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Justinian I · The Digest of Justinian §47.2.22.pr-47.2.22.2

Handling Without Intent to Steal and the Scope of Theft

Passage 7883 of 9271 · Latin

Summary

This passage explains that theft (furtum) is not established, or is limited in scope, when items are damaged or moved without the intent to steal them, referencing cases of other objects moved to reach pearls and a scraped dish.

[PAULUS libro nono ad Sabinum. ] §47.2.22.prSi quid fur fregerit aut ruperit, quod non etiam furandi causa contrectauerit, eius nomine cum eo furti agere non potest.
[PAULUS in the ninth book on Sabinus.] If a thief has broken or damaged anything which he has not also touched for the purpose of stealing, an action for theft cannot be brought against him on its account.
§47.2.22.1Si eo consilio arca refracta sit, ut uniones puta tollerentur, hique furti faciendi causa contrectati sint, eorum tantummodo furtum factum uideri: quod est uerum.
If a chest has been broken open with the design that, say, pearls should be carried away, and these have been touched for the purpose of committing theft, it is deemed that theft has been committed of them only; which is true.
nam ceterae res, quae seponuntur, ut ad uniones perueniatur, non furti faciendi causa contrectantur.
For the other things, which are set aside so that the pearls may be reached, are not touched for the purpose of committing theft.
§47.2.22.2Qui lancem rasit, totius fur est et furti tenetur ad id, quod domini interest.
He who has scraped a dish is a thief of the whole, and is liable for theft to the extent of the owner's interest.

Notes

  1. 47.2.22.prnon etiam furandi causa contrectauerit — This indicates that for theft (furtum) to be established in Roman law, both a physical 'handling/touching (contrectatio)' and a subjective 'intent to steal (animus furandi / furandi causa)' are required. Simply committing property damage (damnum iniuria datum) does not make one liable to an action for theft.
  2. 47.2.22.1eorum tantummodo furtum factum uideri: quod est uerum — The infinitive 'uideri' (is deemed) forms an accusative and infinitive construction, citing the opinions of jurists in indirect speech. In contrast, 'quod est uerum' (which is true) expresses Paulus's direct agreement and judgment.
  3. 47.2.22.2ad id, quod domini interest — The impersonal verb 'interest' with the genitive 'domini' means 'it concerns/is of interest to the owner'. It shows that the liability in an action for theft (actio furti) is calculated based on the owner's subjective and economic 'interest (id quod interest)' rather than merely the physical value of the item.

Cite this passage

Justinian I, The Digest of Justinian §47.2.22.pr-47.2.22.2. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:47.2.22.pr-47.2.22.2

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