• Join over 1.2 million students every month
  • Accelerate your learning by 29%
  • Unlimited access from just £6.99 per month

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

Extracts from this document...


-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 lying outside of the law of furtum. ...read more.


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. ...read more.


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. 1 Thomas, Textbook on Roman Law, page 249 2 J.4.1.1 3 Ibetson in Ibetson and Lewis, page 54 4 Nicholas, An introduction to Roman Law, page 212 5 Ibetson in Ibetson and Lewis, page 58 6 Ibid. 7 Thomas, Textbook of Roman Law, page 356 8 Ibetson in Ibetson and Lewis, page 62 9 Ulpian D.47.2.21 10 G. 3.184 11 Ibid. 12 Ibid. 13 Buckland textbook, page 584 14 J.4.1.3 15 Nicholas, An Introduction to Roman Law, page 211 16 Ibid. 17 G.3.184 18 Ibid. 19 Buckland Textbook 20 Nicholas, An Introduction to Roman Law, page 211 21 Thomas, Textbook on Roman Law, page 358 22 Buckland Textbook, page 584 23 G.4.4 24 Ibid. 25 Thomas, Textbook of Roman Law, page 353 26 J.4.1.12 27 Thomas, Textbook of Roman Law, page 353 28 G.3.186 29 Thomas, Textbook on Roman Law, page 354 30 J.4.1.4 31 Nicholas, Introduction Roman Law, page 215 32 Thomas, Textbook on Roman Law, page 360 33 Zuleta, page 207 34 Thomas, Textbook on Roman Law, page 360 35 Ibid. 36 Nicholas, Introduction Roman Law ...read more.

The above preview is unformatted text

This student written piece of work is one of many that can be found in our University Degree Miscellaneous section.

Found what you're looking for?

  • Start learning 29% faster today
  • 150,000+ documents available
  • Just £6.99 a month

Not the one? Search for your essay title...
  • Join over 1.2 million students every month
  • Accelerate your learning by 29%
  • Unlimited access from just £6.99 per month

See related essaysSee related essays

Related University Degree Miscellaneous essays

  1. law of property

    Thus, it makes it clear that the property is a gift to his wife, and the testator expects the wife to act as family held by taking. In such case precautionary words are expressing a desire. By contrast, in Comisky v.

  2. critically the impact of the SOA 2003 upon the offence of rape, with particular ...

    9 Rook, Peter and Ward, Robert (2004) Sexual Offences Law and Practice, 3rd Edition, Sweet and MaxweIl, p6. 10 [1992] I AC 599, HL. 11 Crown Prosecution Service: The New Sexual Offences Act 2003 www.cPs.gov.ukipublications/communications/fssexoffences.htmlp 1 12 This provides that "A person (A)

  1. Restorative Justice and Serious Crime

    why most victims and perpetrators I have encountered (in excess of 10,000) hold no faith in the process or system. RJ is a different approach, it can be difficult at first, but it actually makes life a lot easier and more rewarding once established ~ it offers new vision and opportunity and should be embraced.

  2. Competition Law

    At first sight, Actual can challenge the legality of the Agreement under Article 81(1) based on the grounds analyzed above. However, Article 81(3) states that: provisions of Article 81(1) may be declared inapplicable if the agreement(s) or decision(s) or concerted practice(s)

  1. Company Law and Insolvency

    By late nineteenth century, most European countries had adopted the principle of limited liability. Although it was admitted that those who were mere investors ought not be liable for debts arising from the management of a company, throughout the late nineteenth century there were still many arguments for unlimited liability

  2. Company Law Essay Question on Section 172 of the Companies Act 2006

    director must exercise any power vested in him as such, honestly, in good faith and in the interests of the company...". Subsection 1 provides a number of requirements: the director must act in good faith, in the way he considers would most likely promote the success of the company for the benefit of its members as a whole.

  1. Finance and Investment law - Money laundering

    purchase of assets with the cash to change the form of the proceeds from bulk cash to equally valuable but in a less evident form. These methods provide a leeway for the launderers and make the whole process easier for them.


    Whilst restorative practices by their nature must be individually tailored to the specific needs of the school, they still require some form of institutionalized framework consistent with restorative principles.36 Secondly, the absence of clear government policy and legislative provisions in support of restorative practices does not provide incentive or motivation

  • Over 160,000 pieces
    of student written work
  • Annotated by
    experienced teachers
  • Ideas and feedback to
    improve your own work