BOOK III. Pt. I. Ch. II. « Cf. Moyle on Excepted are certain kinds of gifts. Ib. § 305: Item excipit: si quis mulieri virginive cognatus dotem conferre volet'; igitur quocumque gradu cognatus dotis nomine donare potest.' Paul. v. 11, § 6: Ei, qui aliquem a latrunculis vel hostibus eripuit, in infinitum donare non prohibetur (si tamen donatio et non merces eximii laboris appellanda est): quia contemplationem salutis certo modo aestimari non placuit. The form of judicial insinuatio'a (declaration made Inst. i. 11, 12. in court, professio apud acta) was prescribed for gifts to non exceptae personae, and by Constantine for all gifts; but after many fluctuations of legislation, this form continued to be requisite in the latest Law (a constitution of Justinian of 531) alone for gifts above 500 solidi, with some exceptions. Omission of the insinuatio leads to the invalidity of the gift, so far as it exceeds the amount named. In the older Law, the patron could at discretion revoke the gift he had made to his libertus; later on, only in certain cases; but according to the Law of betrothed persons of either sex.-It excepts the guardian, who exercises a tutela, if he desire to make such gift; for, inasmuch as guardians are strictly like parents of the wards, it permitted them to make gifts without limit.-A further exception is: 'whoever accepts from his slave.' Freedmen are comprised in these words, that they can give to their patrons. On the other hand, can freedmen be excluded likewise by the patrons ? This law also we employ lest they may be regarded as excluded. 1 It contains also the following exception: Whatever cognate desires to bestow a gift on a woman or a maiden'; and so a cognate in any degree can make a gift under the name of dos. 2 No restriction is placed upon a perpetual gift to him who has delivered any one from highwaymen or enemies (though it have to be called a donatio, and not a reward for extraordinary service); because it has not been thought well to put a fixed valuation upon regard for safety. Justinian every gift is revocable for base ingratitude of the donee, except such gifts as are mentioned in Paul. v. 11, § 6, supra. § 130. OBLIGATIONES EX DELICTO IN GENERAL." BOOK III. Pt. I. Ch. II. a SceAnct. Law,' pp. 367 s. 600, also 6 See Anct. Stephen, His. Crim. Law of DELICTA privata-in contrast with publica, i.e., 372; Mkby. crimina―are illicit and illegal acts, which ground ch. xvi. independent obligations. The object of the obligation Law,' pp. 372, is either compensation for the injury done, or payment 892., and of a pecuniary penalty (poena sc. privata) to the party tory of the injured, or, as a rule, both at the same time: actiones rei persecutoriae, poenales, mixtae.o The wrongdoer is, ch. ii. as a rule, only responsible for dolus, sometimes indeed Inst. iv. 6. §§ 16-18. for culpa. Finally, all obligationes ex delicto agree in being passively untransmissible.d-In the course of a § 25. time the delicts committed by dolus admitted also of criminal prosecution, so that the party injured had the choice of public or private redress. § 131. FURTUM. d FURTUM is the corporal dealing with a movable thing, done with intent to obtain an illegal advantage by its appropriation (dolus, animus furandi), by which dealing some one, violating property of another, illegally usurps the thing itself, if it be another's; or the use of it, if it be entrusted to him; or the possession of it, Cf. Stephen, if, while it is his own, it is in the disposition of another.f e 1. c. pp. 30, sqq. ƒ Cf. Gai. ii. Paul. Furtum est contrectatio rei fraudulosa $$ 45, 899.; D. 41, 1, 9, 8; lucri faciendi gratia: vel rei ipsius, vel etiam usus 47, 2, 74 (73). eius possessionisve.-1. 1, § 3, D. h. t. (de furt. 47, 2).1 : Cels. Infitiando depositum nemo facit furtum; nec enim furtum est ipsa infitiatio, licet prope 1 Theft is the fraudulent meddling with a thing in order to make profit, either with the thing itself or even the use or possession of it. BOOK III. Pt. I. Ch. 1. " §§ 153, ad fin, 155. furtum sit sed si possessionem eius adipiscatur intervertendi causa, facit furtum.-1. 68 pr. eod.' Paul. Si locatum Si locatum tibi servum subripias, utrumque iudicium adversus te est exercendum, locati et furti.-D. 19, 2, 42.3 : Id. Si tibi centum dedero, ut ea Titio dares, tuque non dederis sed consumpseris, furti teneri te Proculus ait.-D. 17, 1, 22, 7.3 Scaev. Furtum fit, cum quis indebitos nummos sciens acceperit.-D. 13, 1, 18.* Sabinus ap. Gell. xi. 18, § 21: Qui alienum [quid] iacens lucri faciendi causa sustulit, furti obstringitur, sive scit, cuius sit, sive nescit.-(= 1.-43, § 4, h. t.)3 Paul. Rei hereditariae furtum non fit, sicut nec eius, quae sine domino est, et nihil mutat existimatio subripientis.-D. 47, 19, 6.