[ULPIANUS libro quadragensimo primo ad Sabinum. ] §47.2.43.prFalsus creditor (hoc est is, qui se simulat creditorem) si quid acceperit, furtum facit nec nummi eius fient.
[ULPIANUS in his forty-first book on Sabinus.] If a false creditor (that is, one who pretends to be a creditor) should receive anything, he commits theft, and the coins do not become his property.
§47.2.43.1Falsus procurator furtum quidem facere uidetur.
A false proxy indeed seems to commit theft.
sed Neratius uidendum esse ait, an haec sententia cum distinctione uera sit, ut, si hac mente ei dederit nummos debitor, ut eos creditori perferret, procurator autem eos intercipiat, uera sit: nam et manent nummi debitoris, cum procurator eos non eius nomine accepit, cuius eos debitor fieri uult, et inuito domino eos contrectando sine dubio furtum facit.
But Neratius says we must see whether this opinion is true with a distinction: so that, if the debtor gave him the coins with this intention, that he should deliver them to the creditor, and the proxy intercepts them, it is true; for the coins remain the debtor's, since the proxy did not receive them in the name of him whom the debtor wants them to become the property of, and by handling them against the owner's will, he undoubtedly commits theft.
quod si ita det debitor, ut nummi procuratoris fiant, nullo modo eum furtum facere ait uoluntate domini eos accipiendo.
But if the debtor should give them in such a way that they become the proxy's coins, he says that the proxy in no way commits theft by receiving them with the owner's consent.
§47.2.43.2Si is, qui indebitum accipiebat, delegauerit soluendum, non erit furti actio, si eo absente solutum sit: ceterum si praesente, alia causa est et furtum fecit.
If he who was receiving what was not owed has delegated the payment, there will be no action for theft if the payment was made in his absence; but if it was made in his presence, the case is different, and he has committed theft.
§47.2.43.3Si quis nihil in persona sua mentitus est, sed uerbis fraudem adhibuit, fallax est magis quam furtum facit: ut puta si dixit se locupletem, si in mercem se collocaturum quod accepit, si fideiussores idoneos daturum uel pecuniam confestim se soluturum: nam ex his omnibus magis decepit quam furtum fecit, et ideo furti non tenetur.
If someone has lied in no way regarding his person, but has employed deceit in his words, he is deceitful rather than committing theft; as for example if he said he was wealthy, or that he would invest what he received in merchandise, or that he would give suitable guarantors, or that he would pay the money immediately; for in all these cases he deceived rather than committed theft, and therefore he is not held liable for theft.
sed quia dolo fecit, nisi sit alia aduersus eum actio, de dolo dabitur.
But because he acted with malice, unless there is another action against him, an action for malice will be granted.
§47.2.43.4Qui alienum quid iacens lucri faciendi causa sustulit, furti obstringitur, siue scit cuius sit siue ignorauit: nihil enim ad furtum minuendum facit, quod cuius sit ignoret.
He who has taken up another's property lying on the ground for the purpose of making a profit is bound for theft, whether he knows whose it is or is ignorant; for the fact that he does not know whose it is does nothing to lessen the theft.
§47.2.43.5Quod si dominus id dereliquit, furtum non fit eius, etiamsi ego furandi animum habuero: nec enim furtum fit, nisi sit cui fiat: in proposito autem nulli fit, quippe cum placeat Sabini et Cassii sententia existimantium statim nostram esse desinere rem, quam derelinquimus.
But if the owner abandoned it, theft of it does not occur, even if I have the intention of stealing; for theft does not occur unless there is someone against whom it can be committed; in the proposed case, however, it is committed against no one, since the opinion of Sabinus and Cassius is approved, who think that a thing which we abandon immediately ceases to be ours.
§47.2.43.6Sed si non fuit derelictum, putauit tamen derelictum, furti non tenetur.
But if it was not abandoned, yet he thought it was abandoned, he is not held liable for theft.
§47.2.43.7Sed si neque fuit neque putauit, iacens tamen tulit, non ut lucretur, sed redditurus ei cuius fuit, non tenetur furti.
