Furthermore, in terms of furtum manifestum and furtum non manifestum, there is criticism in terms of the redress available in each instance. According to Nicholas, the distinction between furtum manifestum and furtum non manifestum was an "archaic feature" that "was strangely out of place in a system as sophisticated as Roman law15. " This was due to the fact that "the old savage penalty for manifest theft had now gone16" so that free men were no longer enslaved and slaves were no longer killed17 and this was replaced due to an Edict of the praetor by "an action for the quadruple value was established as well for slaves as for free persons18.
" However, the penalty for furtum non manifestum remained the same as that which was set out in the Twelve Tables which was for double the value. However, as is stated by Buckland, this meant that for the more serious act of furtum manifestum the civil penalty was only an actium in factum whereas for the lesser act of furtum non manifestum the penalty was an actio in ius19. Thus there would appear to be a contradiction in the seriousness of the act and the seriousness of the penalty.
One criticism of the law of theft voiced by Nicholas, is that a "thief in any society will not usually be solvent, or at least not provably solvent20", and the multiple penalties, such as the actio furti and condictio furtiva, in Roman Law were nothing more therefore than illusory because the thief would be unable to pay due to his insolvency. What's more, the penal nature of the remedies meant that the thief would have to pay twofold, threefold, fourfold etc. the value of the stolen res.
Another criticism of the law of theft is with regards to the condictio furtiva, – a quasi-contractual reipersecutory action in personam against a thief or his heirs- and the specific formula that it utilises. Thomas describes the condictio furtiva as "an illogical action in that the intention of a condictio asserted that the defendant ought to transfer ownership of a thing and a thief of course did not become owner of what he stole21. " Indeed Buckland too criticises the condictio furtiva because "it expressed a right on the part of the owner to have the ownership transferred to him: dare opertere.
22" Gaius makes reference to the anomaly of the condictio furtiva: "What is ours cannot be conveyed (dari) to us, since obviously dari means the giving of the thing with the effect of making it ours; but a thing which is already ours cannot be made more so23. " Gaius does justify the incongruous nature of the furtiva in saying it existed "out of hatred of thieves24. " A further criticism of the law of theft is the fact that there can be furtum but there could be no actio furti against the principal malefactor as when he was the fillius or slave of the victim of the theft25.
Furthermore, there could be no actio furti between spouses or in respect of furtia domestica. This is demonstrated in Justinian: "If those who are in power of ascendants or masters steal a thing from them, they are guilty of stealing from them, and the thing falls under the head of stolen property, but an action for theft does not lie, because no action on any ground can arise between them. 26" It must be noted that if the principal malefactor had accomplices (ope et consillio) then the actio furti could be brought against them27.
What's more, the Roman law of theft can be criticised by its retaining of such archaic features as the actio furti concepti, actio furti oblati and actio furti prohibiti in Gaius28 after the disappearance of the furtum lance lioque conceptum in the 2nd century B. C29. This is because they were all made obsolete by the time of Justinian who says, "therefore, these actions have very properly ceased to be in common use, and it is abundantly clear that all who have knowingly received and concealed stolen property are liable to the action for non-manifest theft30. "
Finally, I wish to criticise the view taken by institutes that rapina is a separate delict to furtum for it is actually sub-section of the law of furtum. Indeed Nicholas describes rapina as "simply theft with the added element of violence31" and Thomas claims that 'the principles of rapina were essentially those of furtum, requiring a contrectatio fraudulosa of res mobiles of which someone was owner32. ' Hence, if rapina does come under the law of furtum, which I believe it should then I would also criticise the actio vi bonorum factum introduced by M. Lucullius in 76 B. C which led to rapina becoming a delict in itself33.
The actio vi bonorum factum lay for four times the value of the thing if the action was brought within a year but according to Thomas there was little point in using it after a year because one could only claim the value of the thing, making actio furti more lucrative34. Indeed, even during the year, if the theft had been manifest then it would still be more advantageous to use the actio furti; this is because actio vi bonorum was viewed by Justinian as mixed and hence both reipersecutory and penal so it barred any further reipersecutory measures whereas actio furti did not35.
Hence, to conclude it would appear that there are many criticisms of the Roman law of theft and I would be inclined to agree with Nicholas who describes it as "one of the least commendable parts of mature Roman law36. " I have established criticisms with regards to the fact that the definition of furtum as contrectatio did not displace the basic conception of furtum and the lack of clarity and consensus surrounding manifest and non-manifest theft, the disparity between the form of the actions and the seriousness of the act with regard to manifest and non-manifest theft.
What's more, I have criticised the penal nature of the actions in relation to the solvency of the thief, the condictio furtiva and its form and the fact that there can be no actio furti against fillius or slaves. Finally, I have criticised the view that rapina is outside of the law of theft and the lack of advantage to using the actio vi bonorum.