154 Gai. IV, 8; cf. also lul./Ulp. D. 11, 3, 11, 2 (". . . quamvis enim condictione hominem, poenam autem furti actione consecutus sit11); Ulp. D. 13, 1, 7, 1; Pika, op. cit., note 149, pp. 28 sqq.

155Ulp. D. 13, 1, 10 pr.

156Pomp./Ulp. D. 47, 2, 21, 10: "Quamvis autem earum quoque rerum, quas quis non abstulit, furti teneatur, attamen condici ei non potest, idcirco quia condici ea res, quae ablata

est, potest: et ita Pomponius scribit."

157Ulp. D . 13, 1, 10 pr.

158D. 13, 1, 20.

b9 Liebs, KlagettkoYikttrrenz, pp. 136 sqq.; Pika, op. cit. , note 149, pp. 30 sqq.

160Apart from that, the plaintiff did not (as under the rei vindicatio) have the notoriously difficult task of proving his quiritary ownership. A third point was that, as a result of "fur semper in mora", the defendant was condemned into the highest value that the object had had since the commission of the theft (i.e. the plaintiff was indemnified for lucrum cessans): Ulp. D. 13, 1, 8, 1; Paul. D. 13, 1, 13; Tryph. D. 25, 2, 29. For condemnation under the rei vindicatio the time of litis contestatio was relevant. On the advantages of the condictio ex causa furtiva, cf. generally Gluck, vol. 13, pp. 212 sqq.; Pieter Pauw, "Historical Notes on the Nature of the condictio furtiva", (1976) 93 SALJ 396.

161Gai. D. 47,2, 55, 3; Ulp. D. 13, 1, 7 pr. and 1; Levy, Konkumnz, vol. I, pp. 416 sqq.,

428 sq.; Liebs, Klagenkonkurrenz, pp. 91 sqq.; Pika, op. cit., note 149, p. 108.

Created with novaPDF Printer (www.novaPDF.com)

manifestum, three times—and, in the event of furtum manifestum, even five times—the value of the object stolen. Rei vindicatio, condictio ex causa furtiva and (if available) a contractual claim, on the other hand, stood in a relationship of elective concurrence towards each other; once either of these remedies had been brought, the plaintiff's legitimate interest in receiving compensation had been satisfied and another lawsuit ad rem persequandam was thus out of the question.162 Finally, it need hardly be emphasized that the penal actions could not be cumulated either.163

III.FURTUM IN THE IUS COMMUNE

1.The demise of the actio furti

Very little of the Roman law relating to furtum has made its way into our modern legal systems.164 Theft is today a crime, and its history is part and parcel of the history of criminal law. Even in classical Roman law the availability of private penal remedies was already a matter more of theoretical than of any practical significance, for thieves, as Thomas165 aptly remarks, are not generally well endowed with this world's goods; and to expect them to pay two-, threeor fourfold the value of the object stolen (apart from the simple value or quod interest on account of one of the actiones ad rem persequendum) must often

163 For the technical details, sec Pomp. D. 47, 2, 9, 1; Levy, Konkurrenz, vol. II, pp. 90 sqq.; Pika, op. dr., note 149, pp. 109 sqq.

1 '■ If a wife, in view of an imminent divorce, had stolen something from her husband, a special actio rerum amotarum (here the edict used the term "amovere" as opposed to merely "contrectare") was made available by the praetors to the husband (in classical law wives enjoyed the same protection against thefts by their husbands). It was a purely reipcrsecutory remedy and appears to have been introduced because theft was regarded as conceptually impossible between husband and wife (". . . quibusdam existimantibus ne quidem furtum earn [i.e.: the wife] facere, ut Ncrva Cassio, quia societas vitae quodammodo dominam cam faceret": Paul. D. 25, 2, 1). The actio rerum amotarum thus replaced both the actio furti and the condictio ex causa furtiva. Later, however, it was argued that theft was in fact possible in this situation, but that the matrimonial reverence owed by the spouses to each other prevented them from suing each other with the actio furti, a remedy which was penal and entailed infamia (". . . aliis, ut Sabino et Proculo, furto quidem cam facere . . . . sed furti non esse actionem constitute» iure . . . nam in honorem matrimonii turpis actio adversus uxorem negatur": Paul. D. 25, 2, 1 and Gai. D. 25, 2, 2). This docs not, however, explain why the condictio ex causa furtiva should have been excluded between husband and wife; in fact, it may well have become available as an alternative remedy (perhaps only through Justinian's intervention) to recover the stolen property. Whether or not the condictio ex causa furtiva may be brought by spouses against each other has always remained disputed (cf., for example, Gliick. vol. 28, pp. 48 sq. on the one hand, Windscheid/Kipp, § 454, n. 24 on the other). Those who answered the question in the affirmative usually argued that the actio rerum amotarum had been abrogated by disuse, since it did not give the spouse anything over and above what he could obtain by the condictio (Wmdscheid/Kipp, loc. cit.). For all details on the development and scope of application of the Roman actio rerum amotarum, see Andreas Wacke, Actio rerum amotarum (1963), passim; Liebs, Klayenkonkiirrenz, pp. 146 sqq.; Kaser RPr I, pp. 618 sq.; idem, RPr II, p. 436, M For an example, cf. supra, p. 939 (with note 132).

