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p563 Furtum

Article by George Long, M.A., Fellow of Trinity College
on pp563‑564 of

William Smith, D.C.L., LL.D.:
A Dictionary of Greek and Roman Antiquities, John Murray, London, 1875.

FURTUM, "theft," is one of the four kinds of delicts which were the foundation of obligationes; it is also called "crimen." Moveable things only could be the objects of furtum; for the fraudulent handling (contrectatio fraudulosa) of a thing was furtum, and contrectatio is defined to be "loco movere." But a man might commit theft without carrying off another person's property. Thus it was furtum to use a thing which was deposited (depositum). It was also furtum to use a thing which had been lent for use, in a way different from that which the lender had agreed to; but with this qualification, that the borrower must believe that he was doing it against the owner's consent, and that the owner would not consent to such use if he was aware of it; for dolus malus was an essential ingredient in furtum. Another requisite of furtum (Dig. 47 tit. 2 s1) is the "lucri faciendi gratia," the intention of appropriating the property. This was otherwise expressed by saying that furtum consisted in the intention (furtum ex affectu consistit; or, sine affectu furandi non committitur, Gaius, II.50). It was not necessary, in order to constitute furtum, that the thief should know whose property the thing was. A person who was in the power of another might be the object of furtum (Inst. 4 1 §9). A debtor might commit furtum by taking a thing which he had given as a pledge (pignori) to a creditor; or by taking his property when in the possession of a bona fide possessor. Thus there might be furtum either of a moveable thing itself, or of the use of a thing, or of the possession, as it is expressed (Inst. 4 1 §1).

The definition of furtum in the Institutes is rei contrectatio fraudulosa, without the addition of the word "alienae." Accordingly the definition comprises both the case of a man stealing the property of another, and also the case of a man stealing his own property, as when a man fraudulently takes a moveable thing, which is his property, from a person who has the legal possession of it. This latter case is the "furtum possessionis." The definition in the Institutes is not intended as a classification of theft into three different kinds, but only to show by way of example the extent of the meaning of the term Furtum. This is well explained by Vangerow, Pandekten, &c. III. p550. See also Rein, Das Criminalrecht der Römer, p304.

A person might commit furtum by aiding in a furtum, as if a man should jostle you in order to give another the opportunity of taking your money; or drive away your sheep or cattle in order that another might get possession of them; but if it were done merely in a sportive way, and not with a view of aiding in a theft, it was not furtum, though there might be in such case an actio utilis under the Lex Aquilia, which gave such an action even in the case of culpa [Damnum.]

Furtum was either Manifestum or Nec Manifestum. It was clearly manifestum when the person was caught in the act; but in various other cases there was a difference of opinion as to whether the furtum was manifestum or not. Some were of opinion that it was furtum manifestum so long as the thief was engaged in carrying the thing to the place to which he designed to carry it; and others maintained that it was furtum manifestum if the thief was ever found with the stolen thing in his possession; but this opinion did not prevail (Gaius, III.184; Inst. 4 1 §3). That which was not manifestum was nec manifestum. Furtum conceptum and oblatum were not species of theft, but species of action. It was called conceptum furtum when a stolen thing was sought and found, in the presence of witnesses, in the possession of a person, who, though he might not be the thief, was liable to an action called Furti Concepti. If a man gave you a stolen thing, in order that it be found (conciperetur) in your possession, rather than his, this was called Furtum Oblatum, and you had an action Furti Oblati against him, even if he was not the thief. There was also the action Prohibiti Furti against him who prevented a person from searching for a stolen thing (furtum); for the word furtum signifies both the act of theft and the thing stolen.

The punishment for furtum manifestum by the law of the Twelve Tables was capitalis, that is, it affected the person's caput: a freeman who had committed theft was flogged and consigned (addictus) to the injured person; but whether the thief became a slave in consequence of this addictio, or an adjudicatus, was a matter in dispute among the ancient Romans. The Edict subsequently changed the penalty into an actio quadrupli, both in the case of a slave and a freedman. The penalty of the Twelve Tables, in the case of a furtum nec manifestum, was duplum, and this was retained in the Edict; for the law of the Twelve Tables had affixed no penalty in this case, but merely enacted that if a man would search for stolen property, he must be naked all but a cloth round his middle, and must hold a dish in his hand. If he found any thing, it was furtum manifestum. The absurdity of the law, says Gaius, is apparent; for if a man would not let a person search in his ordinary dress, much less would he allow him to search undressed, when the penalty would be so much more severe if any thing was found (cf. Grimm, Von der Poesie in Recht, Zeitschrift, vol. II p91).

