Law of delicts Flashcards
How can you distinguish between crime and delict?
Crime is the province of public law while delict is the province of private law. Until the end of the last century of the Republic the law of delicts discharged the function of criminal law- led to there being two sanctions for offences. Regarded as both a crime and a delict as criminal law developed.
How is delict differentiated from tort law?
The delictal sanctions are always punitive, but in tort law they are compensatory
DIscuss the penal character of the law of delicts
Initially the redress for delicts was private vengeance. Thus, in the case of wrongful conduct causing harm the wrongdoer was put at the mercy of his victim. However, this could be avoided even by the time of the XII tables if the wrongdoer agreed to pay compensation. There could be retaliation unless they came to an agreement. Essentially, it was only in default of payment that the victim could execute revenge on the wrongdoer.
Why was this development with the XII tables significant?
It showed that monetary redress was the primary source of compensation for a wrong. Sometimes monetary redress was prescribed, other times left to the discretions of the iudex. However, there was a decline in the value of money which forced the praetor to intervene, leading to the praetorian delicts.
What was the nature of delictal actions?
Delictal actions were penal while other actions were reipersecutory. Whereas reipersecutory simply results in the payment of compensation, delictal results in more than just the payment of compensation- it aims to punish- it is punitive and vindictive.
Was liability for the delict transmissible?
Liability ended with the death of the wrongdoer. However, if the victim died an action could still be brought- it was actively transmissible
Involvement of multiple persons in the delict
As the nature of the delictal actions was punitive, if multiple people were involved in the wrongdoing each was liable to the victim in full as if they had acted alone.
How are the delicts classified in the Institutes?
Furtuum (theft)
Rapina (robbery/ theft with violence)
Damnum Iniuria Datum (loss wrongfully caused)
Iniuria (insult)
How effective is this classification of delicts in the Institutes?
It is over-inclusive in the sense that rapina is simply a sub-category of furtum. However, it is under-inclusive in the sense that it fails to include dolus and metus.
What was the nature of the remedies available?
Purely penal
Purely reipersecutory- a reipersecutory action is one for the recovery of property
They could be a mix of both (actiones mixtae)
What were actiones mixtae?
They could be penal in the sense that the sum awarded was a penalty. Understood to also be compensatory.
What was the school dispute about the classification of furtum? Sabinian interpretation
The Sabinians classified furtuum into
manifest theft (furtum manifestum)
non-manifest theft (furtum non-manifestum)
Discovering a thing after a search (furtum conceptum)
Arising from a stolen thing being brought elsewhere (furtum oblatum)
Proculian classification of furtum
Manifest theft
Non-manifest theft
Furtum conceptum and furtum oblatum are considered to be actions relating to theft than kinds of theft itself. This interpretation is favoured by Gaius.
Why was the law of theft problematic?
There were certain archaic features that were allowed to survive and had no point in the highly sophisticated system of Roman law. One such example of this is the distinction between furtum manifest and non-manifestum and the fact that the formal search was allowed to survive. Furtum was also difficult to define - it was too wide as to defy definition- considered to be unsatisfactory to penalise an act which could not be effectively defined.
Why were such archaic features allowed to survive?
law of theft had little practical importance especially with the development of criminal law. Firstly, a thief is likely to be insolvent and thus it was satisfactory to leave it up to the criminal law system. Furtum was mostly important when considering usucapio.
What is manifest theft?
Gaius sets out four possibilities for manifest theft:
1) The thief must be taken in the act
2) The thief it taken in the place where the act was committed
3) Theft is manifest until the thief has carried the stolen property to the place he intends to hide it
4) Thief is holding the thing in his hands
Option 2 was the most popular interpretation according to Gaius.
What is Justinian’s interpretation of manifest theft?
Justinian takes a different approach and suggests that a theft is manifest if the thief is apprehended on the same day and has not yet taken the stolen property to its intended hiding place.
What is non-manifest theft?
Everything which is not manifest theft
What was the punishment for manifest theft in accordance to the Twelve Tables?
According to the XII tables a thief caught in manifest theft would be scourged and then adjudged to the victim (Gaius states that it is unclear whether he became a slave). A slave would be executed. This punishment was met with disapproval
How did the praetor change the punishment for manifest theft?
Introduced a action for fourfold the value of the thing
What was the punishment for non-manifest theft? (It remained the same throughout)
Punishment for non-manifest theft was double the value of the thing
What was furtum conceptum?
When the thing had been searched for and found in the presence of witnesses, in a person’s possession.
What was the penalty for furtum conceptum?
If the thing was found there was an actio furti manifesti for fourfold the value of the res
Formal search and informal search
Initially there was a formal search and an informal search. If the person declined a informal search, he would be subjected to a formal search which would be completed naked, girt with a linteum and holding a plate. There was no greater penalty if the thing was found in a formal search
What happened to the formal search?
