Corpus iurisprudentiae Romanae

Repertorium zu den Quellen des römischen Rechts
Dig. XXV2,
De actione rerum amotarum
Liber vicesimus quintus
II.

De actione rerum amotarum

(Concerning the Action to Recover Property Which Has Been Removed.)

1 Paulus libro septimo ad Sabinum. Rerum amotarum iudicium singulare introductum est adversus eam quae uxor fuit, quia non placuit cum ea furti agere posse: quibusdam existimantibus ne quidem furtum eam facere, ut Nerva Cassio, quia societas vitae quodammodo dominam eam faceret: aliis, ut Sabino et Proculo, furto quidem eam facere, sicut filia patri faciat, sed furti non esse actionem constituto iure, in qua sententia et Iulianus rectissime est:

1 Paulus, On Sabinus, Book VII. The action having reference to property which has been removed is a peculiar one, and is brought against a woman who was formerly the wife of the plaintiff, for it was not held to be advisable that an action for theft should be brought against her; and certain authorities, like Nerva and Cassius, have thought that she did not commit a theft, because the partnership of married life rendered her, to a certain extent, the owner of the property in question. Others, such as Sabinus and Proculus, hold that she does, in fact, commit a theft, just as a daughter can steal from her father, but that no action for theft is established by law. Julianus very properly adopts this opinion.

2 Gaius libro ... ad edictum praetoris titulo de re iudicata. nam in honorem matrimonii turpis actio adversus uxorem negatur:

2 Gaius, On the Work Entitled, The Edict of the Prætor; Title, Decisions. For, on account of the honor attaching to marriage, an action against the wife implying infamy is refused.

3 Paulus libro septimo ad Sabinum. et ideo, si post divortium easdem res contrectat, etiam furti tenebitur. 1Item si servus eius furtum fecerit, furti cum ea agere possumus. 2Sed et cum uxore furti agere possibile est, si ei cui heredes simus furtum fecit, vel nobis antequam nuberet: tamen propter reverentiam personarum in utroque casu furtivam tantum condictionem competere, non etiam furti actionem dicimus. 3Item verum est quod Ofilius ait etiam eas res, quas divortii tempore mulier comederit vendiderit donaverit qualibet ratione consumpserit, rerum amotarum iudicio contineri. 4Si filia familias res amoverit, Mela Fulcinius aiunt de peculio dandam actionem, quia displicuit eam furti obligari: vel in ipsam ob res amotas dari actionem. sed si pater adiuncta filia de dote agat, non aliter ei dandam actionem, quam si filiam rerum amotarum iudicio in solidum et cum satisdatione defendat. sed mortua filia in patrem rerum amotarum actionem dari non oportere Proculus ait, nisi quatenus ex ea re pater locupletior sit

3 Paulus, On Sabinus, Book VII. Therefore, if, after a divorce a woman should appropriate the same property, she will also be liable for theft. 1Moreover, we can bring an action for theft against a woman where her slave has committed the theft. 2It is also possible to bring an action for theft against a woman, if we should become the heir to the party from whom the property was stolen, or if she had stolen from us before we married her. Still, on account of the respect due to persons under such circumstances, in both cases, we hold that only an action for theft to recover the property will lie, and not a penal one based on that offence. 3It is also true, as Ofilius says, that all property which the woman has consumed, sold, donated, or used up in any way whatsoever, at the time of the divorce, should also be included in the suit for property appropriated by her. 4Where a daughter under paternal control fraudulently appropriates property, Mela and Fulcinius say that an action de peculio should be granted, because it was not considered advisable that she should be liable for theft, or that an action should be brought against her on the ground of property wrongfully appropriated. If, however, a father, together with his daughter, brings an action on dowry, an action should not be granted him, unless he gives security to defend his daughter for the entire amount, in a suit for property improperly appropriated. But where the daughter is dead, Proculus says that an action should not be granted against the father, on the ground of property wrongfully appropriated, unless to the extent that he has been pecuniarily benefited by the transaction,

4 Pomponius libro sexto decimo ad Sabinum. dolove malo fecerit, quo minus ad eum perveniret.

4 Pomponius, On Sabinus, Book XVI. Or where he has been guilty of fraud in order to prevent the property from coming into his possession.

