De condictione furtiva
(Concerning the action for the recovery of stolen property.)
1 Ulpianus libro octavo decimo ad Sabinum. In furtiva re soli domino condictio competit.
1 Ulpianus, On Sabinus, Book XVIII. Where property is stolen, suit for its recovery can be brought by the owner alone.
2 Pomponius libro sexto decimo ad Sabinum. Condictione ex causa furtiva et furiosi et infantes obligantur, cum heredes necessarii exstiterunt, quamvis cum eis agi non possit.
2 Pomponius, On Sabinus, Book XVI. Both insane persons and infants are liable to an action based on theft where they have become necessary heirs, although suit cannot be brought against them personally.
3 Paulus libro nono ad Sabinum. Si condicatur servus ex causa furtiva, id venire in condictionem certum est quod intersit agentis, veluti si heres sit institutus et periculum subeat dominus hereditatis perdendae. quod et Iulianus scribit. item si mortuum hominem condicat, consecuturum ait pretium hereditatis.
3 Paulus, On Sabinus, Book IX. Where a slave is sued in an action based on theft, it is certain that damages can be claimed to the amount of the interest of the plaintiff; as, for instance, where he was appointed heir, and his master may be in danger of losing the estate; and Julianus is of this opinion. Moreover, if the action is brought for a slave who is dead, the plaintiff will obtain the value of the estate.
4 Ulpianus libro quadragensimo primo ad Sabinum. Si servus vel filius familias furtum commiserit, condicendum est domino id quod ad eum pervenit: in residuum noxae servum dominus dedere potest.
4 Ulpianus, On Sabinus, Book XLI. Where a slave or a son under paternal control commits a theft, an action can be brought against the owner of the slave for whatever came into his hands; and with respect to the remainder, the owner can surrender the slave by way of reparation.
5 Paulus libro nono ad Sabinum. Ex furtiva causa filio familias condici potest: numquam enim ea condictione alius quam qui fecit tenetur aut heres eius.
5 Paulus, On Sabinus, Book IX. An action arising from theft can be brought against a son under paternal control, for no one is ever liable to an action of this kind but the party who committed the theft or his heir.
6 Ulpianus libro trigensimo octavo ad edictum. Proinde etsi ope consilio alicuius furtum factum sit, condictione non tenebitur, etsi furti tenetur.
6 Ulpianus, On the Edict, Book XXXVIII. Hence, even where a theft is committed with the assistance and advice of another party, the latter will not be liable to this action, although he will be to an action for theft.
7 Idem libro quadragensimo secundo ad Sabinum. Si pro fure damnum decisum sit, condictionem non impediri verissimum est: decisione enim furti quidem actio, non autem condictio tollitur. 1Furti actio poenam petit legitimam, condictio rem ipsam. ea res facit, ut neque furti actio per condictionem neque condictio per furti actionem consumatur. is itaque, cui furtum factum est, habet actionem furti et condictionem et vindicationem, habet et ad exhibendum actionem. 2Condictio rei furtivae, quia rei habet persecutionem, heredem quoque furis obligat, nec tantum si vivat servus furtivus, sed etiam si decesserit: sed et si apud furis heredem diem suum obiit servus furtivus vel non apud ipsum, post mortem tamen furis, dicendum est condictionem adversus heredem durare. quae in herede diximus, eadem erunt et in ceteris successoribus.
7 The Same, On Sabinus, Book XLII. Where a party has made good the loss as a thief, it is perfectly certain that this is no bar to an action for recovery of the property; for by payment of the loss the right of action for theft is extinguished, but not the right of action for recovery of the stolen property. 1The action for theft is brought for the lawful penalty, but the action for recovery for the property itself; and the result is that neither the right of action for theft is lost by the one for recovery nor the action for recovery by that of theft. Therefore, a party who is the victim of a theft has a right of action for theft, a right of action for damages, and a right of action for recovery, and he is also entitled to an action for production. 2The action for the recovery of stolen property, because it involves proceedings to obtain the property itself, renders the heir of the thief also liable, and not only while the slave who was stolen is living, but also after his death. Where, however, the slave who was stolen lost his life while in possession of the heir of the thief—or even when he was not in his possession—after the death of the thief; it must be said that the action will continue to lie against the heir. What we have stated with reference to the heir is equally applicable to all other successors.
