3.1.226 to 3.1.228

(197) It was decided, however, that those who use property for another purpose than that for which they received it, commit theft, provided they know that they do this contrary to the will of the owner, and that he, if he knew of it, would not allow it; but if they believe that he would permit them to do so, this should not be considered theft. And the distinction is perfectly proper, as theft is not committed without unlawful intent. (198) If anyone thinks that he is handling an article contrary to the will of the owner, but the owner is in fact willing for him to do so this is said not to be theft; and hence the question arose and was discussed, whether if Titius should solicit my slave to steal certain property belonging to me, and deliver it to him; and the slave should notify me, and I, desiring to detect Titius in the crime, should permit my slave to take the property to him, whether Titius would be liable to me in the action of theft, or in the one for corrupting a slave, or whether he would be liable in neither. The answer is that he would be liable in neither action, for he would not be liable in the action of theft, for the reason that he did not handle the property contrary to my will; and he would not be liable in the action for corrupting the slave, for the reason that the slave was not rendered any worse. (199) Sometimes, however, a theft of persons who are free is committed, for example where anyone of my children who is under my control, or a wife in my hand, or a judgment debtor, or a gladiator whom I have hired is secretly taken away.