onstitution, enacting most clearly that no
novation shall take place unless the contracting parties expressly state
their intention to be the extinction of the prior obligation, and that
in default of such statement, the first obligation shall subsist, and
have the second also added to it: the result being two obligations
resting each on its own independent ground, as is prescribed by the
constitution, and as can be more fully ascertained by perusing the same.

4 Moreover, those obligations which are contracted by consent alone are
dissolved by a contrary agreement. For instance, if Titius and Seius
agree that the latter shall buy an estate at Tusculum for a hundred
aurei, and then before execution on either side by payment of the price
or delivery of the estate they arrange to abandon the sale, they are
both released. The case is the same with hire and the other contracts
which are formed by consent alone.

BOOK IV.

TITLE I. OF OBLIGATIONS ARISING FROM DELICT

Having treated in the preceding Book of contractual and quasicontractual
obligations, it remains to inquire into obligations arising from delict.
The former, as we remarked in the proper place, are divided into four
kinds; but of these latter there is but one kind, for, like obligations
arising from real contracts, they all originate in some act, that is to
say, in the delict itself, such as a theft, a robbery, wrongful damage,
or an injury.

1 Theft is a fraudulent dealing with property, either in itself, or in
its use, or in its possession: an offence which is prohibited by natural
law.

2 The term furtum, or theft, is derived either from furvum, meaning
'black,' because it is effected secretly and under cover, and usually by
night: or from fraus, or from ferre, meaning 'carrying off'; or from the
Greek word phor, thief, which indeed is itself derived from pherein, to
carry off.

3 There are two kinds of theft, theft detected in the commission, and
simple theft: the possession of stolen goods discovered upon search, and
the introduction of stolen goods, are not (as will appear below) so
much specific kinds of theft as actionable circumstances connected
with theft. A thief detected in the commission is termed by the Greeks
ep'autophoro; in this kind is included not only he who is actually
caught in the act of theft, but also he who is detected in the place
where the theft is committed; for instance, one who steals from a house,
and is caugh