8 Idem libro vicensimo septimo ad edictum. In re furtiva condictio ipsorum corporum competit: sed utrum tamdiu, quamdiu exstent, an vero et si desierint esse in rebus humanis? et si quidem optulit fur, sine dubio nulla erit condictio: si non optulit, durat condictio aestimationis eius: corpus enim ipsum praestari non potest. 1Si ex causa furtiva res condicatur, cuius temporis aestimatio fiat, quaeritur. placet tamen id tempus spectandum, quo res umquam plurimi fuit, maxime cum deteriorem rem factam fur dando non liberatur: semper enim moram fur facere videtur. 2Novissime dicendum est etiam fructus in hac actione venire.
8 The Same, On the Edict, Book XXVII. In the case of stolen property suit for recovery can be brought for the articles themselves; but can this be done only so long as they still exist, or where they have ceased to be in existence? If, indeed, the thief has surrendered them, then there is no doubt that suit for their recovery cannot be brought; but if he did not surrender them, a right of action for the recovery of their value still remains, for the articles themselves cannot be delivered. 1Where an action is brought for the recovery of stolen property, the question arises at what time the appraisement of its value should be made? It is, however, established that the time must be considered when the property was of the greatest value it ever possessed, and especially since a thief will not be released by giving up property which is deteriorated; for a thief is considered to be always in default. 2Finally, it must be said that the profits are also included in this action.
9 Idem libro trigensimo ad edictum. In condictione ex causa furtiva non pro parte quae pervenit, sed in solidum tenemur, dum soli heredes sumus, pro parte autem heres pro ea parte, pro qua heres est, tenetur.
9 The Same, On the Edict, Book XXX. In a suit for the recovery of stolen property, the party is liable not only for the amount which came into his hands, but also for all of it, if he is the sole heir; but where he is heir to a share, he is liable to the same proportion of such a share in the stolen property as he is entitled to in the estate.
10 Idem libro trigensimo octavo ad edictum. Sive manifestus fur sive nec manifestus sit, poterit ei condici. ita demum autem manifestus fur condictione tenebitur, si depraehensa non fuerit a domino possessio eius: ceterum nemo furum condictione tenetur, posteaquam dominus possessionem adpraehendit. et ideo Iulianus, ut procedat in fure manifesto tractare de condictione, ita proponit furem deprehensum aut occidisse aut fregisse aut effudisse id quod interceperat. 1Ei quoque, qui vi bonorum raptorum tenetur, condici posse Iulianus libro vicensimo secundo digestorum significat. 2Tamdiu autem condictioni locus erit, donec domini facto dominium eius rei ab eo recedat: et ideo si eam rem alienaverit, condicere non poterit. 3Unde Celsus libro duodecimo digestorum scribit, si rem furtivam dominus pure legaverit furi, heredem ei condicere non posse: sed et si non ipsi furi, sed alii, idem dicendum est cessare condictionem, quia dominium facto testatoris, id est domini, discessit.
10 The Same, On the Edict, Book XXXVIII. A thief can be sued for the recovery of stolen property whether he is a manifest thief or a non-manifest one. A manifest thief, however, will only be liable to an action for recovery where the possession of the property stolen has not been obtained by the owner; for no one is liable to a suit for recovery after the owner has taken possession of the property. Therefore, Julianus, in order that he may proceed with the discussion of the action for recovery in the case of a manifest thief, supposes that the thief, after being caught, has either killed, broken to pieces, or spilled what he had wrongfully appropriated. 1A person also who is liable for robbery with violence, (so Julianus states in the Twenty-second Book of the Digest), can be sued in an action for the recovery of the property. 2There is ground for an action for recovery only so long as the ownership of the property has not been lost to the proprietor by his own act; and therefore, if he transfers it to another, he cannot bring suit for its recovery. 3Wherefore Celsus states in the Twelfth Book of the Digest, that if the owner bequeaths the stolen property to the thief absolutely, the heir cannot bring an action against him to recover it; and where the bequest was not made to the thief himself but to another, the same rule is applicable, and an action for recovery will not lie, as the ownership is lost by the act of the testator; that is to say of the owner.
11 Paulus libro trigensimo nono ad edictum. Sed nec legatarius condicere potest: ei enim competit condictio, cui res subrepta est, vel heredi eius: sed vindicare rem legatam ab eo potest.
