[ULPIANUS libro trigensimo nono ad Sabinum. ] §47.2.17.prSerui et filii nostri furtum quidem nobis faciunt, ipsi autem furti non tenentur: neque enim qui potest in furem statuere, necesse habet aduersus furem litigare: idcirco nec actio ei a ueteribus prodita est.
[ULPIANUS in the thirty-ninth book on Sabinus.] Our slaves and sons indeed commit theft against us, but they themselves are not held liable for theft; for he who can pass judgment on a thief has no need to litigate against the thief; therefore, no action was provided for him by the ancient jurists.
§47.2.17.1Unde est quaesitum, si fuerit alienatus uel manumissus, an furti actione teneatur.
Hence it has been asked, if he should be alienated or manumitted, whether he is held liable to an action for theft.
et placet non teneri: neque enim actio, quae non fuit ab initio nata, oriri potest aduersus hunc furem.
And it is agreed that he is not held liable; for an action which was not born from the beginning cannot arise against this thief.
plane si manumissus contrectabit, dicendum erit teneri eum furti iudicio, quia hodie furtum fecit.
Clearly, if he handles the property after being manumitted, it must be said that he is held liable in a trial for theft, because he has committed theft today.
§47.2.17.2Cum autem seruus, quem emi traditusque mihi est, a me redhibeatur, non est in ea causa, ut perinde habeatur, atque si meus numquam fuisset, sed et fuit et desiit.
But when a slave, whom I bought and who was delivered to me, is returned by me, he is not in such a position that he is treated as if he had never been mine, but he both was and ceased to be mine.
idcirco dicit Sabinus eum, si furtum fecit, in ea esse causa, ut furti eius nomine is qui redhibuit agere non possit.
Therefore, Sabinus says that, even if he committed theft, he is in such a position that the person who returned him cannot bring an action on account of that theft.
sed etsi non possit, attamen ratio haberi debet eius quod fecit, cum redhiberi coeperit, idque actione redhibitoria continetur.
But even if he cannot, nevertheless account must be taken of what he did when he begins to be returned, and this is included in the redhibitory action.
§47.2.17.3Illud quaesitum est, si, cum in fuga esset seruus, furtum domino fecisset, an aeque posset habere actionem aduersus eum, qui in potestatem domini non regressum bona fide possidere coeperit.
This was asked, if, when a slave was in flight, he had committed theft against his master, whether the master could equally have an action against the person who, before the slave returned to the master's power, began to possess him in good faith.
mouet quaestionem, quod, quamuis possidere seruum eo tempore, quo in fuga est, uideor, attamen furti actione non teneor, quasi non sit in mea potestate: quod enim uideor possidere, ad usucapionem tantum mihi proficere Iulianus scribit.
What raises the question is that, although I seem to possess the slave at that time when he is in flight, nevertheless I am not held liable to an action for theft, as if he were not in my power; for Julian writes that the fact that I seem to possess him benefits me only for usucapion.
dicit igitur Pomponius libro septimo decimo ex Sabino competere furti actionem huic domino, cuius seruus in fuga fuit.
Therefore, Pomponius says in the seventeenth book on Sabinus that an action for theft belongs to this master whose slave was in flight.