Furtumwas created by contrectatio, wrongful handling. No carrying away was needed. The measure of damages was a multiple of the value of the thing stolen. The Digest title, . on furtumis peppered with the problems this caused. Thus, what if more than one person had an interest in the stolen object? Or what was it that was stolen? Only part of one text, D. .., pr. (Paul, book on Sabinus) need be quoted: My point is that the authority of the rules -- handling as the test, a multiple of the value of the object was never questioned. No imperial intervention occurred, nor, so far as we know, was requested, but the problems were well known to the jurists. They never examined the rationale behind the rules, nor sought a new rationale. But sometimes they refused to accept the obvious answer, without questioning the rationale or its authority.110 My longer introduction example concerns an aberration in a detail, and the aberrant detail seems to be a juristic construction. An ususfructus gave theusus, use, andfructus, fruits, of the property to the usufructuary. Thus, if the usufruct was of a flock of sheep, the usufructuary was entitled to the wool, milk, even the dung, and the lambs. If the usufruct contained a slave woman, the usufructuary would be entitled to her services and logically to any infant she bore. But, Cicero, de finibus .., tells us of a dispute between the leaders of the state: It is a common question whether a person who takes a modius from a heap of corn steals the whole heap or only what he removes. Ofilius thinks that he steals the whole heap; for similarly, Trebatius says that one who touches the ear of a person touches the whole person. And in the same way, one who opens a wine jar and abstracts a small quantity of wine therefrom is deemed a thief not only of what he takes but of the whole contents. But the truth is that these people are liable in the action on theft only for what they took. 110 On a convoluted example of such argumentation see Alan Watson, ‘D. 47.2.52.20: The Jackass, the Mares and furtum,’ Studi in Onore di Eduardo Volterra, 2 (1969), pp. 445 ff.
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