The same would hold in the case of any other animal or any other thing, but the seller is in any case bound to make over to the purchaser his right to a real or personal actio, for the person who has not delivered the thing is still its owner; and it is the same with regard to the actio of theft, and the actio damni iniuria.
4. A sale may be made conditionally or unconditionally; conditionally, as, for example, “If Stichus suits you within a certain time, he shall be purchased by you as such a price.”
5. A sale is void when a person knowingly purchases a sacred or religious place, or a public place, such as a forum or basilica. If, however, deceived by the vendor, he has supposed that what he was buying was profane or private, as he cannot have what he purchased, he may bring an actio ex empto to recover whatever it would have been worth to him not to have been deceived. It is the same if he has purchased a freeman, supposing him to be a slave.
Book IV
Obligationes Arising From Delicta.
As we have treated in the preceding book of obligationes arising ex contractu and quasi ex contractu, we have now to treat of obligationes arising ex maleficio. Of the obligationes treated of in the last book, there were, as we have said, four kinds; of those we are now to treat of, there is but one kind, for they all arise from the thing, that is, from the delictum, as, for example, from theft, from robbery, or damage, or injury.
1. Theft is the fraudulent dealing with a thing itself, with its use, or its possession; an act which is prohibited by natural law.
2. The word furtum comes either from furvum, which means “black,” because it is committed secretly, and often in the night; or from fraus; or from ferre, that is “taking away,” or from the Greek word phor meaning a thief, which again comes from pherin, to carry away.
3. Of theft there are two kinds, theft manifest and theft not manifest; for the thefts termed conceptum and oblatum are rather kinds of actiones attaching to theft than kinds of theft, as will appear below. A manifest theft is one whom the Greek term ep= autophors, being not only, one taken in the fact, but also one taken in the place where the theft is committed; as, for example, before he has passed through the door of the house where he has committed a theft, or in a plantation of olives, or a vineyard where he has been stealing.
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