Having treated in the preceding Book of contractual and quasicontractual obligations, it remains to inquire into obligations arising from delict. The former, as we remarked in the proper place, are divided into four kinds; but of these latter there is but one kind, for, like obligations arising from real contracts, they all originate in some act, that is to say, in the delict itself, such as a theft, a robbery, wrongful damage, or an injury.

1 Theft is a fraudulent dealing with property, either in itself, or in its use, or in its possession: an offence which is prohibited by natural law.

2 The term furtum, or theft, is derived either from furvum, meaning 'black,' because it is effected secretly and under cover, and usually by night: or from fraus, or from ferre, meaning 'carrying off'; or from the Greek word phor, thief, which indeed is itself derived from pherein, to carry off.

3 There are two kinds of theft, theft detected in the commission, and simple theft: the possession of stolen goods discovered upon search, and the introduction of stolen goods, are not (as will appear below) so much specific kinds of theft as actionable circumstances connected with theft. A thief detected in the commission is termed by the Greeks ep'autophoro; in this kind is included not only he who is actually caught in the act of theft, but also he who is detected in the place where the theft is committed; for instance, one who steals from a house, and is caught before he has got outside the door; or who steals olives from an olive garden, or grapes from a vineyard, and is caught while still in the olive garden or vineyard. And the definition of theft detected in the commission must be even further extended, so as to include the thief who is caught or even seen with the stolen goods still in his hands, whether the place be public or private, and whether the person who sees or catches him be the owner of the property, or some third person, provided he has not yet escaped to the place where he intended to take and deposit his booty: for if he once escapes there, it is not theft detected in the commission, even if he be found with the stolen goods upon him. What is simple theft is clear from what has been said: that is to say, it is all theft which is not detected in the commission.

4 The offence of discovery of stolen goods occurs when a person's premises are searched in the presence of witnesses, and the stolen property is found thereon; this makes him liable, even though innocent of theft, to a special action for receiving stolen goods. To introduce stolen goods is to pass them off to a man, on whose premises they are discovered, provided this be done with the intent that they shall be discovered on his premises rather than on those of the introducer. The man on whose premises they are found may sue the latter, though innocent of theft, in an action for the introduction of stolen goods. There is also an action for refusal of search, available against him who prevents another who wishes to look in the presence of witnesses for stolen property; and finally, by the action for nonproduction of stolen goods, a penalty is imposed by the praetor's edict on him who has failed to produce stolen property which is searched for and found on his premises. But the lastnamed actions, namely, those for receiving stolen goods, for introducing them, for refusal of search, and for nonproduction, have now become obsolete: for the search for such property is no longer made in the old fashion, and accordingly these actions went out of use also. It is obvious, however, that any one who knowingly receives and hides stolen property may be sued by the action for simple theft.

5 The penalty for theft detected in the commission is four times the value, and for simple theft twice the value, of the property stolen, whether the thief be a slave or a free person.

6 Theft is not confined to carrying away the property of another with the intent of appropriation, but comprises also all corporeal dealing with the property of another against the will of the owner. Thus, for a pawnee to use the thing which he has in pawn, or to use a thing committed to one's keeping as a deposit, or to put a thing which is lent for use to a different use than that for which it was lent, is theft; to borrow plate, for instance, on the representation that the borrower is going to entertain his friends, and then to carry it away into the country: or to borrow a horse for a drive, and then to take it out of the neighbourhood, or like the man in the old story, to take it into battle.

7 With regard, however, to those persons who put a thing lent for use to a different purpose than the lender contemplated, the rule is that they are guilty of theft only if they know it to be contrary to the will of the owner, and that if he had notice he would refuse permission; but if they believe that he would give permission, it is not theft: and the distinction is just, for there is no theft without unlawful intention.

8 It is also said not to be theft if a man turns a thing lent for use to a use other than he believes its owner would sanction, though in point of fact its owner is consenting. Whence arose the following question: if Antoninus solicits the slave of Peri to steal property of the latter, and convey it to him, and the slave informs Peri of it, who, wishing to detect Antoninus in the very act, allows the slave to convey the property to him; can an action of theft, or for corrupting the slave, or neither, be maintained against Antoninus? The case was submitted to us, and we examined the conflicting opinions of the earlier jurists on the matter: some of whom thought that neither action lay, and others, that Peri might sue on theft only. But we, in order to put an end to such quibbles, have enacted by our decision that in such case both the action on theft and that for corrupting a slave shall lie. It is true that the slave has not been corrupted by the advances made to him, so that the case does not come within the rules which introduced the action for such corruption: yet the wouldbe corrupter's intention was to make him dishonest, so that he is liable to a penal action, exactly as if the slave had actually been corrupted, lest his immunity from punishment should encourage others to perpetrate a similar wrong on a slave less strong to resist temptation.