The formal search was defunct by the time of Gaius. There was instead a fourfold penalty for the refusal to allow someone to search- this was introduced by the praetor . If the stolen property is found during a search the thief is deemed to be manifest- Gaius says that it was not making the theif manifest but simply requiring him to pay as if he was.
What is furtum oblatum?
When the stolen thing has been planted, the person whose possession the thing is found has the actio furti oblati
What is the actio furti oblati?
This was a remedy for the innocent person on whose property the thing was found during a search. The penalty was threefold
What is considered furtum? How did the definition of furtum develop and expand?
Initially, furtum required the actual carrying off of the thing. In the later Republic the definition of furtum was expanded to include any intention to deprive an individual of his property- in circumstances other than those covered by the Lex Aquilia. in the later republic new remedies arose such as the actio doli
How was the definition of furtum restricted?
Concretatio test adopted to restrict the concept of furtum. Thus, anyone including the owner of the thing could commit furtum of it.
The mental element of furtum
Theft has to be intentional. J.4.1.7: ‘theft is only committed if if was done against the will of the owner and that if he knew, he would not allow it’
What is the significance of this requirement of the mental element?
As there has to be an intention for theft to be committed, A person under the age of puberty can only be liable if he is approaching the age of puberty and consequently understands that what he is doing is wrong. G.3.208
What exactly must be intended for theft to occur?
G.3.202 with the case of the red rag to the herd of cows. This was done out of wantonness and there was no intention to deprive so there was no theft.
‘Where a person put a herd of cattle to flight by means of a red cloth. If, however, this were done merely for the sake of amusement, and not for the purpose of committing a theft, we will examine whether an equitable action should be granted, as by the Lex Aquilia, which was enacted with reference to damages, even negligence may be punished’
How wide is theft?
G.2.50- ‘he who has sold and delivered another’s thing commits theft, and the same holds good if he have delivered the thing on any other ground’. This is problematic particularly when it is combined with usucapio.
Why is the definition of theft problematic for usucapio?
It requires someone to show that the thing has never been stolen rather than the other way round. With such a wide definition of theft this is practically impossible
Is there a remedy for attempted theft?
Attempted theft is considered to be manifest theft
What is contractual theft?
There could be theft of a thing even when possession of the thing was willingly given by the owner
(G.3.197) It was decided, however, that those who use property for another purpose than that for which they received it, commit theft, provided they know that they do this contrary to the will of the owner, and that he, if he knew of it, would not allow it; but if they believe that he would permit them to do so, this should not be considered theft. And the distinction is perfectly proper, as theft is not committed without unlawful intent.
(G.3.198) If anyone thinks that he is handling an article contrary to the will of the owner, but the owner is in fact willing for him to do so this is said not to be theft; and hence the question arose and was discussed, whether if Titius should solicit my slave to steal certain property belonging to me, and deliver it to him; and the slave should notify me, and I, desiring to detect Titius in the crime, should permit my slave to take the property to him, whether Titius would be liable to me in the action of theft, or in the one for corrupting a slave, or whether he would be liable in neither. The answer is that he would be liable in neither action, for he would not be liable in the action of theft, for the reason that he did not handle the property contrary to my will; and he would not be liable in the action for corrupting the slave, for the reason that the slave was not rendered any worse.
What is required for concretatio?
Intent of wrongdoing
lack of consent from the victim
The thing had to be a res mobiles for concretatio to occur- there could be no theft of land
How is concretatio defined?
The institutes states that it is the ‘the fraudulent handling of a thing, of its use or possession of it’. The fact that mere meddling with the thing was enough was perhaps an attempt to cover attempted theft.
What is the view to profit argument?
Does the individual need to want to profit from it. What about the cases of conspiracy of theft? Does profit have to be direct
What is ope et consilio?
Ope et consilio means by aid and counsel.
Is physical touching (concretatio) required?
“If I deliberately act wrongfully with respect to you and as a result of my wrongful conduct X is enabled to steal from you, I am treated as an accomplice. The animus furandi is imputed to me and X’s contrectatio makes me liable.”
Thus, there must be wrongful handling but not all wrongdoers must handle. One who has aided concretatio is as liable as if he had contrected it himself
Yet, none of the texts give conclusive evidence that there can be theft without touching.
What is the case of the persuaded slave?
If someone encourages a slave to run away so that another may get hold of him is guilty of theft
What is Buckland’s interpretation of the concretatio argument?
Buckland suggests that concretatio is more like taking control. The notion that there must be a physical handling of the thing is too narrow as there are circumstances in which theft can occur irrespective of a physical handling of the res. One such example is the case where I drive your hens into my hen house without touching them. Therefore, it is beneficial to refer to concretatio as a simple meddling with the thing rather than something that requires physical contact.
What is the remedy for theft?
The actio furti
What is a summary of the actio furti?
Purely penal Perpetual Passively intransmissible Not for the value of the thing but for multiple of it Available against multiple wrongdoers
Who could bring the actio furti?
Not only the owner could bring the actio furti. Anyone with an interest in the safety of the object could sue