ш TRL, p. 360.

Created with novaPDF Printer (www.novaPDF.com)

have been rather illusory.166 With the rise of the cognitio extraordinaria167 the emphasis, as far as the suppression of theft was concerned, shifted decisively in favour of criminal proceedings.168 In a way, therefore, the concluding fragment 93 is historically the most significant of all the texts collected in title D. 47, 2, De furtis; over all our discussions about private remedies and their various incidents we must not forget, warns Ulpian, that by now "furti plerumque criminaliter agi et eum qui agit in crimen subscribere".169 According to Julian (who wrote nearly a century earlier), the institution of criminal proceedings even had the effect of precluding the injured party from bringing the actio furti and thus exposing the thief to the danger of being penalized more than once.170 Justinian preserved the private penal actions,171 and since they featured so prominently in both his Digest and the Institutes, they were bound to become part of the Romancanon ius commune that was received in Germany.172 But neither Justinian nor any of the post-reception jurists, mapping out and analysing the Roman law of furtum,173 could halt the ascendancy of criminal penalties for theft. By the end of the Middle Ages, the suppression of crime and imposition of punishment had become essential functions of the State authorities,174 and in the famous Constitutio Criminalis Carolina of 1532 theft was therefore no longer regarded as a private wrong but as a public crime. Duplum and quadruplum were still preserved as penalties (though only for two

166Cf. also Kelly, Roman Litigation, pp. 162 sq. (". . . the classical actio furti . . . must have been in practice a fairly useless remedy").

167Cf., for example, Mommscn, Strafrecht, pp. 260 sqq., 346 sqq, and passim; A.H.M. Jones, The Criminal Courts of the Roman Republic and Principate (1972), pp. 107 sqq.; Jolowicz/Nicholas, pp. 401 sqq. Some thefts were public offences already under Republican law—for example, plagium (kidnapping: D. 48, 15; Mommsen, Strafrecht, pp. 780 sqq.;

Berger, ED, p. 632) and abigeatus (cattle-rustling; D. 47, 14; Mommsen, Strafrecht, pp. 775 sq,)—many others were added under the Principate (on furtum balneanum, theft committed in a bath-house, see D. 47, 17; on the crimen cxpilatae hercditatis, 15. 47, 19; Mommsen, Strafrecht, pp. 777 sqq.; Berger. ED, p. 418); generally cf. Mommsen, Strafrecht, pp. 733 sqq., 760 sqq.; cf. also Jolowicz, op. cit., note 12, pp. Xll sqq.

lf>H For a similar process in the history of the early common law, cf. Pollock and Maitland, vol. II, pp. 157 sqq., 494 sq.

lr'9 Genuine, according to Kaser. RPr I, p. 617; idem, RPr II, p. 435.

17(1 D. 47, 2. 57, 1 (suspected by Jolowicz, op. cit., note 12. pp. 8f> sq. and others).

171He even emphasized that it was open to the victim of a theft to resort to civil rather than criminal proceedings: cf. I). 47, 2, 93 in fine (interpolated: Kaser, RPr I, p. 435).

172They were not received in France: cf. Auguste Dumas, Histoire des obligations dans I'ancien droit fraticais (1972), pp. 33 sq.; Coing. pp. 506 sq.

173Cf. VerLoren van Themaat, op. cit., note 33, pp. 38 sqq.; Snyman, op. cit.. note 39,

PP45 sqq.

