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.
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, 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.
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.
Contrectatio meant "handling" and was established as the prohibited action associated with furtum before the end of the Roman Republic.
[2] Contrectatio extended to dealing with the thing as if the owner,[3] and "physical interference" can be considered a more accurate term than just touching.
[4] The idea of furtum, and conrectatio in particular, broadened during the republic to complement the narrowly defined Lex Aquilia.
[7] 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.
In a notable example, a man, acting dishonestly, calls a mule-driver to court frivolously, which caused the mules to be lost.
Infantes (young children) and furiosi ("lunatics") were considered incapable of formulating the necessary intention and could therefore not commit furtum.
[14][18] The lower standard of care required of a depositee meant he could not be sued by a depositor, and so had no action available for furtum.
[16] A subsequent rise in the value of the thing stolen whilst the claim was being brought was borne by the defendant, if found liable.
Ulpian reports that criminal proceedings were more common, and Julian that a successful prosecution prevented a civil action under furtum.
[27] Gaius reports that manifest theft brought a penalty of a severe flogging and enslavement for freemen.
[29] The manifest thief was at the time of the Twelve tables was not given a full trial, his case merely adjudicated by a magistrate.
[30] The verbal warning was designed to make the act of killing more public, and prevent it being an underhand way of committing murder.
[32] By the classical period, physical punishment had been abandoned for manifest theft and Gaius records merely four-times damages, introduced by the praetor.
[33] Julian (jurist), Ulpian, and Justinian all described it as including the thief who was still carrying the thing to its intended hiding place.
[34] The actio furti concepti was available against the occupier of the building in which the stolen goods were found, regardless of his knowledge of them and brought three-times damages.
[22] There was a further action available to the respondent of an actio furti concepti who had been found liable: he could sue the person who gave it to him, for the extent of his own liability.
Searches were carried out by public authorities, and the wide definition of theft covered a bad faith receiver of goods.