What criticisms might be made of the Roman law of theft?
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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 lying outside of the law of furtum.
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.
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
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