Week 6- Delict- furtum and rapina Flashcards
How did the later classical law on rectifying delicts change from the earlier law and the XII tables?
-When was this change completed?
- The history of this part of law can be seen as a movement, never completed in Roman times, from the principle of vengeance for injury to that of compensation to damage done.
- Under the XII tables the remedies were barbaric and involved capital punishment, including the the scouring of slaves, self-help against the slave who comes at night, the death of slave or loss of freedom for a free men, all provided for by the Praetor
- The Praetor moved away from the capital punishment but kept the punitive aspect of it, as well as providing for a trial procedure to determine the punitive damages to be awarded (monetary damages). This represented a wider movement away from vigilante work and self-help and towards a more formulaic approach, whilst retaining the punitive elements.
-By the 1st century BCE this movement was somewhat completed.
What did the twelve tables provide for a thief who came by night, and for manifest theft ?
- Twelve tables preserve all different stages of the developments of private penal action. Self-help still survives, subject to varying degrees of control.
- If a thief came by night or even in the day with a weapon, the victim of the theft might kill him, provided he called out to his neighbour to verify the killing.
- For the manifest thief (caught with item in his hand), slightly more controlled, no trial as guilt was obvious but victim couldn’t issue vengeance until he had brought him before a magistrate, who had him scourged (whipped as punishment).
- In the case of severe bodily harm (Membrum ruptum) there was a trial, and the victim was entitled not to the entire physical subjection of the wrongdoer but only to retaliation in kind- lex talionis. The victim could accept a monetary compensation, as could the victim of manifest theft, but he could not be compelled to do so.
- In some other delicts, money was the only acceptable form eg 300 asses for bone breaking and 25 for lesser assaults, or a multiple of the loss suffered eg two-fold the value of the thing for non-manifest theft.
What was a reipersecutory action, how did it differ to penal actions and what were the practical consequences of the differences between the two?
- A Reipersecutory action often results in the payment of compensation whilst a penal action is comprised of more than compensation, the ‘more’ part being distinctive and of a punitive or vindictive character.
- Practical consequence of this= 1) A delict committed by more than one person meant that they were individually liable for the amount; being punitive was more designed as deterrence for the perpetrator than simply compensation for the victim.
2) As with theft, the bringing of a penal action did not prevent a reipersecutory action also being brought; however if the wrongdoer died before the action was brought, it would not lie against his heir, the victim could only claim his revenge against the wrongdoer. (not the same for aggravated theft under Justinian)
3) On the other hand, if the victim died it passed onto his heir to enforce the action, except for iniuria (injury) due to the vengeful character.
4) If the wrongdoer was a slave or a son in potestate, the action was noxal.
What were the 4 Praetorian wrongs for theft and who were they not applicable to?
Actio Furti, actio furti prohibi, actio furti concepti actio furti oblati
If there was an infant or someone of unsound mind there could be no liability
What was the practical difference between manifest and non manifest theft, and the relative actions?
What was the old penalty for manifest theft?
- Distinction between manifest theft and non-manifest theft. The old savage penalty for manifest theft (loss of citizenship or death of the slave) had disappeared and replaced with a compensatory style punishment, which left the victim in a better position than he would otherwise be in had he not been stolen from; increasingly so where there is multiple perpetrators all of which were to be punished separately.
Manifest theft= liable for quadruple the value. Non-manifest theft= liable for double the value. Both forms of theft subject to a trial, with the old difference in the mode of proof disappearing.
-These actions to enforce a theft took the form of the actio furti.
-Manifest theft occurs when the thief is caught in the act but non-manifest theft was more common and ended up in the searches of property through the actio furti prohibiti, which would be passed on with the actio furti oblati if the innocent defendant had received goods from the true thief to avoid being caught.
what was the actio furti prohibit, actio furti concepti and actio furti oblati?