Cf., tor example, Gudelinus, Commetitani de iure novissimo , Lib. III. Cap. XIII, n. 18 (". . . fisco solo poenas ob vindictam publicam iudicio criminati persequentc"). On the factors militating against dealing with crime by way of delicta pnvata in general, cf. Coing, pp. 504 sqq. On the history (and eventual decline) of the poena dupli generally, see Karl Otto Schemer, "Der doppelte Fahrpreis oder dcr Geist des dcutschen Privatrechts", in: Wege europdischer Rechtsgeschichte, Karl Kroeschel! zum 60. Geburtstag (1987), pp. 361 sqq., 367 sqq.

Created with novaPDF Printer (www.novaPDF.com)

different forms of petty theft),175 but it was no longer the private actio furti by means of which they were enforceable. Whether the latter remedy was still available as an alternative way of proceeding against the thief remained in dispute for some time. Lauterbach and Stryk were among the last influential writers who advocated the survival of the Roman actio furti, the one, however, conceding that it was "hodie in quibusdam locis abrogata, in alhs infrequens",176 the other suggesting ("Illud interim juris hodierni esse puto") that the duplum was no longer "mera poena" but had to be taken as embracing "ipsam rei restitutionem".177 Among the "quidam loci" in which the remedy was abrogated were, most notably, Belgium178 and Holland.179 In the course of the 18th century this view gained ground in Germany too,180 and it was widely accepted even by the 19th-century pandectists.181 If the actio furti was retained by the one or other textbook writer, it was in a purely reipersecutory function and in order to compensate for certain (alleged) weaknesses inherent in the other private remedies.182

2. The history of the modern concept of theft

Apart from endorsing duplum and quadruplum as two suitable forms of penalty, the Constitutio Criminalis Carolina dealt with theft in the tradition of Germanic law. The severity of the punishment must be mentioned in this context,183 as well as the distinction between petty theft and furtum magnum,184 and (possibly) also the further distinction

l7r> Artt. 157, 158. In the case of art 157 the thief was, however, liable to be incarcerated if he could not pay the duplum (in accordance with the maxim "qui non habet in acre, luat in corpore"; cf. Ulp. D. 48, 19, 1, 3 in fine); according to art. 158, condemnation in quadruplum was applicable only if the thief was a respectable person and provided one could expect him to improve his ways (otherwise the penalties were pillory, whipping and banishment). Neither the duplum nor the quadruplum appears to have been applied in practice: cf. H. Holzhauer, HRG, vol. Ill, col. 1996.

17(1 Lauterbach, Collegium theoretko-practicum. Lib. XLVII, Tit. I, XLV1I.

177Stryk, Usus mademus pandectamm. Lib. XLVII, Tit. I, § 1.

178Cf. Gudelinus, op. at., note 174, Lib. Ill, Cap. XIII: ". . . omnes actiones apud nos

reipersecutorias esse dicendum cst earumque omnium conceptionem esse in simplum."

79 As far as Holland was concerned, cf. Groenewegen, De iegibus abrogatis, Inst. Lib. IV,

Tit. I, § 5 poena; Voet, Commentarhis ad Pandectas, Lib. XLVII, Tit. II, XV.

iao At the same time, the distinction between manifest and non-manifest theft became obsolete.

181Wachter, Pandekten, § 214; Windscheid/Kipp, § 453, 2.

182rjcrnburg, vol. II, § 130 in fine; cf. also Amdts, Pandekten, § 323 in fine.

-Originally, every act of theft carried capital punishment. According to art. 160 CCC (dealing with furtum magnum) the judge was no longer obliged to impose the death penalty. For details cf. Janssen, op. cit., note 109, pp. 91 sqq. For England cf. Stephen, op. cit., note 9, p. 129; Pollock and Maitland, vol. II, pp. 495 sqq.

184 Cf. artt. 157 sq. as opposed to art. 160 CCC. For a definition, cf., for example, Lauterbach, Collegium theoretico-praaicum. Lib. XLVII, Tit. II, XII ("Ab Objecti quantitate in Magnum, secundum Const. Car. quod 5 solidos vel aureos eorumve aestimationem continet, vel excedit; et Parvum, quod est intra illam summam"); for a discussion of the distinction and its historical foundations, seejamsen, op. cit., note 109, pp. 68 sqq., 82 sqq. For England, where "both an old English and an old Frankish tradition may have conspired

