German Cures for English Ailments? Appropriation versus Taking Away—Significance and Consequences of Conceptual Differences between the English and the German Law of Theft

Abstract

The current law of theft continues to rely on the concept of ‘appropriation’ under the Theft Act 1968. The broadness of this concept has led to serious problems in its application by the courts. Amongst these are the problems of ‘appropriation with consent’ and ‘appropriation without taking possession’ which have manifested themselves in several counter-intuitive decisions by the courts such as Gomez, Hinks and Pitham and Hehl. As a result these decisions have given rise to strong criticism by academics and practitioners alike. The law of theft, therefore, is without doubt in strong need of reform. After examining these key problems this article conceptually analyses the German approach by way of comparative juxtaposition with the English approach. Far from suggesting any adaptation of continental solutions, the author aims to provide extra material for consideration for a future reform of the law by introducing a systematic construction of the offences of theft and fraud from a foreign jurisdiction.