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BOOK THIRTEEN THE CONDICTIO FOR THEFT 1 ULPIAN, Sabinus, book 18: In relation to stolen things, the condictio is available only to the owner. 2 POMPONIUS, Sabinus, book 16: Although lunatics and infants cannot be impleaded, they are bound by the condictio for theft if they become heredes necessarii. 3 PAUL,Sabinus, book 9: If a slave is claimed by the condictio for theft, it is certain that account is taken of the plaintiff's full damages, as, for instance, where the slave has been appointed heir and the master runs the risk of losing the inheritance. Julian also writes to this effect. He, likewise, holds that one who brings a condictio for a slave who has died will obtain the value of the inheritance. 4 ULPIAN,Sabinus, book 41: If a slave or son-in-power commits theft, a condictio will go against the master for whatever has come to him. In respect of the balance, the master can make noxal surrender of the slave. 5 PAUL,Sabinus, book 9: The condictio for theft can go against a son-in-power. For nobody is ever liable to that condictio, except the perpetrator of the wrong or his heir. 6 ULPIAN,Edict, book 38: This is taken to the extent of holding that an accomplice to theft, though liable to the action on theft, is not liable to the condictio. 7 ULPIAN,Sabinus, book 42: The fact that someone meets his liability as a thief does not obstruct the condictio. That is the correct view. For the settlement extinguishes the action on theft but not the condictio. 1. The action on theft goes for the statutory penalty, the condictio for the thing itself. That distinction means that the action on theft is not extinguished by the condictio. Nor vice versa. Hence, the victim of theft has the action on theft, the condictio and the vindicatio. And he has the action for production too. 2. Because the condictio for a stolen thing has the aim of recovering the asset, it also binds the thief's heir, and not only while the stolen slave is still alive but also after he has died. Moreover, it is right to say that the condictio endures against the heir both in the case in which the stolen slave meets his end in the hands of the thief's heir and where he dies after the thief's death, albeit not in the hands of the heir. What we have said of heirs applies also to other successors. 8 ULPIAN,Edict, book 27: In the context of theft, the condictio lies for the very things stolen, but does it lie only so long as they still exist or even after they have perished from the face of the earth? Without doubt there will be no condictio if the thief tendered them. If not, the condictio survives for the value since the object itself cannot be made over. When something is claimed by condictio for theft, as at what time should its value be taken? There is authority for taking the time when its value was highest, which seems all the more right given that a thief cannot discharge himself by returning the thing in a deteriorated condition. For a thief is deemed always in 392 BOOK THIRTEENICONDICTIO FOR NO THEFT delay. 2. Lastly, it is to be observed that fruits also are included in this action. 9 ULPIAN,Edict, book 30: In the condictio for theft, we are liable, if we are sole heirs, for the whole amount, not just for what comes into our hands. But the liability of an heir to a share of an inheritance is proportionate to that share. 10 ULPIAN,Edict, book 38: Whether the thief is manifest or not manifest, the condictio goes against him. But the manifest thief is only subject to the condictio so long as the owner has not retaken possession from him. Indeed, no kind of thief can be liable under the condictio once the owner has recovered possession. Hence, Julian supposes for the purpose of his discussion of the condictio against manifest thieves that the captured thief has killed or broken or poured away whatever it was he took. 1.Julian also indicates in the twenty-second book of his Digest that the condictio can be brought against one liable for robbery. 2. The condictio continues to lie until by his own act the owner is divested of title to the thing. Hence, if he...

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