5 Papinianus libro undecimo quaestionum. Viva quoque filia, quod ad patrem ex rebus amotis pervenit, utili iudicio petendum est.

5 Papinianus, Questions, Book XI. All equitable actions to recover property wrongfully appropriated, which has come into his hands, can be brought against the father even during the lifetime of his daughter.

6 Paulus libro septimo ad Sabinum. Contra nurum quoque socero hoc iudicium dandum Atilicinus et Fulcinius aiunt, quotiens filio familias dos data est: 1socerum ob res divortii causa amotas furti agere non posse. 2Item cum rerum amotarum etiam in virum datur iudicium: si filius familias maritus sit, utrum de peculio an in ipsum actio dari debeat? eadem repetemus, quae de filia familias diximus. 3Si post divortium maritus decesserit, heres eius rerum amotarum iudicio uti potest. 4Item heres mulieris ex hac causa tenebitur, sicut condictionis nomine ex causa furtiva. 5Sed si morte mariti solutum sit matrimonium, heres mariti hereditatis petitione vel ad exhibendum actione eas consequi poterit. Aristo et condici ei posse recte putat, quia ex iniusta causa apud eam essent. 6Quod si mortuo viro amoverit, non facit furtum, quia rei hereditariae nondum possessae non fit furtum: ideoque aut vindicari poterunt aut in hereditatis petitionem venient.

6 Paulus, On Sabinus, Book VII. Atilicinus and Fulcinius say that this action can be granted to a father-in-law against his daughter-in-law. 1Whenever a dowry is given to a son under paternal control, the father-in-law cannot bring an action for theft, where property has been appropriated by reason of a divorce. 2This action for property wrongfully appropriated is also granted against the husband if he is a son under paternal control, but shall such an action be granted directly against him, or merely with reference to the peculium? We repeat here the same rule which we have already stated applies to a daughter under paternal control. 3If the husband should die after the divorce, his heir can bring the action for the recovery of property fraudulently appropriated. 4The heir of the woman is also liable in an action of this kind, just as he would be in one for the recovery of stolen property. 5Where the marriage is dissolved by the death of the husband, his heir can recover the property either by an action for the partition of the estate, or by one for its production in court. Aristo thinks very properly that he can bring a personal action for restitution against the woman, because the property is unjustly in her possession. 6Where a woman appropriates property after the death of her husband, she does not commit theft, because a theft of property belonging to an estate which is not yet in the possession of anyone cannot be committed; and therefore the heir can bring suit to recover the property, or can file a petition claiming the estate.

7 Ulpianus libro trigesimo sexto ad Sabinum. Mulier habebit rerum amotarum actionem adversus virum et compensare potest mulier cum actione, qua maritus agere vult ob res amotas.

7 Ulpianus, On Sabinus, Book XXXVI. A wife is entitled to an action against her husband for the recovery of property fraudulently appropriated, and she can set off the claim in her action against that made by the husband, where he brings suit for the same cause.

8 Pomponius libro sexto decimo ad Sabinum. Si, cum dos solveretur mulieri aut satis doti fieret, dictum non esset actum iri rerum amotarum, nihilo minus agi potest: nam et cum dos nulla sit, eadem actio datur. 1Sabinus ait, si mulier res quas amoverit non reddat, aestimari debere quanti in litem vir iurasset

8 Pomponius, On Sabinus, Book XVI. If, when the dowry is paid to the wife or security is given to insure its payment, it should not be stated that the husband shall have a right to bring an action for the recovery of property wrongfully appropriated, he can, nevertheless, bring such an action; for he has a right to do so even where there is no dowry to be returned. 1Sabinus says that if a wife does not return the property which she has wrongfully appropriated, judgment shall be rendered against her for the amount which her husband will swear to in court.

