[ULPIANUS libro quadragensimo primo ad Sabinum. ] §47.2.36.prQui seruo persuasit, ut fugeret, fur non est: nec enim qui alicui malum consilium dedit, furtum facit, non magis quam si ei persuasit, ut se praecipitet aut manus sibi inferret: haec enim furti non admittunt actionem.
He who has persuaded a slave to flee is not a thief; for neither does he who has given bad advice to someone commit a theft, no more than if he had persuaded him to throw himself down or lay hands on himself; for these acts do not admit an action for theft.
sed si alius ei fugam persuaserit, ut ab alio subripiatur, furti tenebitur is qui persuasit, quasi ope consilio eius furtum factum sit.
But if another has persuaded him to flee, so that he might be stolen by someone else, the one who persuaded him will be held liable for theft, as if the theft had been committed by his aid and counsel.
plus Pomponius scripsit eum, qui persuasit, quamuis interim furti non teneretur, tunc tamen incipere teneri, cum quis fugitiui fur esse coeperit, quasi uideatur ope consilio eius furtum factum.
Pomponius wrote further that the one who persuaded, although in the meantime he would not be held liable for theft, nevertheless begins to be held liable at the moment when someone begins to be the thief of the runaway, as if the theft seems to have been committed by his aid and counsel.
§47.2.36.1Item placuit eum, qui filio uel seruo uel uxori opem fert furtum facientibus, furti teneri, quamuis ipsi furti actione non conueniantur.
Likewise, it has been accepted that he who lends assistance to a son, slave, or wife committing a theft is held liable for theft, even though they themselves are not sued by the action for theft.
§47.2.36.2Idem Pomponius ait, si cum rebus aufugerit fugitiuus, posse furti actione sollicitatorem conueniri rerum nomine, quia opem consilium contrectatori tulit.
The same Pomponius says that if a runaway slave has fled with things, the instigator can be sued by the action for theft in respect of the things, because he provided aid and counsel to the taker.
quod et Sabinus significat.
Sabinus also indicates this.
§47.2.36.3Si duo serui inuicem sibi persuaserunt et ambo simul aufugerunt, alter alterius fur non est.
If two slaves have persuaded each other and both fled at the same time, one is not the thief of the other.
quid ergo, si inuicem se celauerunt? fieri enim potest, ut inuicem fures sint.
What then, if they have hidden each other? For it is possible that they are mutually thieves.
et potest dici alterum alterius furem esse, quemadmodum, si alii singulos subripuissent, tenerentur, quasi alter alterius nomine opem tulisset: quemadmodum rerum quoque nomine teneri eos furti Sabinus scripsit.
And it can be said that one is the thief of the other, just as, if others had stolen them individually, they would be held liable, as if one had provided aid in the name of the other; just as Sabinus wrote that they are held liable for theft also in respect of the things.