Created with novaPDF Printer (www.novaPDF.com)

between "secret" and "public" (manifest and non-manifest)185 theft. Most interesting, however, from a purely dogmatic point of view was the fact that "theft" (though undefined) was much more narrowly conceived than the Roman furtum; in particular, it did not cover cases of embezzlement.186 Again, this was in line with the Germanic concept of the crime, which had always emphasized the element of the actual removal of an object from another person's custody.187 It is somewhat surprising to see how slowly legal doctrine followed suit.188 Even after the Carolina had firmly entrenched the notion of theft as a crime, the writers of the ius commune—private-law oriented as they were— continued to base their discussion on Paulus' definition and on the case law of the Digest and thus to equate, or rather confuse, the Roman delict of furtum with the Germanic crime of theft.18y Only in the early

to draw the line between 'grand' and 'petty larceny' at twelve pence", see Pollock and Maitland, vol. II, pp. 495 sqq.; Holdsworth, vol. Ill, pp. 366 sq.

lib This distinction related only to petty theft and it determined whether the thief had to pay duplum or quadruplum: see artt. 157 sq. CCC, Whether it derived (via the Italian jurisprudence) trom Roman law or from Germanic roots is disputed: cf. Janssen, op. cit., note 109, pp. 6H sq. It appears that already by the beginning of the 17th century the distinction was no longer observed in practice. Some authors even claimed that manifest theft deserved to be punished more mildly, not more severely, than non-manifest theft; among these authors were Carpzov, who argued (on the basis of the theory of ablatio; on which cf. supra, p. 939) that manifest theft was tantamount merely to attempted theft, and Johann Paul Kress, who drew attention to the fact that the manifest thief did not usually cause any damage, since he was able to return the object stolen: cf. Janssen, op. cit., note 109, pp. 71 sq.

186C(. art. 170 CCC e contrario.

187Cf. R. Lieberwirth, "Oicbstahl", in: HRGt vol. I, 1971, col. 730 sq.; Snyman, op. cit.,

note 39, pp. 55 sqq. This view of theft prevailed throughout the history of the English common law: "There can . . . be little doubt that the 'taking and carrying away', upon which our later law insists, had been from the first the very core of" the English idea of theft. 'He stole, took and carried away': this is the charge made against the thief." Even Bracton's definition of the crime in terms of contrectatio (cf. supra, p. 923, note 10) did not change that, for the notion of contrectatio was "narrowed down to the case where there has been an actual physical change of possession effected by the act of the thiet without the consent of the person entitled to the goods" (Holdsworth, vol. Ill, p. 361); cf, further Stephen, op. cit., note 9, pp. 134 sqq. In the same vein, the Larceny Act of 1916 still provided that "a person steals who, without the consent of the owner, fraudulently and without a claim of right made in good faith, takes and carries away anything capable of being stolen with intent, at the time of such taking, permanently to deprive the owner thereof". The expression "carries away", it was further specified, "includes any removal of anything from the place which it occupies, but in the case of a thing attached only if it has been completely detached". This definition of theft obviously did not include embezzlement, which, in turn, was made a separate crime in 1799 (with regard to servants or clerks; later extended to other persons too). For details, see Stephen, op. cit., note 9, pp. 152 sqq.; Plucknett, History, pp. 449 sqq. and s. 17 of the Larceny Act of 1916. The Theft Act of!968, however, has redefined theft so as to include (inter alia) embezzlement; it no longer requires an act of asportation but refers, instead, to the dishonest appropriation of property belonging to another. For details, see Smith, op. cit., note 4, nn. 17 sqq.

188 Friedrich Schaffstein, Studien zur Entwicklung der Deliktstatbestande im Gemeinen Deutsche» Strafrecht (1984), p. 35.

184 For a discussion, see Janssen, op. cit., note 109, pp. 4 sqq.

Created with novaPDF Printer (www.novaPDF.com)

17th century190 did it dawn upon them that the wide Roman definition might not provide an entirely satisfactory framework for the stiff sanctions of contemporary criminal law. Decapitation is hardly the

appropriate penalty for a man who takes a borrowed horse beyond the town where he was meant to take it!191

The decisive step, as far as German jurisprudence was concerned, was taken by the Saxonian professor and practitioner, Benedict Carpzov.192 Though still proceeding from the Pauline notion of contrectatio, he advocated a distinction between two different types of "handling". The poena ordinaria furti was to be confined to cases involving contrectatio vera, and contrectatio vera, in turn, was characterized by an ablatio rei alienae. Where, on the other hand, one was merely dealing with a contrectatio ficta (that is, a translatio ad alium usum contra voluntatem domini), a milder form of punishment was called for. This doctrine soon gained widespread acceptance and provided the starting point for the development of a differentiated system of more precisely defined forms of criminal behaviour that took place over the next 250 years. Theft was eventually defined along the lines of the Germanic crime193 and so became entirely detached from the Roman notion of furtum. Within the area thus vacated, crimes such as embezzlement, fraud and receiving stolen property established themselves.144 Furtum usus and furtum possessionis as such195 were eventually taken not to require any criminal sanction at all; they were regarded as a breach of (private) trust rather than an infringement of the public order.

