Definition
Latin: "the owner being unwilling" or "against the will of the owner." A phrase describing the essential character of a taking that occurs without the consent of the person who owns or possesses the property. In criminal law, invito domino is a foundational element of larceny: the taking of another's property must be against the owner's will to constitute theft. If the owner consents to the taking — even conditionally or through deception — whether that consent negates the invito domino element becomes a question of fact and legal interpretation.
The phrase also carries broader application in the Latin maxim invito beneficium non datur — a benefit is not conferred on an unwilling party — meaning no legal advantage or gift can be forced upon someone who refuses it.
Common Language
This is pure Latin legal terminology with no meaningful common English counterpart. The component words (invito: unwilling; domino: of the lord or owner) appear in English only in specialized legal and historical contexts. COMMON LANGUAGE section omitted.
Common Confusion
INVITO DOMINO vs. CONSENT IN LARCENY: The phrase marks the line between larceny and lawful taking, but the analysis can blur in cases involving trick, fraud, or conditional consent. Where an owner is induced by fraud to hand over property voluntarily, courts have historically split on whether consent obtained by deception satisfies or defeats the invito domino requirement. The majority common law position treats consent procured by fraud as no true consent, preserving the invito domino element. Researchers should distinguish this scenario from embezzlement and false pretenses, which developed partly to cover gaps where the invito domino analysis was unclear.
Core Elements
For larceny purposes, the invito domino requirement has two dimensions:
1. Absence of consent — The owner did not authorize the taking, either expressly or by conduct implying permission.
2. The owner's actual unwillingness — The relevant party is the true owner or the person with possessory rights; consent from a person lacking authority over the property does not satisfy the element.
Why It Matters in Research
LARCENY DOCTRINE: Invito domino is the fulcrum around which the common law distinguished larceny from other property offenses. Researchers tracing the historical development of theft crimes will encounter this phrase repeatedly in treatises and early common law materials as a term of art, not decoration. Its presence in a source signals discussion of the consent element.
FRAUD AND TRICK CASES: The most productive area of research intersects invito domino with the law of obtaining property by false pretenses. Because fraud could be seen as either defeating or satisfying the owner's will, the precise boundaries of larceny by trick versus false pretenses were contested for centuries. Sources using invito domino in this context are often engaged in that doctrinal line-drawing.
MAXIM: invito beneficium non datur: This related maxim appears in equity and contract materials, not just criminal law. Researchers encountering it in cases involving gifts, trusts, or the imposition of legal benefits should not assume a criminal law context simply because the phrase shares its root.
MODERN USAGE: Contemporary criminal codes rarely use the Latin phrase, having replaced it with statutory language requiring the taking to be "without consent" or "without authorization." Researchers moving from historical materials to modern statutory interpretation should map invito domino directly onto those consent provisions.
Historical Dictionary Support
Black's and Burrill's agree on the core meaning — against the will of the owner — and both connect the phrase to larceny doctrine. Black's states the rule plainly: for a taking to constitute larceny, it must be invito domino. Burrill adds important texture by citing Fleta (the 13th-century English legal treatise) and appending the maxim invito beneficium non datur, which locates the phrase within a broader jurisprudential principle about unwilling receipt. Neither source treats the consent-by-fraud problem in depth, which is a significant gap: the contested question of whether deceptive consent satisfies the element is left largely unaddressed by both dictionaries. Researchers should not read Black's brief entry as a complete picture of how courts actually applied the concept.
Jurisdictional Note
The invito domino requirement was universal across common law jurisdictions as a doctrinal matter, but its precise application — particularly in fraud cases — varied. American courts in the 19th century sometimes reached different conclusions than English courts on whether consent obtained by trick defeated the element. Modern statutory definitions of theft and related offenses largely subsume these distinctions under unified consent frameworks, reducing but not eliminating jurisdictional variation.
Encyclopedia Cross-Reference
See Law Mind Encyclopedia: Larceny; Elements of Common Law Theft; Larceny by Trick and False Pretenses.