9 A free man too may be the subject of a theft—for instance, a child in my power, if secretly removed from my control.

10 So too a man sometimes steals his own property—for instance, a debtor who purloins the goods which he has pledged to a creditor.

11 Theft may be chargeable on a person who is not the perpetrator; on him, namely, by whose aid and abetment a theft is committed. Among such persons we may mention the man who knocks money out of your hand for another to pick up, or who stands in your way that another may snatch something from you, or scatters your sheep or your oxen, that another may steal them, like the man in the old books, who waved a red cloth to frighten a herd. If the same thing were done as a frolic, without the intention of assisting a theft, the proper action is not theft, but on the case. Where, however, Titius commits theft with the aid of Maevius, both are liable to an action on theft. A man, too, is held to have aided and abetted a theft who places a ladder under a window, or breaks open a window or a door, in order that another may steal, or who lends tools for the breaking of them open, or a ladder to place under a window, if he knows the object for which they are borrowed. It is clear that a man is not liable on theft, who, though he advises and instigates an offence, does not actually aid in its commission.

12 If a child in power, or a slave, steal property of his father or master, it is theft, and the property is deemed stolen, so that no one can acquire it by usucapion until it has returned into the hands of the owner; but no action will lie on the theft, because between a son in power and his father, or between a slave and his master, no action will lie on any ground whatsoever. But if the offender is aided and abetted by a third person, the latter is liable to an action on theft, because a theft has in fact been committed, and by his aid and abetment.

13 The action on theft will lie at the suit of any person interested in the security of the property, even though he be not its owner: indeed, even the owner cannot maintain the action unless he suffers damage from the loss.

14 Hence, when a pawn is stolen the pawnee can sue, even though his debtor be perfectly able to pay the debt; for it is more advantageous to him to rely on the pledge, than to bring a personal action: and this rule is so unbending that even the pawnor who steals a pawn is suable for theft by the pawnee.

15 So, if clothes are delivered to be cleaned or finished or mended for a certain remuneration, and then are stolen, it is the fuller or tailor who can sue on the theft, and not the owner; for the owner suffers nothing by the loss, having the action of letting against the fuller or tailor for the recovery of his property. Similarly a purchaser in good faith, even though a good title as owner is not given to him, can bring the action of theft if the property is stolen, exactly like the pawnee. The action is, however, not maintainable at the suit of a fuller or tailor, unless he is solvent, that is to say, unless he is able to fully indemnify the owner; if he is insolvent, the owner cannot recover from him, and so can maintain an action against the thief, being, on this hypothesis, interested in the recovery of the property. Where the fuller or tailor is only partly instead of wholly solvent the rule is the same.

16 The older lawyers held that what has been said of the fuller and tailor applied also to the borrower for use, on the ground that as the remuneration which the fuller receives makes him responsible for custody, so the advantages which the borrower derives from the use requires him to keep it safely at his peril. Our wisdom, however, has amended the law in this particular in our decisions, by allowing the owner the option of suing either the borrower by action on the loan, or the thief by action of theft; though when his choice has been determined he cannot change his mind, and resort to the other action. If he prefers to sue the thief, the borrower is absolutely released from liability; but if he proceeds against the borrower, he cannot in any way himself sue the thief on the stealing, though this may be done by the borrower, who is defendant in the other action, provided that the owner knew, at the time when he began his action against the borrower, that the thing had been stolen. If he is ignorant of this, or even if he is merely doubtful whether the borrower still has the property in his possession or not, and sues him on the loan, he may, on subsequently learning the facts, and if he wishes to drop the action which he has commenced, and sue the thief instead, adopt this course, in which case no obstacle is to be thrown in his way, because it was in ignorance that he took action and sued the borrower on the loan. If, however, the owner has been indemnified by the borrower, in no case can he bring the action of theft against the thief, as his rights of action pass to the person who has compensated him for the loss of his property. Conversely it is clear, that if, at the outset, the owner began an action on the loan against the borrower, not knowing that the property had been stolen, and subsequently, on learning this, proceeded against the thief instead, the borrower is absolutely released from liability, whatever may be the result of the owner's action against the thief; the rule being the same, whether the borrower be wholly or only partially insolvent.

17 As a depositary is not answerable for the safe keeping of the thing deposited, but only for fraud, and, if it is stolen, is not compellable to make restitution by action of deposit, he has no interest if it is lost, and therefore the action of theft is maintainable only by the depositor.

18 Finally, it has been a question whether a child below the age of puberty, who carries away the property of another, is guilty of theft. The answer is that, as theft depends on intention, obligation by theft is not incurred unless the child is near puberty, and so understands its delinquency.

19 The object of the action on theft, whether it be for double or quadruple the value of the goods stolen, is merely the recovery of the penalty; to recover the goods themselves or their value the owner has an independent remedy by vindication or condiction. The former is the proper remedy when it is known who is in possession of the goods, whether this be the thief or any one else: the latter lies against the thief or his heir, whether in possession of the stolen property or not.