3. The condictio ex causa furtiva

With the demise of the actio furti private law was left with the task of protecting the interest "ad rem persequendam" of the injured individual by granting either restoration or compensation. The rei vindicatio and (where appropriate) contractual actions remained, of course, available for that purpose. But these were remedies of a general nature, the availability of which did not depend on whether or not a

" That is, at the very time when public law (of which criminal law is a prominent part; cf. Ulp. D. 2, 1, 3) emerged as a scientific discipline in its own right—a process which has recently been analysed by Michael Stolleis, Geschichte des offentlichen Rechts in Deutschland, vol. 1 (1988).

141 Cf. the observation by Vinnius, Itistitutiones, Lib. IV, Tit. I, 6, based on the example discusse d in Paul . D . 47, 2, 40.

192Practica nova, op. cit., note 8, Pars II, Quacst. LXXXV, 1; for a discussion of

Carpzov's doctrine (and also of his fellow Saxonian Matthias Berlich's work, on which it was based), seejanssen, op. cit., note 109, pp. 8 sqq., 13 sqq.

193For details of the development, seejanssen, op. cit., note 109, pp. 17 sqq., 26 sqq., 42 sqq.; cf. also Lieberwirth, op. cit., note 187, col. 733 sqq.

14Cf. supra, p. 922; for the development in England (where the narrow, Germanic

concept of theft had always been adhered to), see Stephen, op. cit., note 9, pp. 145 sqq.; Plucknett, History, pp. 446 sqq.

195 That is, where they did not at the same time fulfil the requirements of any of the other crimes (as, for example, fraud).

Created with novaPDF Printer (www.novaPDF.com)

delict of theft (however defined) had been committed. The concept of furtum therefore retained its significance only with regard to the condictio ex causa furtiva; and the ambit of this remedy continued, indeed, to be described in terms of Paulus' definition right until the end of the 19th century.196 But the whole discussion had become a typical example of pandectist textbook jurisprudence. Hovering forever uneasily somewhere between the fields of delict and unjustified enrichment,147 the condictio ex causa furtiva was about to be swallowed by both the usus modernus legis Aquiliae and the generalized enrichment action. In the opinion of the fathers of the BGB, at any rate, it had lost its practical significance and was therefore denied entry into the code,198 As a result, theft has ceased to be a specific institution of private law, and all questions as to its proper scope of application have become a matter of purely academic interest. A person whose property is unlawfully interfered with enjoys comprehensive protection, both under § 823 I BGB199 (compensation for any damage arising) and under § 812 I I200 (restoration of unjustified enrichment arising as a result of interference).

IV. SOUTH AFRICAN DEVELOPMENTS

1. The concept of theft in criminal law

South African law, as usual, still maintains a somewhat closer link with the tradition of the ius commune. On the one hand, theft is still a common-law crime. It is based on the Roman-Dutch notion of furtum, which is, in turn, essentially still that of Paul. D. 47, 2, 1, 3.201 Over the last 150 years, however, the old, pre-1968 English law202 has exercised considerable influence203 and eroded some of the civilian

196Gluck, vol. 13, pp. 229 sqq.; Wachtcr, Pandekten, § 214; Windscheid/Kipp, § 452.

197On the nature of the condictio ex causa furtiva, cf. Pika, op. cit., note 149, pp. 102 sqq.; Gluck, vol. 13, pp. 230 sqq.; Pauw, (1976) 93 SALJ 396 sqq.; Windscheid/Kipp,

§§425, 453, 1; Baron, Pandekten, § 311. II.

198"Motive", in: Mugdan, vol. II, p. 475.

