#3 Finders Keepers?

Gaius explores a case of theft-by-finding.

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Dear Gaius,

I was out shopping for a new chariot earlier and I found a pouch containing 20 sesterces (HS 20) just lying on the floor. I picked it up and took it home, but I think some bystanders saw me. I’m an honest bloke really. What should I do?

Gaius Appuleius Diocles.

Dear Diocles,

Your case is very similar to one that came up recently in the news:

A woman who kept a £20 note she found in a shop has been convicted of theft.

NN, 23, picked up the cash at a branch of One Stop, in Blurton, Stoke-on-Trent, after it was dropped by a customer who withdrew it from a nearby cash machine, police said.

NN pleaded guilty at North Staffordshire Justice Centre after seeing CCTV evidence.

NN must also pay £20 compensation, a £20 victim surcharge and £135 in court costs.

Of course, theft in Roman law is a private mater; but you don’t want to end up with infamia all the same! Lucky you called Gaius. Here’s my advice.

We’re dealing here with theft-by-finding. Again, Paul’s 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.

On a straightforward reading of the facts, a theft has occurred: you handled the HS 20 dishonestly with the intent to make a gain.

Harsh stuff. But all is not lost. I consulted my friend Ulpian, who says there are a few ways you could try to get around it (D.47.2.43 Ulp. 41 ad Sab.):

  • ‘I thought it was abandoned’:

If you believed that the money had been abandoned (even if, in fact, it was not), then your handling of the HS 20 was not dishonest (fraudulosa), and it follows that no theft occurred.

ABSOLVED.

  • ‘I knew the £20 note belonged to someone, but I didn’t know who’:

As Ulpian says:

Qui alienum quid iacens lucri faciendi causa sustulit, furti obstringitur, sive scit cuius sit sive ignoravit: nihil enim ad furtum minuendum facit, quod cuius sit ignoret.

A man who, for personal gain, takes away a thing belonging to another is guilty of theft, whether he knows the identity of the owner or not; for it in no way minimizes the fact of theft if the owner of the object is unknown (trans. Watson).

Don’t try this one: CONDEMNED!

  • ‘I knew the £20 note belonged to someone, and I picked it up with the intention of returning it’:

Going back to Paul’s definition, there can be no theft without the intention to make a gain. Ulpian says that if you put up a notice stating that you will return the money to anyone who can prove it as their own, then this will be good evidence of your lack of intent. Even better, though, is that you can offer it for a reward:

Quid ergo, si εὕρετρα quae dicunt petat? nec hic videtur furtum facere, etsi non probe petat aliquid.

But what if the finder claims a reward, εὕρετρα, as it is called? I do not think that even he commits theft, though it is not quite honourable to make such a demand (trans. Jolowicz).

My advice is therefore to offer the HS 20 for a reward (say, 10 sesterces?), and for good old Gaius to keep a cut for his ingenuity. This way you will be ABSOLVED.

Up the Reds!

Gaius.

Further Reading:

Powell, Raphael. ‘Furtum by a Finder’. Tulane Law Review 33 (1958): 509–24.

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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