[ULPIANUS libro quadragensimo secundo ad Sabinum. ] §47.2.48.prQui uas argenteum perdiderat eoque nomine furti egerit: de pondere uasis controuersia cum esset et actor maius fuisse diceret, fur uas protulit: id is cuius erat abstulit ei: qui subripuerat dupli nihilo minus condemnatus est.
[ULPIANUS in his forty-second book on Sabinus.] A person who had lost a silver vessel brought an action for theft on that account. When there was a dispute about the weight of the vessel and the plaintiff said it was heavier, the thief produced the vessel; the owner took it away from him, but the one who had stolen it was nevertheless condemned to double the value.
rectissime iudicatum est: nam in actionem poenalem non uenit ipsa res quae subrepta est, siue manifesti furti siue nec manifesti agatur.
This was decided most correctly; for in a penal action, the stolen thing itself does not come into issue, whether the action is brought for manifest or non-manifest theft.
§47.2.48.1Qui furem nouit, siue indicet eum siue non indicet, fur non est, cum multum intersit, furem quis celet an non indicet: qui nouit, furti non tenetur, qui celat, hoc ipso tenetur.
A person who knows a thief, whether he denounces him or not, is not a thief; since there is a great difference between someone concealing a thief and not denouncing him. He who merely knows is not held liable for theft, whereas he who conceals is held liable by that very fact.
§47.2.48.2Qui ex uoluntate domini seruum recepit, quin neque fur neque plagiarius sit, plus quam manifestum est: quis enim uoluntatem domini habens fur dici potest?
It is more than clear that a person who receives a slave with the consent of his master is neither a thief nor a kidnapper; for who, having the consent of the master, can be called a thief?
§47.2.48.3Quod si dominus uetuit et ille suscepit, si quidem non celandi animo, non est fur, si celauit, tunc fur esse incipit.
But if the master forbade it and he received him, if indeed without the intention of concealing him, he is not a thief; if he concealed him, then he begins to be a thief.
qui igitur suscepit nec celauit etsi inuito domino, fur non est.
Therefore, one who received him but did not conceal him, even if against the will of the master, is not a thief.
uetare autem dominum accipimus etiam eum qui ignorat, hoc est eum qui non consensit.
Moreover, we understand "the master forbidding" to include even one who is ignorant, that is, one who did not consent.
§47.2.48.4Si ego tibi poliendum uestimentum locauero, tu uero inscio aut inuito me commodaueris Titio et Titio furtum factum sit: et tibi competit furti actio, quia custodia rei ad te pertinet, et mihi aduersus te, quia non debueras rem commodare et id faciendo furtum admiseris: ita erit casus, quo fur furti agere possit.
If I let out a garment to you to be cleaned, and you, without my knowledge or against my will, lend it to Titius, and a theft is committed against Titius: an action for theft lies for you, because the custody of the thing belongs to you, and for me against you, because you ought not to have lent the thing and by doing so you committed a theft; thus there will be a case where a thief can bring an action for theft.
§47.2.48.5Ancilla si subripiatur praegnas uel apud furem concepit, partus furtiuus est, siue apud furem edatur siue apud bonae fidei possessorem: sed in hoc posteriore casu furti actio cessat.
If a pregnant female slave is stolen, or conceives while with a thief, her offspring is a stolen thing, whether it is born while with the thief or with a bona fide possessor; but in this latter case, the action for theft does not lie.
sed si concepit apud bonae fidei possessorem ibique pepererit, eueniet, ut partus furtiuus non sit, uerum etiam usucapi possit.
But if she conceived while with a bona fide possessor and gave birth there, it will happen that the offspring is not a stolen thing, and can even be acquired by usucapion.
idem et in pecudibus seruandum est et in fetu eorum, quod in partu.
The same must also be observed with respect to beasts and their offspring, as was said regarding the birth of a slave.
§47.2.48.6Ex furtiuis equis nati statim ad bonae fidei emptorem pertinebunt, merito, quia in fructu numerantur: at partus ancillae non numeratur in fructu.
Offspring born of stolen horses will immediately belong to a bona fide purchaser, and rightly so, because they are reckoned as fruit; but the offspring of a female slave is not reckoned as fruit.
§47.2.48.7Cum fur rem furtiuam uendidisset eique nummos pretii dominus rei per uim extorsit, furtum eum nummorum fecisse recte responsum est: idem etiam ui bonorum raptorum actione tenebitur.
When a thief had sold a stolen thing, and the owner of the thing extorted the coins of the price from him by force, it was correctly answered that he committed a theft of those coins; he will also be held liable under the action for robbery.
quod enim ex re furtiua redigitur, furtiuum non esse nemini dubium est: nummus ergo hic, qui redactus est ex pretio rei furtiuae, non est furtiuus.
For no one doubts that what is realized from a stolen thing is not itself stolen; therefore, this money, which was realized from the price of the stolen thing, is not stolen.