Theft

THEFT. - Any unjust taking of another's property, done for the purpose of gain, against the reasonable opposition of the owner.

I. ESSENTIAL ELEMENTS OF THEFT

The definition given, which may be called somewhat generic, in the sense that it gives only the essential elements of every theft, is then better determined in the one that is given for each individual species of it. Thus it appears at once from it what is indispensable to constitute a theft of any species: 1) that there be not only the material taking of another's goods, but that this occur unjustly: in this case every taking of another's goods made without any objective title that juridically and morally permits it is to be considered unjust; 2) that the said taking be made for the purpose of profit: for there would indeed be only an unjust damaging in the case that another's goods were taken in order to be destroyed or deteriorated; 3) that this occur against the opposition of the owner, an opposition which, in order to have its moral force, must be just, that is, motivated. This last element is of particular importance in all the problems that touch upon theft. Unjustified opposition to the action of a third party, directed at taking an object or at retaining it, is morally and juridically nonexistent, thereby eliminating from that same action the nature of theft. On the other hand it must also be remembered that, generally speaking, the owner is always entitled to renounce his property and not to oppose another's retaining what is his; in which case too the theft always ceases; it is necessary, however, that the said renunciation be spontaneous. Finally it is also natural that, other things being equal, a theft is all the more grave the more reasonably the owner opposes it. For this purpose, however, it is not necessary that he manifest with positive acts his reluctance to acts of theft by third parties: it is enough that he does not positively consent. In doubtful cases, barring very rare exceptions, it is presumed that the owner is opposed to others' taking what is his.

The three essential elements of theft just referred to (taking of another's goods, purpose of profit, opposition of the owner) are never found alone. They are united now with one and now with another circumstance, and above all with three. Of these, which constitute specifically different thefts, the first is to be considered as connatural and constitutes simple theft: it consists in the fact that the theft occurs secretly. For technical precision it is necessary to bear in mind that "secretly" here is not at all meant to signify that the theft must occur in such a way that the owner does not notice it, but only that against the owner no physical or moral violence must be used that constrains him not to react or renders him powerless to do so. As regards its moral evaluation, in this kind of theft there is an unjust act regarding the goods of fortune of one's neighbor; nothing more. The second circumstance, which can be united with the elements described above and which is lacking in simple theft, is violence. Here too it is opportune to recall that it is exclusively a question of violence, physical or moral, done to the owner, who must therefore be present at the theft; hence every other act, however violent, is not violence, for example, the breaking of gates, doors, windows, in order to be able to steal more easily. This kind of theft, which technically is called robbery, is specifically, as the moralists say, distinct from simple theft; better it may be said that besides being a theft it is also a personal offense against the owner: for this reason in robbery there are always two sins of injustice, one regarding the patrimonial goods of one's neighbor, the other against his personal immunity. This second species of theft is distinguished from the first only by the manner in which the theft is committed. The third circumstance, on the other hand, differentiates theft from the two preceding species only by its object. For there is so-called sacrilegious theft when sacred objects or objects destined for worship are stolen. Here too the sins are always two: one of injustice for the theft of another's goods, the other of sacrilege for the offense against the virtue of religion. The preceding observation concerning the specific difference of robbery from simple theft retains its value also as regards the difference between sacrilegious theft and the two aforesaid species: for this reason, rather than a specific difference between the one and the others, in sacrilegious theft one must speak of sacrilege in addition to theft. It is then obvious that there is a sacrilegious robbery in the case that the thief of sacred things uses violence against those who are legitimately appointed to guard them. The infractions of the moral laws in this case accumulate and there are no longer two, but three sins. In consequence of what has been said thus far, the present exposition regarding theft has value not only for simple theft but also for that qualified as robbery and as sacrilege: all three of these species indeed agree in the three essential elements referred to above. It is well known, moreover, that fully equated with theft are the failure to return what was found and belongs to others, the failure to return what was extorted by deceit, and the non-payment of debts.

II. MORAL EVALUATION OF THEFT

Speaking of the morality of theft, all moralists, without any exception, agree in classifying it among sins that are grave in themselves, although they also unanimously acknowledge that it can at times be only a venial sin. It will be well also on this point to clarify whatever may at first appear obscure. For this reason, although setting aside Sacred Scripture, both of the Old and of the New Testament, which expressly holds the sin of theft to be grave insofar as it leads to eternal death ("thieves and robbers will not possess the Kingdom of God": I Cor. 6:10); setting aside also the perpetual consent of the Church and of the Fathers in this sense, and the fact that theft is placed in the Decalogue among the sins that gravely offend the natural law (seventh commandment: thou shalt not steal), one must agree that if it were not forbidden under pain of grave sin, theft would not only greatly hinder the peaceful coexistence and the progress of human society, diminishing and annihilating the mutual relations of charity and justice, but would permanently render impossible every social relationship. By this one certainly does not wish to affirm that every individual theft always constitutes a mortal sin: it is easy to demonstrate the contrary by going back to the definition and considering the three essential elements of theft. It appears only too clearly, in fact, that a taking of another's goods in a minimal quantity, an undue enrichment in the thief, likewise in light matter, and finally a harm to the owner equally light, such as not to render it substantially and gravely contrary to the thief's action, cannot create a state of grave responsibility in the thief himself, nor consequently a grave sin: all the more so since, even with such violations, the social order and commutative justice remain sufficiently intact.

