THE DIGEST OF ROMAN LAW by Justinian

Author:Justinian
Language: eng
Format: epub
ISBN: 978-0-14-196136-1
Publisher: Penguin Books Ltd
Published: 2007-02-22T05:00:00+00:00

CONCERNING THEFT

BOOK 47, TITLE 2

1. (PAUL) Labeo says that the very word for theft (furtum) is itself derived from a Latin word meaning ‘black’, because it is committed secretly, in the dark and most often in the night; or it may be derived from a corruption of a word for fraud (fraus), as Sabinus said; or from the similar Latin words ‘to carry’ (ferre) and ‘to carry away’ (auferre); or it may come from the Greek language in which a thief is denoted by a similar-sounding word – and the Greeks themselves derive their own word for a thief (øώρ) from the verb ‘to carry’ (øέρlειν). Thus it is that the mere intention to steal does not make a man a thief, and accordingly a man who has received someone else’s property for safekeeping and then denies his obligation is not liable to an action for theft without more ado, though he is so liable if he conceals that property in order to appropriate it for himself.

Theft is a dishonest handling of a thing in order to gain by it or by its use or possession. Such conduct is against the very law of nature.

2. (GAIUS) There are two degrees of theft: manifest and non-manifest.

3. (ULPIAN) A manifest thief is one whom the Greeks describe as ‘caught in the very act’, that is, one who is caught with the stolen goods on him. It matters little who it is who actually catches him – whether it is the owner of the stolen goods, or anyone else. But it may be asked whether a thief is only a manifest thief if he is caught in the very act of stealing or indeed whether it is good enough that he be apprehended just anywhere. The better view – and this was Julian’s opinion – is that even if he is not caught in the place where he committed the theft, he is nevertheless a manifest thief if he is caught with the stolen thing on him before he has taken it to the place he intended.

4. (PAUL) ‘The place he intended to carry it to’ is understood as ‘the place where he intended to stop that day with the stolen thing’.

5. (ULPIAN) Therefore irrespective of whether he is caught in a public or in a private place, so long as he has not yet borne the thing to the place he was making for, the charge will be one of manifest theft if he is caught with the stolen thing on him: and that was the view of Cassius. But if he has got his loot home, even if he is caught with the stolen things in his possession, he is not a manifest thief.

6. (PAUL) For although theft may be committed many times over by successive handlings of the stolen goods, it was thought right to determine whether or not a theft was manifest at the time of the original thieving.

7. (ULPIAN) Let us consider whether a man who committed theft

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