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furtum
''Furtum'' was a delict of Roman law comparable to the modern offence of theft (as it is usually translated) despite being a civil and not criminal wrong. In the classical law and later, it denoted the contrectatio (“handling”) of most types of property with a particular sort of intention – fraud and in the later law, a view to gain. It is unclear whether a view to gain was always required or added later, and, if the latter, when. This meant that the owner did not consent, although Justinian broadened this in at least one case. The law of ''furtum'' protected a variety of property interests, but not land, things without an owner, or types of state or religious things. An owner could commit theft by taking his things back in certain circumstances, as could a borrower or similar user through misuse.
The Romans distinguished between "manifest" and "non-manifest theft" based on how close to the scene of the crime the thief was caught, although exactly where the line was debated by jurists. Under the Twelve Tables, death or flogging could be expected for a manifest thief, later changed to damages of four times the thing. The penalty for non-manifest theft was two times. There were complementary actions against the occupier of the property where the stolen goods were found, if the defendant did not bring the thing to court or refused a search. ''Vindicatio'' or ''condictio'' could also be undertaken by the owner of the thing, in addition to an action under ''furtum''.
==Contrectatio==
''Contrectatio'' meant "handling" and was established as the prohibited action associated with ''furtum'' before the end of the republic.〔 ''Furtum'' had in the early and mid-Republic required the carrying away of a thing. This was widened and there are several examples from the classical Rome and later where it is even hard to find physical contact in any sense.〔 ''Contrectatio'' extended to dealing with the thing as if the owner,〔 and "physical interference" can be considered a more accurate term than just touching.〔 The idea of ''furtum'', and ''conrectatio'' in particular, broadened during the republic to complement the narrowly defined Lex Aquilia.〔 This did, for example, include using a borrowed thing in a way which went beyond that agreed with the lender (''furtum usus''), such as borrowing a horse and riding it for longer than agreed.〔 During the Republic, no distinction was made in language between ''furtum usus'' and ''furtum'' in general.〔 ''Contrectio'' included what might be thought of as fraud: knowingly accepting a wrongful payment, or embezzlement, for example. The case of wrongful payment is problematic, because a mistaken payment still transferred ownership; it seems contradictory that the receiver was granted ownership and still liable for theft.〔 To accept a thing as a pledge knowing that it did not belong to the pledgor was also ''furtum'' – not merely acting as an accomplice.〔 Plautus, a playwright, suggests that failing to report a theft after the fact was ''furtum'', but this should not be assumed.〔 The development of ''contrectio'' as the preferred prohibited act accompanied that of the criminal law, the ''actio doli'' (for fraud) and the Aquilian actions.
An accomplice could be sued if he had provided help ''ope consilio'' – a physical act relating to the method of execution, rather than mere encouragement.〔 It appears that Labeo was the first to require help ''or'' advice, and earlier sources suggest that both help ''and'' advice was required.〔 Labeo's version was certainly entrenched by the early second century AD.〔 An accomplice was treated as if he himself had committed the crime. Only one person needed to have handled the thing for all wrongdoers to be liable. Republican jurists were harder on accomplices than later jurists under the empire.〔 Indeed, Ulpian considers the unwitting accomplice, who accidentally knocks out of the victim's hand some coins which are then stolen, an accomplice to the theft.〔 Some commentators have gone as far to say that the ''veteres'' ("ancients") may not have even required a third party to remove the coins, as long as they were otherwise lost to the owner.〔
抄文引用元・出典: フリー百科事典『 ウィキペディア（Wikipedia）』
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