The rather serious problem, however, lies in the difficulty of determining in concrete terms when theft constitutes a mortal sin and when only a venial one. Having in fact said that theft is a sin grave in itself, one could easily be led to attribute the greater or the absence of gravity of the fault exclusively to the greater or lesser quantity of the object stolen: nothing could be more mistaken. Certainly the element of the object in theft carries a weight that is not indifferent, but it is not the only one nor always the principal one. It is necessary for this reason to go back once again to the other two essential elements of every theft, namely the unlawful enrichment of the thief and the opposition of the owner. Beginning with the latter, although it is fitting to recall that the gravity or otherwise of theft is not always in direct relation to the greater or lesser opposition of the owner (a particularly avaricious man might oppose himself violently and resent it keenly, even gravely, over a theft of minimal proportions); nevertheless it does influence in some way the gravity of the theft, also because it is easy to understand that different persons can, and often quite justly, be more or less opposed and deprive themselves of one and the same object: such diversity depends on the character of the person robbed, on his degree of fortune, and on other circumstances; in such cases the affront, and therefore the injustice, will obviously be more or less grave according to the diversity of those circumstances, provided they are in some way perceived by the thief. As regards then the unlawful enrichment, the matter appears more evident. It would indeed be strange to permit thieves to enrich themselves even with notable quantities of another's goods under the pretext that they cause no grave harm to their neighbor (which in reality is certainly possible, for example, in light thefts distributed among very many persons), and therefore to conclude that, in acting thus, they commit only a venial sin. This element too, therefore, namely the prohibition against enriching oneself without a legitimate title, has its weight in determining how and when theft constitutes a grave sin. Nor should another circumstance be forgotten which, although outside the elements proper to theft, is nevertheless connected to them, a circumstance constituted by the requirement of guaranteeing at all times the common good and making possible life with its relationships. The point is that, in the absence of the other elements, this one too can have and does have a weight that is at times decisive, especially in those circumstances in which there occurs the case of a theft which, although being in grave matter, causes no grave harm to third parties, nor clashes against a grave opposition of the person robbed, nor generates notable enrichment in the thief (one need only think of thefts even of several tens of thousands of lire, committed against billionaires, or against economically powerful companies, and against the State itself, by persons already exceedingly rich). It will therefore be said that a theft will also be grave which, although light, considering only the essential elements of theft, nevertheless gravely offends the common good, making the relations of society difficult. Subjectively, however, it is always necessary that this special malice be perceived by the agent.

III. MATTER OF THEFT

However, although all these elements have their influence, and sometimes each one is determinative, given the nature of theft, which is a sin of injustice toward one's neighbor who is harmed in his patrimonial goods, ordinarily the final word, as regards grave and light theft, belongs precisely to the quantity of said goods stolen, that is, as moralists say, to the matter of the theft.

In reality it is not even easy to determine with mathematical precision what matter must be considered grave and what light in theft. Moreover, this difficulty cannot be surprising. If one starts from the concept that in theft it is necessary to weigh simultaneously not only the essential elements, which are themselves not always well defined, but many other circumstances which, however extrinsic, are nonetheless almost always joined to those elements by moral necessity; and if one keeps in mind that in whole or in part said elements and these circumstances escape a valuation of a mathematical order, because they are the fruit and effect of free personal concurrence and of subjective physical or psychological states that are very difficult to interpret, it will not be surprising that in concrete terms, stopping at the matter of the theft alone, it is almost impossible to say in precise figures which of it is grave and which light. Nevertheless, since it is still necessary to attempt, at least with approximate figures and as a matter of principle, to give rules that may serve as a relatively safe guide in this problem, for greater precision certain basic propositions are set forth, on which each person may in individual practical cases base his judgments. These propositions start from the consideration that in the series of all possible thefts, besides a matter that must absolutely always be considered light, and a matter that must absolutely always be considered grave, whatever the circumstances accompanying the one and the other, there exists one which, stolen from certain persons, constitutes grave sin, stolen from others only venial sin, that is, a matter that is grave or light only relatively.