199Infra, p. 1036; cf. also Hugo Grotius, lnleiding, III, XXXVII, drawing together damage to property and theft under the heading of "misdaed tegens goed" (on which see

Stnit v. Saipem 1974 (4) SA 918 (A) at 929 sq.). 2(X1 Cf. supra, pp. 889 sq.

201For a detailed analysis of Roman-Dutch law, cf. VerLoren van Themaat, op. cit., note 33, pp. 61 sqq.; cf. also Snyman, op. cit., note 39, pp. 61 sqq. The main respect in which the Roman-Dutch crime of theft appears to have differed from the Roman delict of furtum was that depositaries, borrowers, pledgees, etc., exceeding their contractual rights in respect of the thing, were not liable "moribus nostris" to criminal prosecution; reason: "quasi minores sint tales a pudorc recessus, quam ut infamiae et corporali subjacerent coercitiom" (Voet, Commentarius ad Pandectas, Lib. XLVII, Tit. II, XV); cf. also Groenewegen, De legibus abrogatis, Inst. Lib. IV, Tit. I, § 7 placuit; Vinnius, Institutiones, Lib. IV, Tit. I, 6; but see also the analysis by VerLoren van Themaat, op. cit., note 33, pp. 132 sqq.

202Cf. supra, note 187.

203An important catalyst in this reception process was the Native Territories' Penal Code of 1886 (applicable in Transkei). Its definition of theft (copied from Sir James Fitzjames

Created with novaPDF Printer (www.novaPDF.com)

foundations.204 Among the "tattered remnants"205 is, most prominently, the factual element of contrectatio. It vaguely insinuates some kind of "dealing" with the property; but what precisely it entails is entirely unclear—as unclear, in fact, as it was even in Roman law.206 Is a mere touching of the thing sufficient?207 Or does contrectatio imply an assumption of control on the part of the thief?208 Does the victim of the theft have to be deprived of his control?204 Must there be an actual physical handling or does an act which is "tantamount to a physical dealing with the property by the thief or at his instance and in his presence"210 suffice for conviction under a charge of theft?211 Occasionally, it has even been suggested that "the taking and removal of the stolen property" is necessary.212 "Few parts of criminal law", says Milton,213 "present as much difficulty as contrectatio", and the

Stephen's draft Criminal Code) was substantially adopted by the most prominent South African textbook (Gardiner and Lansdowne, p. 1082) when it first appeared in 1919. In the same year, the definition was adopted by Kotze JP in R v. Siboya 1919 EDL 41 at 43 sq. KotzeJP (one of the most influential judges in the late 19th and early 20th centuries) seems to have had a particular predilection "om ons gemene reg oor diefstal in die [Transkeian Penal Code] te soek" (De Wet en Swanepoel, op. cit., note 1, p. 311; cf. also pp. 313 sq.). For another prominent example of this tendency, cf. R v. Carehe and Kay 1920 CPD 471 at 474 (per KotzeJP), where s. 180 of the Native Territories' Penal Code is referred to as authority for the proposition that theft requires actual asportation.

204For a concise summary of where South African courts have followed and where they have refused to follow English law, cf. Milton, op. cit., note 1, pp. 601 sqq. According to

j.C. de Wet (De Wet en Swanepoel, op. cit., note 1, p. 307), this partial reception of English law has turned theft into " 'n byna onhanteerbare regsfiguur". "So seer is dit die geval", hecontinues, "dat daar vandag op hierdie terrein omtrent geen reel is waaroor daar duidelikheid en censtemmigheid bestaan nie."

205Percivat Gane, The Selective Voet, vol. VII (1957), p. 150.

206Cf., in this context, the remarks by MacCormack, quoted supra, note 39.

207Cf. R v. Tarusika 1959 (1) R & N 51 (SR) at 51-2, where contrectatio is defined as a mere "touching or handling [of] the thing with a view to its asportation". Contra ("[a] mere touching of the thing is not enough") Milton, op. cit., note 1, p. 607 ; cf. also VerLoren van Themaat, op. cit., note 33, p. 71 (". . . uit ons hofbeslissmgs blyk dat blote aanraak nie

voldoende is nie maar hantccr vcreis word"). 2(№f Milton, op. cit., note 1, pp. 607 sq.

2m De Wet en Swanepoel, op. cit., note 1, pp. 308 sqq.; contra: Milton, op. cit., note 1,

p.608.

210R v. Makonit 1942 OPD 164 at 165.