9 Paulus libro trigesimo septimo ad edictum. (non enim aequum est invitum suo pretio res suas vendere)

9 Paulus, On the Edict, Book LVII. For it is not just that the husband should be compelled to sell his own property, even for its full value, if he is unwilling to do so.

10 Pomponius libro sexto decimo ad Sabinum. ideoque nec debere eum pro evictione promittere, quod ex contumacia mulieris id ita acciderit.

10 Pomponius, On Sabinus, Book XXXVI. Therefore, he should not be obliged to furnish any guarantee against eviction, because the affair took place through the obstinacy of his wife.

11 Ulpianus libro trigesimo tertio ad edictum. Marcellus libro octavo digestorum scribit, sive vir uxorem sive uxor virum domo expulit et res amoverunt, rerum amotarum teneri. 1Qui rerum amotarum instituit actionem si velit magis iusiurandum deferre, cogitur adversarius iurare nihil divortii causa amotum esse, dum prius de calumnia iuret qui iusiurandum defert. 2Iurare autem tam vir quam uxor cogetur. pater autem amoventis iurare non cogitur, cum iniquum sit de alieno facto alium iurare: is ergo cogitur iurare, qui amovisse dicitur. et idcirco nec heres eius, qui quaeve amovisse dicetur, iurare cogetur. 3Si quis delatum sibi iusiurandum referre velit, non videtur praetor permisisse,

11 Ulpianus, On the Edict, Book XXXIII. Marcellus stated in the Eighth Book of the Digest that whether a husband drove his wife, or a wife her husband, from the house, and removed the property, either would be liable to an action for the recovery of property wrongfully appropriated. 1Where anyone institutes proceedings for the recovery of property wrongfully appropriated, if he prefers to tender an oath, his adversary will be compelled to swear that nothing was appropriated at the time of the divorce; provided whoever tenders the oath himself or herself first takes the oath de calumnia. 2The husband, as well as the wife, is compelled to take the oath with reference to property wrongfully appropriated. But the father of him or her who appropriated the property is not obliged to be sworn, as it would be unjust for anyone to take an oath relating to the act of another. That party, therefore, is compelled to take the oath who is said to have appropriated the property, and hence the heir of him or her who is said to have wrongfully appropriated it is not compelled to be sworn. 3Where anyone desires to tender back the oath which has been tendered him, it has been decided that the Prætor shall not permit this to be done.

12 Paulus libro septimo brevium. non magis quam si quis ei qui furti agat iusiurandum deferat, an ipse fur sit.

12 Paulus, Abridgments, Book VII. Any more than where someone tenders an oath to a party whom he is suing to recover stolen property, in order to ascertain whether he himself is the thief.

13 Ulpianus libro trigesimo tertio ad edictum. Ideo Labeo scribit mulieri non esse permittendum referre iusiurandum, et ita edictum ordinatum videtur.

13 Ulpianus, On the Edict, Book XXXIII. Therefore, Labeo states that a woman is not permitted to tender back an oath; and the Edict of the Prætor is held to establish this.

14 Paulus libro octavo decimo ad edictum. De rebus amotis permittendum marito vel uxori de quibusdam rebus iusiurandum deferre, de quibusdam probare.

14 Paulus, On the Edict, Book XXVIII. In an action for the recovery of property which has been wrongfully appropriated, the husband or the wife shall be permitted to tender the oath with reference to certain property, and to confirm what has been testified to with reference to any other.

15 Ulpianus libro trigesimo quarto ad edictum. Nihil interest, utrum simul an separatim habitaverunt, cum actio rerum amotarum competat etiam adversus eam, quae ex ea domo subtraxit, in qua non simul cum viro habitavit. 1Uxor et nurus et pronurus viro et socero et prosocero furtum facere possunt, furti autem non tenentur, nisi forte emancipatus sit filius: tunc enim nurus patri eius et furtum facit et furti tenetur.

