14 The kinds of action having been thus distinguished, it is clear that
a plaintiff cannot demand his property from another in the form 'if it
be proved that the defendant is bound to convey.' It cannot be said that
what already belongs to the plaintiff ought to be conveyed to him, for
conveyance transfers ownership, and what is his cannot be made more his
than it is already. Yet for the prevention of theft, and multiplication
of remedies against the thief, it has been provided that, besides the
penalty of twice or four times the value of the property stolen, the
property itself, or its value, may be recovered from the thief by a
personal action in the form 'if it be proved that the defendant ought to
convey,' as an alternative for the real action which is also available
to the plaintiff, and in which he asserts his ownership of the stolen
property.
15 We call a real action a 'vindication,' and a personal action, in
which the contention is that some property should be conveyed to us, or
some service performed for us, a 'condiction,' this term being derived
from condicere, which has an old meaning of 'giving notice.' To call
a personal action, in which the plaintiff contends that the defendant
ought to convey to him, a condiction, is in reality an abuse of the
term, for nowadays there is no such notice as was given in the old
action of that name.
16 Actions may be divided into those which are purely reparative, those
which are purely penal, and those which are mixed, or partly reparative,
partly penal.
17 All real actions are purely reparative. Of personal actions those
which spring from contract are nearly all of the same character; for
instance, the actions on loans of money, or stipulations, on loans for
use, on deposit, agency, partnership, sale, and hire. If, however,
the action be on a deposit occasioned by a riot, a fire, the fall of a
building, or a shipwreck, the praetor enables the depositor to recover
double damages, provided he sues the bailee in person; he cannot recover
double damages from the bailee's heir, unless he can prove personal
fraud against the latter. In these two cases the action, though on
contract, is mixed.
18 Actions arising from delict are sometimes purely penal, sometimes
are partly penal and partly reparative, and consequently mixed. The sole
object of the action of theft is the recovery of a penalty, whether
that penalty be four times the value of the property stolen, as in
theft detected in the commission, or only twice that value, as in simple
theft. The property itself is recoverable by an independent action in
which the person from whom it has been stolen claims it as his own,
whether it be in the possession of the thief himself or of some third
person; and against the thief himself he may even bring a condiction, to
recover the property or its value.
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