11 Paulus, On the Edict, Book XXXIX. Nor can the legatee himself bring a personal action, for this is only available by the person whose property has been stolen or by his heir; but the legatee has a right to recover property which was bequeathed to him by means of another action.
12 Ulpianus libro trigensimo octavo ad edictum. Et ideo eleganter Marcellus definit libro septimo: ait enim: si res mihi subrepta tua remaneat, condices. sed et si dominium non tuo facto amiseris, aeque condices. 1In communi igitur re eleganter ait interesse, utrum tu provocasti communi dividundo iudicio an provocatus es, ut, si provocasti communi dividundo iudicio, amiseris condictionem, si provocatus es, retineas. 2Neratius libris membranarum Aristonem existimasse, refert eum, cui pignori res data sit, incerti condictione acturum, si ea subrepta sit.
12 Ulpianus, On the Edict, Book XXXVIII. Consequently Marcellus very properly states in the Seventh Book, that if the property stolen still remains yours you can bring a personal action to recover it; but if you lose the ownership in some other way than by your own act, you can likewise bring suit to recover it. 1Therefore he very aptly says that where the property is held in common, it makes a difference whether you instituted proceedings against your co-owner by an action for partition, or he brought suit against you, and if you instituted proceedings for this purpose you will lose the right to bring a personal action for recovery, but if he did so, he will still retain that right. 2Neratius, in the Books of Parchments, states that it is held by Aristo that he to whom property had been pledged can, if it should be stolen, bring an action for an uncertain amount of damages.
13 Paulus libro trigensimo nono ad edictum. Ex argento subrepto pocula facta condici posse Fulcinius ait: ergo in condictione poculorum etiam caelaturae aestimatio fiet, quae impensa furis facta est, quemadmodum si infans subreptus adoleverit, aestimatio fit adulescentis, quamvis cura et sumptibus furis creverit.
13 Paulus, On the Edict, Book XXXIX. Where cups have been made out of stolen silver, Fulcinius says that a personal action can be brought, and therefore in the proceedings for their recovery an estimate should be made of the value of any engraving which was done at the expense of the thief; just as where a slave-child is stolen and grows up, an estimate is made of his value when grown, even though he was reared under the care and at the expense of the thief.
14 Iulianus libro vicensimo secundo digestorum. Si servus furtivus sub condicione legatus fuerit, pendente ea heres condictionem habebit et, si lite contestata condicio exstiterit, absolutio sequi debebit, perinde ac si idem servus sub condicione liber esse iussus fuisset et lite contestata condicio exstitisset: nam nec petitoris iam interest hominem recipere et res sine dolo malo furis eius esse desiit. quod si pendente condicione iudicaretur, iudex aestimare debebit, quanti emptorem invenerit. 1Cavere autem ex hac actione petitor ei cum quo agitur non debebit. 2Bove subrepto et occiso condictio et bovis et corii et carnis domino competit, scilicet si et corium et caro contrectata [ed. maior fuerint] <ed. minor fuerunt>: cornua quoque condicentur. sed si dominus condictione bovis pretium consecutus fuerit et postea aliquid eorum, de quibus supra dictum est, condicet, omnimodo exceptione summovetur. contra si corium condixerit et pretium eius consecutus bovem condicet, offerente fure pretium bovis detracto pretio corii doli mali exceptione summovebitur. 3Idem iuris est uvis subreptis: nam et mustum et vinacia iure condici possunt.
14 Julianus, Digest, Book XXII. Where a stolen slave has been bequeathed under some condition, then, as long as the condition is pending, the heir will have a right of action for his recovery, but if the condition should be fulfilled after issue has been joined, the case must be dismissed; just as if the same slave had been directed by the testator to be free under a certain condition, and the condition was complied with after issue had been joined; for the plaintiff is no longer interested in securing the slave, and the property has ceased to be his without any fraudulent act on the part of the thief. Where judgment is rendered while the condition was pending, the judge must make an estimate of the sum the slave would have been worth if a purchaser had been found. 1In this action, however, the plaintiff is not obliged to furnish security to the party who is sued. 2Where an ox is stolen and killed, a personal action for recovery can be brought by the owner for the ox, the hide, and the flesh; that is, where the hide and the flesh have been handled in stealing, and suit to recover the horns may also be brought. Where, however, the owner obtains the value of the ox by a personal action for recovery, and afterwards brings a similar suit for any of the things above mentioned, he can undoubtedly be barred by an exception. On the other hand, if he should bring suit for the hide and recover its value, and then sue to recover the ox, and the thief tenders the value of the ox after deducting the value of the hide, the plaintiff will be barred by an exception on the ground of fraudulent intent. 3The same rule applies where grapes are stolen, for the must and the grape-stones can be recovered by a personal action.