15 Ulpianus, On the Edict, Book III. In a case of this kind it makes no difference whether the parties are living together or separately; since an action for property wrongfully appropriated can even be brought against a woman who has taken it into a house in which she is not living with her husband. 1A wife, a daughter-in-law, or the wife of a grandson can steal from her husband, her father-in-law, and the grandfather of her husband, but still she will not be liable for theft unless the son is not emancipated; for, in this instance, the daughter-in-law commits a theft against her father-in-law, and is liable to an action for theft.

16 Hermogenianus libro secundo iuris epitomarum. Ad fiscum mariti bonis devolutis uxor rerum amotarum nomine in simplum convenitur, quamvis alii in quadruplum condemnentur.

16 Hermogenianus, Epitomes of Law, Book II. Where the property of a husband is confiscated, the wife can only be sued for the simple value of what has been unlawfully appropriated; although, in all other cases, judgment can be rendered against her for fourfold damages.

17 Ulpianus libro trigesimo ad edictum. Si concubina res amoverit, hoc iure utimur, ut furti teneatur: consequenter dicemus, ubicumque cessat matrimonium, ut puta in ea, quae tutori suo nubsit vel contra mandata convenit vel sicubi alibi cessat matrimonium, cessare rerum amotarum actionem, quia competit furti. 1Divortii causa res amotas dicimus non solum eas, quas mulier amovit, cum divortii consilium inisset, sed etiam eas quas nupta amoverit, si, cum discederet, eas celaverit. 2Non solum eas res, quae exstant, in rerum amotarum iudicium venire Iulianus ait, verum etiam eas, quae in rerum natura esse desierunt: simili modo etiam certi condici eas posse ait. 3Quae viro suo res pignori datas amoverit, hoc iudicio tenebitur:

17 Ulpianus, On the Edict, Book XXX. Where a concubine wrongfully appropriates property, it is the practice to hold her liable for theft. Consequently, we say that whenever a marriage is void, as, for instance, where a ward marries her guardian, or where matrimony is contracted, contrary to the laws, and in any other case where it is not valid, the action to recover property wrongfully appropriated will not lie, for the reason that it can only be brought where a divorce takes place. 1When we speak of property wrongfully appropriated, we have reference not only to that which the woman removes when she forms the intention of obtaining a divorce, but also to such as she removes while she is still married, if, when she leaves her husband, she conceals the property. 2Julianus says that not only property which is in existence is included in a suit for wrongful appropriation, but also such as has already ceased to exist. He says that, under these circumstances, a personal action can also be brought for its recovery. 3Where a woman wrongfully appropriates property which has been given in pledge to her husband, she will be liable to this action.

18 Paulus libro sexto quaestionum. sed et domino condictio competet. sed alterutri agere permittendum est.

18 Paulus, Questions, Book VI. A personal action for the recovery of such property will also lie in favor of the owner of the same, but he is allowed to choose whether he will bring this, or a real action.

19 Ulpianus libro trigesimo quarto ad edictum. Sed et si divortii tempore fures in domum mariti induxerit et per eos res amoverit, ita ut ipsa non contrectaverit, rerum amotarum iudicio tenebitur. verum est itaque quod Labeo scripsit uxorem rerum amotarum teneri, etiamsi ad eam res non pervenerit.

19 Ulpianus, On the Edict, Book XXXIV. If a woman, at the time of the divorce, introduces thieves into the house of her husband, and removes property by their agency, even if she herself does not handle it, she will be liable to an action for its wrongful appropriation. It is therefore true, as Labeo states, that a wife is liable to this action, even if the property does not come into her possession.

20 Marcellus libro septimo digestorum. Si rem, quam maritus bona fide emerat, uxor amovit vel opem furi tulit idque fecit divortii causa, rerum amotarum iudicio damnabitur.

20 Marcellus, Digest, Book VII. Where a wife herself removes, or makes use of the services of the thief to remove property which her husband purchased in good faith, and does this with the intention of obtaining a divorce, judgment shall be rendered against her in an action for the recovery of property wrongfully appropriated.