The actio furti was given to all persons who had an interest in the preservation of the thing stolen (cuius interest rem salvam esse), and the owner of p564a thing, therefore, had not necessarily this action. A creditor might have this action even against the owner of a thing pledged, if the owner was the thief. A person to whom a thing was delivered in order to work upon it, as in the case of clothes given to a tailor to mend, could bring this action against the thief, and the owner could not, for the owner had an action (locati) against the tailor. But if the tailor was not a solvent person, the owner had his action against the thief, for in such case the owner had an interest in the preservation of the thing. The rule was the same in the case of commodatum [Commodatum]. But in a case of depositum, the depositee was under no obligation for the safe custody of the thing (custodiam praestare), and he was under no liability except in the case of dolus: consequently, if the deposited thing was stolen, the owner alone had the actio furti. A bona fide purchaser might have the actio furti, even if the thing had not been delivered to him, and he were consequently not dominus.

An impubes might commit theft (obligatur crimine furti), if he was bordering on the age of puberty, and consequently of sufficient capacity to understand what he was doing. If a person who was in the power of another committed furtum, the actio furti was against the latter.

The right of action died with the offending person. If a peregrinus committed furtum, he was made liable to an action by the fiction of his being a Roman citizen (Gaius, IV.37); and by the same fiction he had a right of action, if his property was stolen.

He who took the property of another by force was guilty of theft; but in the case of this delict, the praetor gave a special action Vi bonorum raptorum. The origin of the action Vi bonorum raptorum is referred by Cicero to the time of the civil wars, when men had become accustomed to acts of violence and to the use of arms against one another. Accordingly, the Edict was originally directed against those who with bodies of armed men (hominibus armatis coactisque) did injury to the property of another or carried it off (quid aut rapuerint aut damni dederint). With the establishment of order under the empire the prohibition against the use of arms was less needed, and the word armatis is not contained in the Edict as cited in the Digest (47 8). The application of the Edict would however have still been very limited, if it had been confined to cases where numbers were engaged in the violence or robbery; and accordingly the jurists discovered that the Edict, when properly understood, applied also to the case of a single person committing damnum or carrying off property. Originally the Edict comprehended both damnum and bona rapta, and, indeed, damnum which was effected vi hominibus armatis coactisque, was that kind of violence to the repression of which the Edict was at first mainly directed. Under the empire the reasons for this part of the Edict ceased, and thus we see that in Ulpian's time the action was simply called "vi bonorum raptorum." In the Institutes and Code the action applies to robbery only, and there is no trace of the other part of the Edict. This instructive illustration of the gradual adaptation, even of the Edictal law, to circumstances is given by Savigny (Zeitschrift, vol. V Ueber Cicero Pro Tullio und die Actio vi bonorum Raptorum), who has also given the masterly emendation of Dig. 7 tit. 8 s2 § 7, by Heise.

The object of the furti actio was to get a penalty as to the thing stolen: the owner could recover it either by a vindicatio, which was available against any possessor, whether the thief or another, or by a condictio, which was available against the thief or his heres, though he had not the possession (Inst. 4 1 §19).

The strictness of the old law in the case of actions of theft was gradually modified, as already shown. By the law of the Twelve Tables, if theft (furtum) was committed in the night, the thief, if caught in the act, might be killed: and he might also be killed in the daytime, it he was caught in the act and defended himself with any kind of a weapon (telum); if did not so defend himself, he was whipped and became addictus, if a freeman (as above stated) and if a slave, he was whipped and thrown down a precipice.

The following are peculiar kinds of actiones furti: (1) Actio de tigno juncto, against a person who employed another person's timber in his building; (2) Actio arborum furtim caesarum, against a person who secretly cut wood on another person's ground; (3) Actio furti adversus nautas et caupones, against nautae and caupones [Exercitor], who were liable for the acts of the men in their employment.

There were two cases in which a bona fide possessor of another person's property could not obtain the ownership by usucapion; and one of them was the case of a res furtiva, which was provided for in the Twelve Tables. The Roman Law as to Furtum underwent changes, as appears from what has been said; and the subject requires to be treated historically in order to be fully understood. The work of Rein (Das Criminalrecht der Römer) contains a complete view of the matter.

(Gaius, III.183‑209, IV.1; Gellius, XI.18; Dig. 47 2; Inst. 4 1; Dirksen, Uebersicht, &c. pp564‑594; Heinec. Syntag. ed. Haubold; Rein, Das Röm. Privatrecht, p345; Rein, Das Criminalrecht der Römer, p293).


See also the article Latrocinium.


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