#2 The Unfaithful Peacock, Part II

The peacock saga continues: is Claudia’s neighbour liable for theft?

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Dear Gaius,

Thank you for your reply (responsum). I’m sad that the peacock is no longer mine. I feel like I’ve been unfairly treated by my surly neighbour – after all, it was his fault the peacock ran away in the first place. Is there anything I can do?

Claudia Metella.

Dear Claudia,

You have a fair point; the peacock would not have lost its habit of returning (animus revertendi) had your surly neighbour not chased it away in the first place. I asked my good friend Pomponius for advice. Of course, I already knew the answer… I just wanted to check that we were of the same mind. Here’s what he had to say:

D. 47.2.37 (Pomp. 19 ad Sab.):

Si pavonem meum mansuetum, cum de domo mea effugisset, persecutus sis, quoad is perit, agere tecum furti ita potero, si aliquis eum habere coeperit.

If my tame peacock strays from my house and you chase it so that it gets lost, I can bring the action for theft against you, provided someone has taken the peacock into their possession.

Pomponius is a right laugh – great pal. But this a serious matter: thieves are the worst! Basically, your neighbour is liable for theft: you can bring the actio furti against him. That’s because he was the one responsible for the peacock losing its way, and consequently for it ending up in the possession of someone else (in your case, the surly neighbour himself). You won’t be able to get the peacock back though, unless it decides to return to you voluntarily (as I explained in my first letter).

Please be aware that I do not operate a ‘no win, no honorarium‘ policyI’m saving up for my next holiday to Baiae.

Yours keenly,

Gaius.

BACKGROUND:

Claudia’s first question (answered in The Unfaithful Peacock, Part I) concerned her rights with respect to the peacock in property law. In this question, she would like to know if her neighbour can be held personally accountable for her loss of ownership in the peacock. Again this inquiry belongs to the law of things (ius rerum); but this time we are firmly within the realm of obligations.

If Claudia wants to sue her neighbour, she must be able to show that he has committed a delict (in other words, a civil wrong, known as a ‘tort’ in common law jurisdictions). If he has, then he will be obliged to pay a sum of money to Claudia. The amount she can recover may exceed her loss; delictual actions in Roman law could be penal as well as compensatory. The relevant delict here is theft (furtum). In Roman law theft was a private matter: the victim was incentivised to sue the thief with the promise of double, or even quadruple, damages. The Romans took theft very seriously: a person who was condemned not only suffered financial consequences, but also incurred infamia.

The jurist Paul gave a definition of theft:

D. 47.2.1.3 (Paul. 39 ad ed.):

Furtum est contrectatio rei fraudulosa lucri faciendi gratia vel ipsius rei vel etiam usus eius possessionisve.

Theft is the dishonest handling of a thing in order to make gain either out of the thing itself or out of the use or possession thereof.

The critical element here is whether the neighbour’s chasing of the peacock constitutes ‘handling’ (contrectatio) within the meaning of the definition. Originally the meaning only seems to have covered physical asportation (furtum deriving, in Paul’s opinion, from the Greek for ‘to carry’, pherein). In time, however, non-physical interference with the property, such as Pomponius’ example of chasing a peacock, came to be accepted.

Provided Claudia can show the other requirements as well (e.g., that the neighbour had dishonest intent, committed the theft with a view to gain, etc.), she can recover. The extent of the damages she will receive is a question for another time.

 

Author: Peter Candy

Peter is a PhD Student at the University of Edinburgh writing on maritime law in the Roman world.

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