21 Paulus libro trigesimo septimo ad edictum. Si mulier, cum de viri vita desperasset, subreptis quibusdam rebus divortisset, si convaluerit vir, utilis rerum amotarum actio ei danda est. 1Si servus mulieris iussu dominae divortii causa res amoverit, Pedius putat nec furtum eum facere, quoniam nihil lucri sui causa contrectet nec videri furtum facienti opem ferre, cum mulier furtum non faciat, quamvis servus in facinoribus domino dicto audiens esse non debeat: sed rerum amotarum actio erit. 2At si in dotem servus datus furtum viro fecerit, si quidem mulier talem esse eum scierit, totum damnum viro sarcietur: quod si ignoraverit, tunc non ultra condemnationem noxae multanda erit. 3Rerum amotarum actio damnum repraesentat etiam si postea dotis exactio competat. 4Commodi quoque, si quod amotis rebus amiserit vir, ratio habenda est. 5Haec actio licet ex delicto nascatur, tamen rei persecutionem continet et ideo non anno finitur, sicut et condictio furtiva: praeterea et heredibus competit. 6Nec viro nec mulieri prodest in hoc iudicio, si facere non possunt: pendet enim id ex furto.

21 Paulus, On the Edict, Book XXXVII. If a woman, despairing of the life of her husband, after having surreptitiously removed some of his property, should obtain a divorce, and her husband should recover, an equitable action for the recovery of property wrongfully appropriated should be granted him. 1Where a slave belonging to a wife removes property of her husband by order of his mistress who intends to obtain a divorce, Pedius thinks that she is not guilty of theft, since she does not obtain anything to his own advantage; nor is she held to have rendered any aid to the slave committing the offence, as the woman herself did not commit it, although the slave should not obey his owner when ordered to commit a crime; but an action on the ground of property wrongfully appropriated will lie. 2Still, if a slave given as dowry steals from the husband, and the wife knew that he was dishonest, she must make good the entire loss to her husband; but if she was not aware of the bad character of the slave, she will then not be liable beyond the surrender of the slave by way of reparation. 3The action to recover property wrongfully appropriated is brought for reparation of the injury, even though the exaction of the dowry can only subsequently be demanded. 4If, where property has been wrongfully appropriated by his wife, the husband has been deprived of some advantage, this must be taken into consideration. 5Although this action arises from the commission of a crime, it still includes the claim for the property, and therefore is not prescribed after the expiration of a year, as is the case in a personal action for the recovery of stolen goods. Moreover, it will lie in favor of heirs. 6In this action, neither the husband nor the wife can obtain any benefit from insolvency, because it is based upon theft.

22 Iulianus libro nono decimo digestorum. Si propter res amotas egero cum muliere et lis aestimata sit, an actio ei danda sit, si amiserit possessionem? movet me, quia dolo adquisiit possessionem. respondi: qui litis aestimationem suffert, emptoris loco habendus est. ideo si mulier, cum qua rerum amotarum actum est, aestimationem litis praestiterit, adversus vindicantem maritum vel heredem mariti exceptionem habet et, si amiserit possessionem, in rem actio ei danda est. 1Si mulier mortis causa res amoverit, deinde mortuus esset maritus, hereditatis petitione vel actione ad exhibendum consequi poterit heres id quod amotum est.

22 Julianus, Digest, Book XIX. If a man brings an action against his wife on the ground of property wrongfully appropriated by her, and the valuation of the same is made in court, and the amount is paid, will she be entitled to bring suit to recover possession of the property, if she has lost it? A difficulty arises here, because she obtained possession by fraud. I answered that where anyone pays the amount of the appraisement of the property in court, he should be considered to occupy the position of a purchaser. Therefore, if the woman, against whom an action has been brought on the ground of property wrongfully appropriated, pays the appraised value of the same in court, she will be entitled to an exception against the husband, or his heir, if either should bring suit to recover the said property; and if she has lost possession of the same, a real action should be granted her. 1Where a woman wrongfully appropriated property in anticipation of the death of her husband, and he then dies, the heir can recover whatever had been appropriated by an action for the estate, or by one for the production of property in court.