)The victim could demand to make a search of any premises on which he thought the goods were hidden. If the search was refused, he could exact a fourfold penalty from the occupier by the actio furti prohibiti. If the search was conducted and the goods were found, the occupier of the premises was liable under the actio furti concepti to a threefold penalty even if he knew nothing about the goods being there. He could in turn enforce a threefold penalty against he who left the goods there, under the actio furti oblati, but only if he had deposited the goods to escape detection. Therefore, a household owner could be liable for the actio furti concepti if a guest had innocently brought stolen goods to his house and left them there; the reason was to reinforce the common roman perception that the thief was he who was in possession of the goods.
What is the reason for the limited scope of the actio furti oblati?
-The wide roman conception was that the receiver was simply a thief, even when, as in the example above, he is merely and innocently found in possession.
What was contrectatio and how did its importance change overtime?
Contrectatio= handling.
-In the earlier classical law, lawyers focused more on the handling, and they held that a theft could be committed where D uses malicious and dishonest acts towards V, which makes him incur a loss. No handling was required and yet this still warranted liability as a thief
- even sabinus was happy to allow a loose interpretation of handling in order ti focus on the mental element of theft.
- By the time of Gaius, handling was important, but the mental element had grown more significantly in importance relative. Handling had taken a more broad meaning, closer to a more modern day conception of appropriation in theft.
What did Paul suggest was also required in theft alongside handling?
-A gain to be made, whether by the person who handles the thing or not. A who steals Bs book to give to C doesn’t benefit himself but is still guilty of theft
What was the latin word for the mental element of theft and what did it mean?
animus furandi= intent to steal, offers the idea that defendant must be in a wrongful state of mind but no more (but not merely a negligent state of mind). This is usually defined as the lack of honest belief that the owner would consent if he knew. It must be dishonest intent.
What does Gaius say about permanent deprivation for theft and the point at which liability arises?
-Gaius makes the point that the thief need not intend to permanently deprive the victim of his property, the theft is completed once the goods of another are handled as if they are the defendants own, and he does not reasonably believe in their consent if they were to know. This clearly includes the case where a depositee uses the property in any way, or where the loanee uses the property in a way that was not authorised by the loaner. There is a gain by the use of anothers property, but subject to a lack of reasonable belief of their consent. “Without dolus malus there Is no theft” (G.3.187)
What is the position with regards to consent?
- There is no theft where D genuinely believes that V would consent if he knew of the taking. The more unreasonable it seems, the less likely it is that it will be believed to be genuinely held.
- Where there is animus furandi, D is not liable where he doesn’t believe there will be consent, but in fact there is consent by the victim. It is an objective test as to whether there is consent; as if there is consent, that is the end of the matter
What was Pauls definition of theft?
Pauls definition: “theft is the fraudulent contrectation of a thing for the sake of making a gain whether from the thing itself, from its use or from its possession”
Who could be a plaintiff for an actio furti?
: as furtum possessionis shows, it is not only the owner who may bring an actio furti. Gaius says that anyone who has an interest in the safety of the thing may sue. Not every interest will suffice however, an unsecured creditor cannot sue, although he has an interest in the safety of his debtors property. For if the debtor is deprived of it he may be unable to pay the debt.
-Positive v negative interest: Positive interest enjoy the right of use and enjoyment, and any of these people will sue for the value of their interest. Negative interest people included those who hold the thing under a contract with the owner eg commodatum Which makes them liable to the depositor if it is stolen. Anyone with a negative interest likely able to sue and provided his liability didn’t arise from fraud. For no one may acquire an action by his own fraud
What reipersecutory action existed alongside the penal actions?
Reipersecutory action: If he could trace the thing, the owner had a vindicatio against the present possessor, but whether or not he could trace it, he had an action in personam (condictio furtiva) against the thief or their heirs ( a compensation for theft). As in any condictio, the formula alleged that the defendant was under a duty to convey the thing to the plaintiff, a conveyance which, since the plaintiff was still owner, was strictly impossible. The illogicality was admitted, says gaius, ‘out of hatred of thieves’. Both actions being reipersecutory, the bringing of one would bar the other, but neither would bar, or be barred by, the brining of the penal actio furti.