But if it was neither abandoned nor did he think so, yet he took it lying there, not to make a profit, but to return it to him whose it was, he is not held liable for theft.
§47.2.43.8Proinde uideamus, si nescit cuius esset, sic tamen tulit quasi redditurus ei qui desiderasset uel qui ostendisset rem suam, an furti obligetur.
Accordingly, let us see, if he did not know whose it was, but yet took it as if to return it to him who should seek it or who should show it to be his own, whether he is bound for theft.
et non puto obligari eum.
And I do not think he is bound.
solent plerique etiam hoc facere, ut libellum proponant continentem inuenisse se et redditurum ei qui desiderauerit: hi ergo ostendunt non furandi animo se fecisse.
Most people even do this, namely, they post a notice stating that they have found it and will return it to him who seeks it; these, therefore, show that they did not act with the intention of stealing.
§47.2.43.9Quid ergo, si εὕρετρα quae dicunt petat? nec hic uidetur furtum facere, etsi non probe petat aliquid.
What then, if he should demand what they call εὕρετρα? Even here he does not seem to commit theft, even if he demands something improperly.
§47.2.43.10Si quis sponte rem iecit uel iactauit, non quasi pro derelicto habiturus, tuque hanc rem tuleris, an furti tenearis, Celsus libro duodecimo digestorum quaerit.
If someone has voluntarily thrown away or cast aside a thing, not intending to treat it as abandoned, and you have taken this thing, whether you are held liable for theft is asked by Celsus in the twelfth book of his Digests.
et ait: si quidem putasti pro derelicto habitam, non teneris.
And he says: if indeed you thought it was treated as abandoned, you are not held liable.
quod si non putasti, hic dubitari posse ait: et tamen magis defendit non teneri, quia, inquit, res non interuertitur ei, qui eam sponte reiecit.
But if you did not think so, he says that a doubt can be raised here; and yet he rather defends that you are not held liable, because, he says, the thing is not embezzled from him who voluntarily threw it away.
§47.2.43.11Si iactum ex naue factum alius tulerit, an furti teneatur? quaestio in eo est, an pro derelicto habitum sit.
If another should take what was thrown from a ship, is he held liable for theft? The question is whether it was treated as abandoned.
et si quidem derelinquentis animo iactauit, quod plerumque credendum est, cum sciat periturum, qui inuenit suum fecit nec furti tenetur.
And if indeed he threw it with the intention of abandoning it, which is mostly to be believed when he knows it will perish, the one who found it made it his own and is not held liable for theft.
si uero non hoc animo, sed hoc, ut, si saluum fuerit, haberet: ei qui inuenit auferendum est, et si scit hoc qui inuenit et animo furandi tenet, furti tenetur.
But if not with this intention, but with this, that if it should be safe, he would have it: it must be taken away from the one who found it, and if the one who found it knows this and keeps it with the intention of stealing, he is held liable for theft.
enimuero si hoc animo, ut saluum faceret domino, furti non tenetur.
But indeed, if with the intention of keeping it safe for the owner, he is not held liable for theft.
quod si putans simpliciter iactatum, furti similiter non tenetur.
But if, thinking it was simply thrown away, he is likewise not held liable for theft.
§47.2.43.12Etiamsi partis dimidiae nanciscar dominium in seruo, qui mihi antea furtum fecerat, magis est, ut extinguatur actio etiam parte redempta, quia et si ab initio quis partem in seruo habebat, furti agere non poterat.
Even if I should obtain ownership of a half share in a slave who had previously committed theft against me, it is more correct that the action is extinguished even if the share has been acquired, because even if someone had a share in a slave from the beginning, he could not bring an action for theft.
plane si usus fructus meus in eo seruo esse coeperit, dicendum est furti actionem non extingui, quia fructuarius dominus non est.
Clearly, if my usufruct should begin to exist in that slave, it must be said that the action for theft is not extinguished, because a usufructuary is not the owner.