First of all there is a matter that is absolutely and always light; it does not constitute, nor can it objectively ever constitute, the object of grave injustice. Such matter, abstractly speaking, is constituted by goods which, if stolen, cause in themselves neither grave harm to society nor grave harm by way of offense to the person who is robbed of them, nor a notable enrichment in the thief. In practice these goods are constituted by those things that one is not accustomed, or hardly accustomed, to care for with any anxiety. To give examples: the theft of a few lire, of a button, of an iron pin, of a few grams of food, etc. As everyone sees, these goods, if stolen, can constitute only matter of venial sin; it would in fact be contrary to the very principles of natural law, given the disproportion that would result, to judge grave a theft of such light things. On the other hand, however, one must admit a matter that is absolutely and therefore objectively always grave. That is, there is a limit in theft, beyond which one can no longer speak in any way of light matter. Said limit is peremptorily required by the common good: this would in fact be greatly hindered if, even once that limit was surpassed, one were still faced with only a light fault. It is obvious in fact that in this way one would give free rein to enormous and most harmful thefts, both for private individuals and for society, inasmuch as, constituting only venial sin, they would be scarcely or not at all heeded by the mass of men. For greater clarity it should further be noted that the term "absolutely" here is meant to indicate that the sin of theft in said matter remains equally grave, and therefore commutative justice is gravely violated even in the event that the person robbed, given his enormous economic fortune, does not suffer grave harm from said theft, or that the thief gains only a modest sum. What this matter and equivalent sum is, moreover, is determined by moralists, although on this point they are not completely in agreement. The opinion of those who raise such a figure to the equivalent of the wages of one month of work of an average-category worker seems better founded. Today, by way of example, normally speaking, the sum ranging from 25 to 30 thousand Italian paper lire would be considered absolutely grave matter, that is, the wages of one month of work of one who earns from 800 to 1000 lire a day. In practice, therefore, today it is not possible in any case to steal 25-40 thousand lire without committing mortal sin, even if said sum should happen to cause grave harm to no one. One must also keep in mind that absolutely grave matter is the only matter that is to be calculated in thefts perpetrated to the detriment of opulent companies or of extraordinarily rich private individuals, since even a lesser sum does not constitute for them a grave harm, not even a relative one.

It has been said that there also exists a matter that is grave only relatively. It is obvious in fact that the sum which reaches absolutely grave matter cannot alone constitute grave theft. Too much disorder and too many grave harms would result (which would nonetheless have to be considered venial sins) in the case that one had to stop at considering only absolutely grave matter. By relatively grave matter, moreover, is meant that sum of goods which, when stolen, constitutes in fact a grave harm for the person robbed, a harm which would instead be light in the event that the same sum were stolen from another who is economically richer. Here too it is the same natural law that very clearly suggests that it is not the same thing to steal 800-1000 lire from a modest worker and to steal them instead from a very rich person, and that the relatively grave sum must necessarily change with the change of the category to which the persons belong, precisely because for one the theft of sum a causes harm, for another only sum a. Generally, relatively grave matter in theft is the sum corresponding to a day of work and to what is necessary in order to live one day according to one's own social position. Consequently said matter oscillates with the oscillation of the social positions of persons. Finally there is a relatively light matter. It is constituted by that sum of goods which, although for others it constitutes relatively grave matter, nonetheless, given the state of the person from whom it is stolen, constitutes only light matter; for example, a theft of a thousand lire perpetrated to the detriment of a very rich gentleman.

But even regarding the preceding propositions concerning the matter of theft, some observations must be made. First of all, the figures cited are valid only if it is a case of theft between unrelated persons; for this reason it will be necessary at least to double them, for example, in cases of theft between spouses, and of children against parents, etc.; it is obvious in fact that both parents toward children and one spouse toward the other are much less opposed to theft than if it were a matter of persons who have no relationship with them: in the end the goods remain in the family and serve for the use of the family. Secondly, the sum defined for there to be relatively grave matter must also be doubled if it is not stolen in a single act but at intervals of time and in small proportions: in this way in fact, since the damage is distributed over a longer span of time and in small quantities, it is for that very reason less felt and therefore less grave. Indeed, if by small thefts one steals from different persons, without reaching relatively grave damage for any one of them in particular, moralists rightly require, in order to reach grave matter, double the absolutely grave sum, therefore from 50 to 60 thousand lire, and on condition that these small thefts are morally united, that is, so close to one another as to constitute a single moral act; otherwise one would never reach grave matter, but there would remain many thefts, all light. Thirdly, various attenuating circumstances must also be taken into account. For this reason a greater sum is required for there to be grave matter in the theft of things unguarded and exposed (for example, of the fruits of trees facing the road, of leftovers of grain or straw in the fields); and of things produced naturally without labor (for example, mushrooms, strawberries, shrubs); and of scraps; and of small and various objects (for example, an apple, a needle) stolen from the same owner. These things in fact in common use are worth less for one or another of the circumstances mentioned above. Ordinarily also in these cases a double sum will be needed to reach grave matter. Finally it must be noted that theft will always be excluded in those cases in which the owner is not opposed or is not substantially opposed, and this insofar as everyone can renounce his rights.

