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Justinian I · The Digest of Justinian §47.2.39.pr

Abduction of a Prostitute Slave for Lust and Theft

Passage 7900 of 9271 · Latin

Summary

The passage argues that abducting or detaining a prostitute who is another's slave, or breaking her doors for the sake of lust, does not constitute theft due to the lack of intent to steal, and should not fall under the Lex Fabia.

[ULPIANUS libro quadragensimo primo ad Sabinum. ] §47.2.39.prUerum est, si meretricem alienam ancillam rapuit quis uel celauit, furtum non esse: nec enim factum quaeritur, sed causa faciendi: causa autem faciendi libido fuit, non furtum.
[ULPIAN in his forty-first book on Sabinus.] It is true that if someone has abducted or concealed a female slave who belongs to another and is a prostitute, it is not theft; for it is not the deed itself that is enquired into, but the cause of doing it, and the cause of doing it was lust, not theft.
et ideo etiam eum, qui fores meretricis effregit libidinis causa, et fures non ab eo inducti, sed alias ingressi meretricis res egesserunt, furti non teneri.
And therefore, even a man who broke open the doors of a prostitute for the sake of lust, and thieves, not brought in by him but having entered otherwise, carried away the prostitute's property, is not liable for theft.
an tamen uel Fabia teneatur, qui subpressit scortum libidinis causa? et non puto teneri, et ita etiam ex facto, cum incidisset, dixi: hic enim turpius facit, quam qui subripit, sed secum facti ignominiam compensat, certe fur non est.
But is he who has detained a prostitute for the sake of lust liable even under the Lex Fabia? I do not think he is liable, and I also said so on the basis of the facts when a case occurred; for this man acts more basely than one who commits theft, but he balances the ignominy of the deed within himself; at any rate, he is not a thief.

Notes

  1. §47.2.39.prUerum est, si ... furtum non esse — The infinitive clause furtum non esse (that it is not theft), conditioned by the si clause, serves as the subject of the main clause uerum est ("it is true").
  2. §47.2.39.preum, qui ... egesserunt, furti non teneri — This is an accusative and infinitive construction (eum ... non teneri, "that he is not held liable") dependent on the preceding uerum est. While the relative clause qui ... effregit modifies eum, the clause et fures ... egesserunt ("and thieves... carried away") is inserted coordinately to present a combined scenario where the doors were broken and other thieves stole the goods.
  3. §47.2.39.prFabia — The feminine ablative singular, with lege ("by the law") understood. It refers to the Lex Fabia (a law concerning kidnapping and unlawful detention).
  4. §47.2.39.prsecum facti ignominiam compensat — The verb compensat means "to balance" or "to offset." The phrase implies that the moral or social "ignominy" (ignominiam) that the actor suffers within himself (secum) offsets the wrongfulness of his lustful act, meaning it should not be legally categorized as "theft" (furtum), which requires an intent to gain.

Cite this passage

Justinian I, The Digest of Justinian §47.2.39.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:47.2.39.pr

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