Furtum

Furtum was a delict of Roman law comparable to the modern offence of theft (as it is usually translated) despite being a civil and not criminal wrong. In the classical law and later, it denoted the contrectatio (“handling”) of most types of property with a particular sort of intention – fraud and in the later law, a view to gain. It is unclear whether a view to gain was always required or added later, and, if the latter, when. This meant that the owner did not consent, although Justinian broadened this in at least one case. The law of furtum protected a variety of property interests, but not land, things without an owner, or types of state or religious things. An owner could commit theft by taking his things back in certain circumstances, as could a borrower or similar user through misuse.

The Romans distinguished between "manifest" and "non-manifest theft" based on how close to the scene of the crime the thief was caught, although exactly where the line was debated by jurists. Under the Twelve Tables, death or flogging could be expected for a manifest thief, later changed to damages of four times the thing. The penalty for non-manifest theft was two times. There were complementary actions against the occupier of the property where the stolen goods were found, if the defendant did not bring the thing to court or refused a search. Vindicatio or condictio could also be undertaken by the owner of the thing, in addition to an action under furtum.

Contrectatio meant "handling" and was established as the prohibited action associated with furtum before the end of the republic.Furtum had in the early and mid-Republic required the carrying away of a thing. This was widened and there are several examples from the classical Rome and later where it is even hard to find physical contact in any sense.Contrectatio extended to dealing with the thing as if the owner, and "physical interference" can be considered a more accurate term than just touching. The idea of furtum, and conrectatio in particular, broadened during the republic to complement the narrowly defined Lex Aquilia. This did, for example, include using a borrowed thing in a way which went beyond that agreed with the lender (furtum usus), such as borrowing a horse and riding it for longer than agreed. During the Republic, no distinction was made in language between furtum usus and furtum in general.Contrectio included what might be thought of as fraud: knowingly accepting a wrongful payment, or embezzlement, for example. The case of wrongful payment is problematic, because a mistaken payment still transferred ownership; it seems contradictory that the receiver was granted ownership and still liable for theft. To accept a thing as a pledge knowing that it did not belong to the pledgor was also furtum – not merely acting as an accomplice.Plautus, a playwright, suggests that failing to report a theft after the fact was furtum, but this should not be assumed. The development of contrectio as the preferred prohibited act accompanied that of the criminal law, the actio doli (for fraud) and the Aquilian actions.

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