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What criticisms might be made of the Roman law of theft?

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  • Essay length: 2055 words
  • Submitted: 30/01/2012
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University Degree Miscellaneous

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-Roman Law Week 4- What criticisms might be made of the Roman law of theft.

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

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