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Justinian I · The Digest of Justinian §47.2.76.pr

Promises Induced by False Agents and the Denial of Theft Actions

Passage 7938 of 9271 · Latin

Summary

Pomponius points out that if someone is induced to make a promise of debt by a person pretending to be an agent, an action of theft cannot be brought against that person, because there was no physical contact or movement of physical property.

[POMPONIUS libro uicensimo primo ad Quintum Mucium. ] §47.2.76.prSi is, qui simulabat se procuratorem esse, effecisset, ut uel sibi uel cui me delegauit promitterem, furti cum eo agere non possum, quoniam nullum corpus interuenisset, quod furandi animo contrectaretur.
[POMPONIUS, in the twenty-first book on Quintus Mucius.] If he who pretended to be an agent had brought it about that I promised either to himself or to someone to whom he delegated me, I cannot bring an action of theft against him, since no physical property was involved which could be handled with the intent of stealing.

Notes

  1. §47.2.76.prSi is ... effecisset ... non possum — The condition clause uses the subjunctive pluperfect (effecisset) to denote a past hypothesis, while the conclusion clause uses the indicative present (possum) to state the objective current legal consequence, forming a mixed conditional sentence.
  2. §47.2.76.prcui me delegauit — The dative antecedent ei is omitted before cui (for ei cui...). Here, delegare refers to 'delegation' (delegatio) in the law of obligations, meaning that the false agent designated a third party and had the debtor (me) make a promise of obligation (promissio) to that party.
  3. §47.2.76.prnullum corpus ... quod ... contrectaretur — The quod clause contains the subjunctive of characteristic (imperfect contrectaretur), modifying the antecedent corpus. Since the establishment of theft (furtum) in Roman law requires physical handling (contrectatio), a mere verbal promise (promissio) does not involve contact with physical property (corpus), and thus the action of theft is denied.

Cite this passage

Justinian I, The Digest of Justinian §47.2.76.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:47.2.76.pr

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