23 Africanus libro octavo quaestionum. Redintegrato matrimonio si iterum divortium factum erit, ob res amotas prioris divortii causa, item ob impensas donationesque priore matrimonio factas manere actionem existimavit.

23 Africanus, Questions, Book VIII. Where marriage is re-established after a second divorce has taken place, it is held that a right of action continues to exist on account of property appropriated at the time of the first divorce, as well as on account of expenses incurred or donations made during the previous marriage.

24 Ulpianus libro quinto regularum. Ob res amotas vel proprias viri vel etiam dotales tam vindicatio quam condictio viro adversus mulierem competit, et in potestate est, qua velit actione uti.

24 Ulpianus, Rules, Book V. The husband is entitled to an action for recovery as well as the personal action against his wife on the ground of property wrongfully appropriated by her, whether it belongs to him or is included in the dowry; and it is in his power to make use of whichever action he chooses.

25 Marcianus libro tertio regularum. Rerum quidem amotarum iudicium sic habet locum, si divortii consilio res amotae fuerint et secutum divortium fuerit. sed si in matrimonio uxor marito res subtraxerit, licet cessat rerum amotarum actio, tamen ipsas res maritus condicere potest: nam iure gentium condici puto posse res ab his, qui non ex iusta causa possident.

25 Marcianus, Rules, Book III. The action for property wrongfully appropriated is available where it was removed with the intention of obtaining a divorce, and the divorce actually followed; but if the wife appropriates the property of her husband during marriage, although this action will not lie, the husband can, nevertheless, bring a personal action to recover the said property; for, in accordance with the Law of Nations, I hold that property can always be recovered by a personal action from parties who hold possession of it unjustly.

26 Gaius libro quarto ad edictum provinciale. Rerum amotarum actio condictio est.

26 Gaius, On the Provincial Edict, Book IV. The action for property wrongfully appropriated is a personal one.

27 Papinianus libro quarto responsorum. Rerum amotarum actio ob adulterii crimen, quo mulier postulata est, non differtur.

27 Papinianus, Opinions, Book IV. The action for property wrongfully appropriated does not differ from that in which the woman is accused of the crime of adultery.

28 Paulus libro sexto quaestionum. Si uxor rem viri ei, cui eam vir commodaverit, subripuerit isque conventus sit, habebit furti actionem, quamvis vir habere non possit.

28 Paulus, Questions, Book VI. Where a wife steals property belonging to her husband from a person to whom the former lent it, the latter will be entitled to an action for theft against her, although her husband can not bring such an action.

29 Tryphoninus libro undecimo disputationum. Rerum amotarum aestimatio ad tempus quo amotae sunt referri debet: nam veritate furtum fit, et si lenius coercetur mulier. quare nec a bonae fidei possessore ita res amotae usucapiuntur: sed si pluris factae non restituuntur quae amotae sunt, crescit aestimatio, ut in condictione furtivae rei.

29 Tryphoninus, Disputations, Book XI. The valuation of property wrongfully appropriated should be calculated with reference to the time when it was taken, for the woman is in reality guilty of theft, although she is punished with more leniency. For this reason property thus wrongfully appropriated cannot be acquired through usucaption by a bona fide possessor; but where it increases in value and is not returned, the appraisement will also be increased; as is the case in an action for the recovery of stolen property.

30 Papinianus libro undecimo quaestionum. Cum soluto matrimonio rerum amotarum iudicium contra mulierem instituitur, redintegrato rursus matrimonio solvitur iudicium.

30 Papinianus, Questions, Book XI. Where an action is brought against a woman on the ground of property wrongfully appropriated after the marriage has been dissolved, the action is extinguished in case the marriage should be re-established.