[ULPIANUS libro uicensimo nono ad Sabinum. ] §47.2.14.10An pater, cuius filio commodata res est, furti actionem habeat, quaeritur.
It is asked whether a father has the action for theft in respect of a thing lent to his son.
et Iulianus ait patrem hoc nomine agere non posse, quia custodiam praestare non debeat: sicut, inquit, is qui pro eo, cui commodata res est, fideiussit, non habet furti actionem.
And Julian says that the father cannot sue on this account, because he is not obliged to warrant custody: just as, he says, one who has become surety for a person to whom a thing was lent does not have the action for theft.
neque enim, inquit, is, cuiuscumque intererit rem non perire, habet furti actionem, sed qui ob eam rem tenetur, quod ea res culpa eius perierit: quam sententiam Celsus quoque libro duodecimo digestorum probat.
For, he says, it is not anyone who has an interest in the thing not perishing who has the action for theft, but the person who is held liable on account of that thing, because it perished through his fault. Celsus also approves this opinion in the twelfth book of his Digests.
§47.2.14.11Is qui precario seruum rogauerat subrepto eo potest quaeri an habeat furti actionem.
It can be asked whether a person who had requested a slave by precarium has the action for theft if the slave is stolen.
et cum non est contra eum ciuilis actio (quia simile donato precarium est) ideoque et interdictum necessarium uisum est, non habebit furti actionem.
And since there is no civil action against him (because precarium is similar to a gift), and therefore an interdict was deemed necessary, he will not have the action for theft.
plane post interdictum redditum puto eum etiam culpam praestare et ideo et furti agere posse.
Clearly, after the interdict has been granted, I think that he also warrants against fault, and therefore can also sue for theft.
§47.2.14.12Quod si conduxerit quis, habebit furti actionem, si modo culpa eius subrepta sit res.
But if anyone has hired a thing, he will have the action for theft, provided that the thing was stolen through his fault.
§47.2.14.13Si filius familias subreptus sit, patrem habere furti actionem palam est.
If a filius familias is stolen, it is clear that the father has the action for theft.
§47.2.14.14Si res commodata est et is cui commodata est decesserit: quamuis hereditati furtum fieri non possit et ideo nec heres eius cui commodata est possit agere, tamen commodator poterit furti agere: idemque et in re pignerata uel in re locata.
If a thing is lent and the person to whom it was lent has died: although theft cannot be committed against an inheritance, and therefore the heir of the borrower cannot sue either, nevertheless the lender will be able to sue for theft. The same applies to a thing pledged or let.
licet enim hereditati furti actio non adquiratur, tamen alii, cuius interest, adquiritur.
For although the action for theft is not acquired for the inheritance, it is nevertheless acquired for another who has an interest.
§47.2.14.15Non solum autem in re commodata competit ei cui commodata est furti actio, sed etiam in ea, quae ex ea adgnata est, quia et huius custodia ad eum pertinet.
Moreover, the action for theft belongs to the borrower not only in respect of the thing lent, but also in respect of that which has been born from it, because its custody also belongs to him.
nam et si seruum tibi commodauero, et uestis eius nomine furti ages, quamuis uestem, qua uestitus est, tibi non commodauerim.
For even if I lend you a slave, you will sue for theft in respect of his clothing, although I did not lend you the clothing with which he is clothed.
item si iumenta tibi commodauero, quorum sequella erat eculeus, puto competere furti actionem etiam eius nomine, quamuis ipse non sit commodatus.
Likewise, if I lend you beasts of burden whose follower was a colt, I think that the action for theft belongs to you also in respect of the colt, although it was not itself lent.
§47.2.14.16Qualis ergo furti actio detur ei, cui res commodata est, quaesitum est.
It was therefore asked what kind of action for theft is given to the person to whom a thing is lent.
et puto omnibus, quorum periculo res alienae sunt, ueluti commodati, item locati pignorisue accepti, si hae subreptae sint, omnibus furti actiones competere: condictio autem ei demum competit, qui dominium habet.
And I think that for all persons at whose risk the things of others are, such as in the case of a loan, likewise a lease or a pledge received, if these are stolen, the actions for theft belong to all of them; but the condictio belongs only to him who has ownership.
§47.2.14.17Si epistula, quam ego tibi misi, intercepta sit, quis furti actionem habeat? et primum quaerendum est, cuius sit epistula, utrum eius qui misit, an eius ad quem missa est? et si quidem dedi seruo eius, statim ipsi quaesita est, cui misi: si uero procuratori, aeque (quia per liberam personam possessio quaeri potest) ipsius facta est, maxime si eius interfuit eam habere.
If a letter which I sent to you is intercepted, who has the action for theft? And first, it must be asked whose letter it is, whether of him who sent it or of him to whom it was sent. And if indeed I gave it to his slave, it was immediately acquired by him to whom I sent it; but if to a procurator, likewise (since possession can be acquired through a free person) it became his own, especially if he had an interest in having it.
quod si ita misi epistulam, ut mihi remittatur, dominium meum manet, quia eius nolui amittere uel transferre dominium.
But if I sent the letter on the condition that it be returned to me, my ownership remains, because I did not want to lose or transfer its ownership.
quis ergo furti aget? is cuius interfuit eam non subripi, id est ad cuius utilitatem pertinebant ea quae scripta sunt.
Who then will sue for theft? He who had an interest in its not being stolen, that is, he to whose advantage what was written belonged.
et ideo quaeri potest, an etiam is, cui data est perferenda, furti agere possit.
And therefore it can be asked whether he also to whom it was given to be delivered can sue for theft.
et si custodia eius ad eum pertineat, potest: sed et si interfuit eius epistulam reddere, furti habebit actionem.
And if its custody belongs to him, he can; but also if he had an interest in delivering the letter, he will have the action for theft.
finge eam epistulam fuisse, quae continebat, ut ei quid redderetur fieretue: potest habere furti actionem: uel si custodiam eius rei recepit uel mercedem perferendae accipit.
Imagine it was a letter which contained that something should be returned or done for him: he can have the action for theft; or if he undertook the custody of that thing or receives a fee for delivering it.
et erit in hunc casum similis causa eius et cauponis aut magistri nauis: nam his damus furti actionem, si sint soluendo, quoniam periculum rerum ad eos pertinet.
And in this case, his situation will be similar to that of an innkeeper or a shipmaster; for we give the action for theft to these if they are solvent, since the risk of the things belongs to them.