Theft (furtum) is one of four delicts considered by Justinian, along with robbery (rapina), damage (damnum iniuria datum) and outrage (iniuria); according to Thomas1, a delict consisted in wrongful conduct causing harm, for which the aggrieved party recovered damages. In terms of theft, Gaius fails to provide us with a definition but Justinian describes furtum as "a fraudulent handling [contrectatio] of a thing, of its use or the possession of it, and this is forbidden by natural law.
2" It must be noted that Justinian fails to refer to the fact that furtum only applies to res mobiles that are in commercio. In this essay, I will criticize the Roman law of theft in terms of the difference between the legal definition of furtum and the popular conception, in terms of furtum manifestum and non manifestum and in terms of the practical application of the penal remedies against an insolvent thief.
I will also criticise the condictio furtiva, the lack of actio furti in cases of furtum between slaves and families, and the fact that rapina is viewed by the Institutes as lying outside of the law of furtum. Firstly, a criticism of the law of theft is described by Ibetson, in the fact that the legal definition of furtum as contrectatio and the popular conception that theft required the carrying off of the res3.
Contrectatio is described as a physical handling but also as any meddling or dealing with the thing by Nicholas4, with Buckland and Thomas agreeing that contrectatio meant handling of the stolen thing. However, this contrectatio had to be fraudulosa ie. affected with the intention of wrongdoing with the lack of consent on the part of the victim, to the appropriation of the thing. Indeed, Ibetson says that this mental state could be animus furandi which was "an intention to steal which clearly involved more than an intention to handle.
5" According to Ibetson, the definition of furtum as contrectatio did not displace the basic conception of furtum as involving the actual removal of property6 as in origin furtum required the actual carrying off, asportation, of the stolen thing7; this is demonstrated by the fact that subripere was the word most commonly used to describe the act of stealing, Paul's reference to the derivation from ferre to auferre and Aulus Gellius's hinting at the fact that furtum requires a carrying off8.
Hence, Ibetson establishes that the definition of furtum as contrectatio was therefore established as something different from its underlying conception of carrying away. This is best demonstrated in the case of a heavy chest where one has the intention to take the whole chest and all the contents after having been through them but the case is too heavy to take as a whole.
If one is caught carrying off just one item from that chest, he is in fur manifestus only for the item that he actually takes; animus fruandi for the whole but furtum for only what is taken9. Other criticisms of the Roman law of theft pertain to the distinction between furtum manifestum and furtum non manifestum. Firstly, the lack of consensus between the jurists as to the meaning furtum manifestum is worthy of criticism.
Gaius describes furtum manifestum as "when the thief is taken in the act, but others extend it to cover the case of the thief being taken in the place where the act was committed10" and it would appear he concurs with this as he disagrees with the assertion that "it is manifest theft until the thief has carried the stolen property to the place to which he intended carrying it11" describing it as "unsatisfactory, because it raises grave doubts whether it would extend over the space of one or even of several days.
12" Whereas Justinian agrees with Sabinus's opinion as stated by Paul13, that manifest theft "must be further extended to include the case of the thief having been seen or caught, in a public or private place, by the owner or anyone else, while still holding the thing, and before he has reached the place to which he intended to carry it. 14" This contrast in opinions as to the meaning of manifest theft meant that it was difficult to distinguish between manifest theft and non- manifest theft.
This is due to the fact that there was no actual positive definition furtum non manifestum apart from "that which is not manifest in non-manifest" Thus, what qualified as furtum non manifestum depended on what was furtum manifestum and as we have seen this was not universally agreed upon. Thus I would also criticise the lack of independent definition of furtum non manifestum.