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Justinian I · The Digest of Justinian §47.2.54.pr-47.2.54.4

Theft Liabilities and Concurrent Actions in Loaned Property

Passage 7916 of 9271 · Latin

Summary

This chunk discusses liability for theft in cases of illegal entry, the concurrent actions available when a lent object is stolen by a slave, the theft actions and liability of volunteer managers and guardians, and the conditions under which a holder can bring a theft action against the owner.

[PAULUS libro trigesimo nono ad edictum. ] §47.2.54.prQui iniuriae causa ianuam effregit, quamuis inde per alios res amotae sint, non tenetur furti: nam maleficia uoluntas et propositum delinquentis distinguit.
[PAULUS in the thirty-ninth book on the Edict.] He who has broken open a door for the purpose of committing an injury, although property is carried away from there by others, is not liable for theft; for the will and intention of the offender distinguishes misdeeds.
§47.2.54.1Si seruus commodatoris rem subripuerit et soluendo sit is cui subreptum est, Sabinus ait posse et commodati agi cum eo et contra dominum furti serui nomine: sed si pecuniam, quam dominus exegit, reddat, euanescere furti actionem: idem et si remittat commodati actionem.
If a slave of the lender has stolen the property and he from whom it was stolen is solvent, Sabinus says that it is possible both to bring the action of loan against him and to bring the action of theft against the owner on account of the slave; but if he pays the money which the owner has exacted, the action of theft is extinguished; and the same applies if the lender waives the action of loan.
§47.2.54.2Quod si seruus tuus rem tibi commodatam subripuerit, furti tecum actio non est, quia tuo periculo res sit, sed tantum commodati.
But if your slave has stolen a thing lent to you, there is no action of theft against you, because the thing is at your risk, but only an action of loan.
§47.2.54.3Qui alienis negotiis gerendis se optulit, actionem furti non habet, licet culpa eius res perierit: sed actione negotiorum gestorum ita damnandus est, si dominus actione ei cedat.
He who has volunteered to manage the affairs of another does not have the action of theft, although the thing has been lost through his fault; but he is to be condemned in the action for business managed only if the owner assigns the action to him.
eadem sunt in eo, qui pro tutore negotia gerit, uel in eo tutore, qui diligentiam praestare debeat, ueluti qui ex pluribus tutoribus testamento datis oblata satisdatione solus administrationem suscepit.
The same is true of one who manages affairs on behalf of a guardian, or of a guardian who is bound to show diligence, such as one who, out of several guardians appointed by will, has alone undertaken the administration after offering security.
§47.2.54.4Si ex donatione alterius rem meam teneas et eam subripiam, ita demum furti te agere mecum posse Iulianus ait, si intersit tua retinere possessionem, ueluti si hominem donatum noxali iudicio defendisti uel aegrum curaueris, ut aduersus uindicantem iustam retentionem habiturus sis.
If you hold my property by the gift of another and I steal it, Julian says that you can bring the action of theft against me only if it is to your interest to retain possession, as, for example, if you have defended a gifted slave in a noxal action or have cured him when sick, so that you will have a lawful right of retention against the person claiming him.

Notes

  1. §47.2.54.prdistinguit — Although the subject consists of two nouns, `uoluntas et propositum` (will and intention), the verb `distinguit` is singular. This is because the two words are closely linked to form a single combined concept, or it represents an agreement with the nearest element.
  2. §47.2.54.1soluendo — The dative of the gerund of `soluere` (to pay), used in combination with `esse` (`soluendo esse`) as a legal idiom meaning "to be solvent" or "to be able to pay".
  3. §47.2.54.3ita... si — A correlative expression expressing a restrictive condition, meaning "only if..." or "on the condition that...". Here, it indicates that a volunteer manager who has lost property through negligence is to be condemned in the action for business managed only if the owner assigns the action (of theft) to him.
  4. §47.2.54.4tua — In the construction of the impersonal verb `interest` (it is of interest to...), when the person interested is the second person singular, the feminine ablative singular of the possessive pronoun `tua` is used instead of the genitive of the personal pronoun (`tui`).

Cite this passage

Justinian I, The Digest of Justinian §47.2.54.pr-47.2.54.4. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:47.2.54.pr-47.2.54.4

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