15 Celsus libro duodecimo digestorum. Quod ab alio servus subripuit, eius nomine liber furti tenetur: condici autem ei non potest, nisi liber contrectavit.
15 Celsus, Digest, Book XII. Where a slave steals from another party, he will be liable for theft in his own name if he becomes free; but a personal action for recovery cannot be brought against him unless he handled the property after he was free.
16 Pomponius libro trigensimo octavo ad Quintum Mucium. Qui furtum admittit vel re commodata vel deposita utendo, condictione quoque ex furtiva causa obstringitur: quae differt ab actione commodati hoc, quod, etiamsi sine dolo malo et culpa eius interierit res, condictione tamen tenetur, cum in commodati actione non facile ultra culpam et in depositi non ultra dolum malum teneatur is, cum quo depositi agetur.
16 Pomponius, On Quintus Mucius, Book XXXVIII. Where anyone commits a theft by using something which was lent to him or deposited with him, he can be compelled to account for doing so by a personal action for recovery on the ground of theft also, and this differs from the action to recover property loaned, because, even if the property had been destroyed without his malice or negligence, he will, nevertheless, be liable to a personal action for recovery; while in the action to recover property loaned he will not readily be held liable, except where he was guilty of negligence, and in an action on deposit he would not be liable at all unless malicious intent was established.
17 Papinianus libro decimo quaestionum. Parvi refert ad tollendam condictionem, offeratur servus furtivus an in aliud nomen aliumque statum obligationis transferatur: nec me movet, praesens homo fuerit nec ne, cum mora, quae eveniebat ex furto, veluti quadam delegatione finiatur.
17 Papinianus, Questions, Book X. It makes little difference, so far as the loss of the right of action to recover is concerned, whether, after a slave had been stolen, an offer is made to return him, or whether the case is placed under a different class or a different species of obligation; for it does not matter to me whether the slave is present or not, as the default which arose from the theft is disposed of by a kind of assignment of the claim.
18 Scaevola libro quarto quaestionum. Quoniam furtum fit, cum quis indebitos nummos sciens acceperit, videndum, si procurator suos nummos solvat, an ipsi furtum fiat. et Pomponius epistularum libro octavo ipsum condicere ait ex causa furtiva: sed et me condicere, si ratum habeam quod indebitum datum sit. sed altera condictione altera tollitur.
18 Scævola, Questions, Book IV. Where a party knowingly receives money which is not due, since this is the same as a theft, it should be considered whether, when an agent makes payment with his own money, he does not commit a theft upon himself? Pomponius says in the Eighth Book of the Epistles, that the agent has a right of action for recovery based on theft; and that I, also, have such a right, if I ratify the payment of money which is not due; but where one action is brought, the right to bring the other is extinguished.
19 Paulus libro tertio ad Neratium. Iulianus ex persona filiae, quae res amovit, dandam in patrem condictionem in peculium respondit.
19 Paulus, On Neratius, Book III. Julianus says, with reference to a daughter who removed property belonging to her husband, that a personal action for recovery should be granted against her father to the extent of her peculium.
20 Tryphoninus libro quinto decimo disputationum. Licet fur paratus fuerit excipere condictionem et per me steterit, dum in rebus humanis res fuerat, condicere eam, postea autem perempta est, tamen durare condictionem veteres voluerunt, quia videtur, qui primo invito domino rem contrectaverit, semper in restituenda ea, quam nec debuit auferre, moram facere.
20 Tryphoninus, Disputations, Book XV. Suppose a thief is prepared to defend a personal action brought against him for the recovery of stolen property; as long as the property exists I have a right to bring the action, but where it is afterwards destroyed, the ancient authorities held that the right still remained, because it was their opinion that where a man had, in the beginning, handled the property without the consent of the owner, he is always in default with reference to returning it, because he ought not to have removed it.