-Gai. iii. § 201 Interdum alienas res occupare concessum est nec creditur furtum fieri, velut res hereditarias, quarum heres non est nactus possessionem, nisi necessarius heres extet.a 6 1 By denying a deposit no one commits a theft; for the theft is not the denial itself, although it borders upon it; but if he acquires possession of it for embezzlement, he does commit a theft. "If you steal a slave let out to you, both actions should be employed against you-of letting and theft. 3 If I have given you 100 [aurei] for you to give them to Tit., and you have not given them, but have spent them, Proc. says you are liable for theft. A theft is committed when a man advisedly accepts money not owing to him. He that with avaricious intent has taken property of another lying before him is liable for theft, whether he knows to whom it belongs or does not. No theft occurs of hereditary property, as little as of that without an owner, and the belief of the thief makes no difference. -We are sometimes allowed to take possession of another's property and acquire a title to it by use, and no theft is held to have been committed; as, for instance, in the case of things Pt. I. Ch. II. Labeo si quis cum sciret quid sibi subripi, BOOK III. non prohibuit, non potest furti agere. Paulus: immo contra; nam si quis scit sibi rapi et, quia non potest prohibere, quievit, furti agere potest; at si potuit prohibere nec prohibuit, nihilominus furti aget.-1. 92, h. t.1 Gai. iii. § 198: Sed et si credat aliquis, invito domino se rem contrectare, domino autem volente id fiat, dicitur furtum non fieri. Unde illud quaesitum est: cum Titius servum meum sollicitaverit, ut quasdam res mihi subriperet et ad eum perferret, servus id ad me pertulit; ego dum volo Titium in ipso delicto deprehendere, permisi servo quasdam res ad eum perferre-2 Ib. iii. § 197 Furtum sine dolo malo [affectu furandi] non committitur.-§ 7, I. h. t. 4, 1.3 Sabin. ap. Gell. 1. c. § 20: Qui alienam rem adtrectavit, cum id se invito domino facere iudicare deberet, furti tenetur.* Ulp. Sed si non fuit derelictum, putavit belonging to an inheritance, of which the heir has not yet obtained possession, unless there be a necessary heir. 1 Lab. if a man, when he knew something was being stolen from his person, did not forbid it, he cannot sue for a theft. Paul. nay, on the contrary, for if a man knows that (something) is snatched from him and, from his not being able to forbid it, has kept his peace, he can sue for a theft; but if he was able to forbid it and did not, he will none the less sue for a theft. 2 But even if a person believe he is meddling with a thing against the will of the owner, yet if the owner consent to such act, it is said that no theft is committed. Whence arises this question: when Tit. has worked upon my slave to steal certain things from me, and carry them to him, and the slave has brought me information of it, I, wishing to detect Tit. in the very act, allowed the slave to carry some things to him—. 3 Theft is not committed without unlawful intention [the intention of stealing]. 4 He that has appropriated property of another, when he ought to have accounted that he did it against the will of the owner, is liable for theft. BOOK III. Pt. I. Ch. II. a Cf. ib. 1. 4, supr. Se. Sabini, libro de furtis. tamen derelictum, furti non tenetur.-1. 43, § 6, h. t.ai Gai. Species lucri est, ex alieno largiri et beneficii debitorem sibi adquirere: unde et is furti tenetur qui ideo rem amovet, ut eam alii donet.-1. 55, § 1 eod. Gell. 1. c. § 13: In quo id quoque scriptum est, quod vulgo inopinatum est, non hominum tantum neque rerum moventium, quae auferri occulte et subripi possunt, sed fundi quoque et aedium fieri furtum: condemnatum quoque colonum, qui fundo, quem conduxerat, vendito possessione eius dominum intervertisset." Gai. Abolita est quorundam veterum sententia existimantium etiam fundi locive furtum fieri. -D. 41, 3, 38.* Gai. iii. § 199: Interdum autem etiam liberorum hominum furtum fit, velut si quis liberorum nostrorum, qui in potestate nostra sint, sive etiam uxor, quae in manu nostra sit, sive etiam iudicatus vel auctoratus meus subreptus fuerit. Ib. §§ 195-197: Furtum autem fit non 1 But if it was not abandoned, but he thought it was, he is not liable for theft. 2 "It is a kind of gain, to make a liberal use of property of another and acquire for oneself a debtor of the munificence; whence also he is liable for theft who removes a thing to bestow it upon another. 3 Wherein [i.e., the work of Sab. upon thefts] also is found written what is commonly unexpected, that not only can a theft take place of slaves and of movables which can privily be removed and stolen, but also of a farm and house; that a tenant also is guilty who, having sold a farm that he had hired, had defrauded the owner of the possession thereof. The opinion has been long rejected of certain old jurists, who thought that there could be a theft even of a field or a place. 5 But sometimes a theft will be committed of free persons, as, for instance, if any one of our children under our power, or even a wife in our manus, or even my judgment-debtor, or my hired gladiator has been kidnapped. |