211According to R P. Strydom 1952 (2) SA 397 (T) at 399H-400A, in the case of theft of

money the manipulation of cheques or a book entry may constitute a contrectatio even without the actual physical handling of any individual coins; but "[w)hen it comes to theft of an individual object such as a beast . . . the rule still seems to be that there must be an actual physical dealing with the thing concerned or some conduct which is akin to physical handling. As an example of the latter type may be mentioned the case where a bird or animal the property of another is enticed into an enclosure and captured and appropriated". Contra:

Milton, op. cit., note 1, p. 607.

212 Cf. R v. Nerera 1939 SR 297 at 299; R v. Carehe and Kay 1920 CPD 471 at 474 (both under the influence of English law; cf. s. 1 of the Larceny Act of 1916). Contra: Moodley v. Я (1914) 35 NLR 514 at 519; Я с. Mlooi \92S AD 131 at 152; Milton, op. cit., note 1, pp. 606 sq.; Snyman, op. cit., note 39, p. 209. English law itself has now abandoned this criterion.

~13 Op. cit,, note 1, p. 603. Cf. also the detailed discussion (33 pages) by VerLoren van Themaat, op. cit., note 33, pp. 66 sqq. (whose work also contains a valuable analysis of

Created with novaPDF Printer (www.novaPDF.com)

retention of this rather ambiguous and indistinct notion of the Roman law of delict and its transformation into a key element of the modern crime of theft was not, probably, a very happy idea. The equally unspecific subjective requirement of lucri faciendi gratia is the most notable victim of the partial anglicization of the South African law of theft.214 It has been replaced by the intention to deprive the owner of the full benefits of his ownership.215 As a result, mere furtum usus no longer constitutes theft. This was generally accepted216 until 1948 when the Orange Free State Provincial Division attempted to turn back the clock, at least as far as cases of unauthorized borrowing were concerned.217 The court acknowledged that even (at least some of) the Roman-Dutch authors, motivated by a desire to circumscribe the range of application of the harsh post-medieval penalties for theft,218 regarded furtum usus as not punishable. But they had confined their remarks to the standard examples discussed in the Digest: cases of furtum usus characterized by the fact that the fur exceeded certain rights in respect of a thing that had previously been conveyed to him. A person therefore still committed theft, so it was argued, if he took away somebody else's property with the intention of using it for a certain period before eventually restoring it. This proposition was, however, rejected by the Appellate Division in R v. Sibiya,219 the decision that authoritatively settled the common law in favour of the "intention to deprive permanently" test: in the words of Schreiner AC],220

"[T]he law requires for the crime of theft . . . that the taker should have intended to terminate the owner's enjoyment of his rights or, in other words, to deprive him of the whole benefit of his ownership."

If furtum usus falls outside the scope of the modern South African law of theft, its definition is nevertheless still wide enough to cover

contrectatio in Roman law: pp. 8 sqq.). Dc Wet (De Wet en Swanepoel, op. cit., note t, p. 311) argues that already in Roman law contrectatio was " 'n uitgediende uitdrukking

sonder *n spesifieke betekenis".

214 R v. Siboya 1919 EDL 41 at 43 sq.; Milton, op. cit., note 1, pp. 621 sqq.; Snyman, op. cit., note 39, pp. 222 sqq.; but sec VerLoren van Themaat, op. cit., note 33, pp. 125 sqq. English law itself has toyed for some time with the idea of including lucri faciendi gratia into the definition of theft (cf. Blackstone, Commentaries, Book IV, chapter XVII, I and the discussion by Snyman, op. cit., note 39, pp. 167 sqq.); it was rejected only in the case of R v. Cabbage (1815) Russ & Ry 292.

215Cf. the analysis by Milton, op. cit., note 1, pp. 616 sqq.; Snyman, op. cit., note 39, pp. 235 sqq.; but see also De Wet en Swanepoel, op. cit., note 1, pp. 312 sqq., who argue

that the essential requirement is "die bedoeling van die dader om horn die goed toe te eien". 216 Cf, for example, R v. Fortuin (1883) 1 Buch AC 290 (theft of the use of an ox is not

a crime).

217R v. Mtaung 1948 (4) SA 120 (O).

218Cf. supra, p. 945 (with note 183).

2191955 (4) SA 247 (A).

220R v. Sibiya 1955 (4) SA 247 (A) at 257C. The decision contains a very interesting dissenting opinion by Van den Heever JA (at pp. 257E sqq.).

Created with novaPDF Printer (www.novaPDF.com)