IV. PERMISSIVE OR EXCUSING CAUSES OF THEFT

These are so-called extreme necessity and occult compensation. To speak accurately, there are no causes that permit theft, since, being a sin, it can never be allowed; the meaning of this statement, therefore, is that in certain circumstances (extreme necessity, occult compensation) one of the essential and constitutive elements of theft is lacking, and therefore theft itself is lacking.

1. Extreme necessity

In relation to commutative justice, extreme necessity is the name for that particular moment or state in which a person finds himself under the threat of imminent death or of an equivalent misfortune. Besides death, it is commonly admitted that properly so-called slavery, a most grave infamy, the complete or near-complete ruin of health, a most grave mutilation, and rape also constitute the state of extreme necessity. For these misfortunes to create extreme necessity, they must be imminent and must not be avoidable in any way other than by taking the goods of others. Catholic moral theology teaches that in extreme necessity already existing or unavoidable in other ways, anyone is permitted to appropriate the goods of any person insofar as this is indispensable for freeing himself from it. In other words, in those cases all goods that exist, and that are effectively indispensable for freeing a person from death or an equivalent misfortune, may be taken as if they belonged to no one, without this constituting theft, on condition that they do not exceed what is required to eliminate that necessity. This holds by natural right: for however the distribution of goods among men may have come about, since it was intended and ordered with reference to the common good, it is by its nature subject to the condition that it not give rise to an extreme wrong against the very person for whose greater good it was instituted. When the case of extreme necessity therefore arises, such a distribution is as if it had not occurred, always on condition that one takes only what is truly required to free oneself from the aforesaid state.

To give examples: one who is on the point of dying of hunger may take food sufficient to satisfy his hunger wherever he finds it; one who is pursued to the death by assassins may take another's horse or bicycle or automobile in order to escape (except that in these cases the burden of restitution remains, since the mere use of these goods suffices to eliminate the extreme necessity); one who, to free himself from slavery, appropriates a large sum of another's money does not commit theft, provided that he restores it, once the danger is past, if he possessed it elsewhere. This same thing is lawful, in itself, on behalf of others, provided that no abuse is made of it. Nor can the owner positively oppose such takings, since in the one who finds himself in extreme necessity there is a true right to appropriate them, a right that cannot be violated. This principle may make a certain impression, but this is overcome with relative ease if one considers that in the last analysis God created everything for the service of man, and it must principally serve this end.

2. Occult compensation

If two persons are mutually debtors and creditors to each other for the same value of goods or the same sum of money, it will not be required that each charge the other. Here there is already a reciprocal compensation. This compensation is called legal. Here, however, we are dealing with extra-legal compensation, which for this very reason moralists are accustomed to call occult compensation, that is, the appropriation, without the debtor's knowledge, of things that he owes us (v. COMPENSAZIONE OCCULTA).

V. THEFT AS A CRIME

From what has been said above it appears that in theft there is more than enough matter to constitute, besides a moral wrong, also a crime, given the disturbance it causes in social relations. It is therefore no wonder that all legal systems (some isolated deviation, such as the provision said to have been introduced at Sparta by Lycurgus, whereby it was not theft itself that was punished but the lack of dexterity in stealing, even if historically attested, does not change the substance of things) have considered and do consider it a crime. Only that in the various legal systems certain qualified species of theft may receive greater consideration, while others escape criminal repression, which must necessarily halt before a certain legal formalism, from which it is not infrequently possible to evade, and the craftiest do evade it. Thus it is possible that while the common street thief is imprisoned for a few hundred lire, the man who has amassed his fortune by drawing illicit profits through embezzlement, favoritism or otherwise, remains entirely unpunished. The State does what it can: there remain the tribunal of conscience and that of God. Italian law includes theft under title 13, on crimes against property, including in them theft

(Italian Penal Code, arts. 624-26) and certain other specifications, such as the misappropriation of common things (art. 627), robbery (art. 628), extortion (v.; arts. 629-30), usurpation (art. 631), the diversion of waters or modifications of the state of places (art. 632), the invasion of lands and buildings (art. 633) and, moving ever further from the specific figure of theft, treats under the same title also the crime of violent disturbance of possession (art. 634) and the various configurations of damage (arts. 635-39).

In canon criminal law, a conviction for theft entails for the layperson the automatic exclusion (ipso iure) from legitimate ecclesiastical acts and removal from any office that the offender may happen to hold in the Church; furthermore, the juridical as well as moral obligation to make reparation for damages (can. 2354 § 1). A cleric who committed such a crime may moreover be subjected to penalties of various kinds proportionately to his guilt, penalties that may range from censures to deposition (can. 2354 § 2).

Lorenzo Simeone