FINDER OF PROPERTY:

By: Solomon Schechter, Lewis N. Dembitz

In law he who finds and takes up lost goods acquires thereby a special ownership as first occupant against all the world excepting the true owner. The duty, however, to seek out the true owner and to restore the lost things to him is imposed on the Israelite, first as to lost cattle or beasts of burden, and then in more general terms as follows: "and thus shalt thou do to his garment: and thus shalt thou do to all the lost property of thy brother which is lost from him and thou mayest find, thou canst not withdraw thyself" (Deut. xxii. 1-3, Hebr.).

Thus the law of things lost and found falls into two parts: (1) respecting the person who is the true finder and gains the qualified ownership; (2) defining his duties to the owner. The latter part is more a question of morals and of conscience than of right to be determined by the courts. This is aside from the question arising in regard to lost and found documents.

1. The first part of the law has been developed by the rabbinical authorities without the aid of Scriptural texts. The qualified ownership depends in the main upon such acts of occupation as in the case of a purchase would vest title in the buyer—i.e., upon the "ḳinyan" (acquisition), fully explained under Alienation and Acquisition. Inanimate things are "found" by seizing them, not by seeing them (B. M. i.), while domestic animals are "acquired" by leading or pulling them (ib. Mishnah, ii. 3, 4). Things may also be found by dependents: everything found by a man's minor children, his wife, or his bondmen belongs to him (ib. v. 5).

2. There are special laws relating to the finding of lost writings, it being enjoined, on grounds of public policy, that certain classes shall not be returned to their owners. Foremost among these are bonds for debt. The sages, overruling the opinion of R. Meïr, say such bonds should not be returned, though they contain no lien clause; for the court might declare the absence of such a clause a mere mistake of the scrivener, and might thus enforce the bond against innocent purchasers of the debtor's land, after the amount of it had been paid off and the document lost or thrown away by the debtor. In the case of a bill of divorce, a deed of manumission, a last will, a deed of gift, or an acquittance, the finder should not return the document; for it is probable that after it had been written the grantor, donor, etc., decided not to put it in force. A letter of Appraisement, however, a grant of alimony, a deed attesting a ḥaliẓah or refusal (a woman's refusal to ratify a marriage concluded for her in infancy; see Mi'un), a deed for selection of arbiters, or any other judicial writing—all these the finder should return. Writings found in a pocketbook, in a writing-case, or in a bundle of deeds should be returned; that is, when three or more are tied together (ib. 8; compare Gemara ad loc.). Deeds or bonds found among a man's own papers but which he can not account for must be left there; that is, must not be returned to the parties mentioned in the deeds or the bonds, unless they bear some indorsements or riders for his guidance (ib.).

The finder must, as a rule, advertise ("hakriz") for the true owner.

But some things which can hardly be identified, and which the owner has presumably "given up in despair" ("yi'esh"), the finder may keep without advertising, e.g., grain, fruits, or copper coins scattered about, small sheaves on the common thrashing-ground, round cakes of figs, etc. But when articles even of this class contain anything that distinguishes them they must be advertised; for instance, if there is a piece of pottery among the figs.

Fowls tied together by their wings, found behind a hedge or behind a stone fence or on the footpaths of a field, must not be touched; for should they be removed and advertised, the owner would have no means of identifying them. Articles found covered up in a dung-heap must not be taken; for they are evidently not lost, but hidden away. Things found in a very old wall or stone-heap may be kept, for they probably belonged, if found in the Holy Land, to the ancient Canaanites, or to one of some other forgotten nation. If found in a new wall, and in the outer half of the wall's thickness, they belong to the finder; if in the inner half, to the master of the house. In the former case it is supposed that some one passing on the highway has placed them in the wall.

Things found before the counter in a store are the property of the finder, having presumably been dropped by a customer; what is found behind the counter belongs to the storekeeper; and so with a money-changer.

The Scripture text, it is explained, names specifically a garment, because it is the best type of an article that can be identified and for which an owner is apt to look; hence every found article which has these two characteristics must be advertised by the finder. Nothing can be legally found that has not first been lost. A cow or an ass which is grazing along the highway is not lost; an ass with his gear hanging upside down or a cow grazing in the vineyards is lost; and the finder lies under the duty, enjoined by Scripture (Deut. xxii. 1-2), of returning the beast; and though it runs off even four or five times, he must still bring it back, and he must not charge more for his time than a workman out of employment would be willing to take for the time occupied in such a task. If the lost article is in a large basketor sack, and the finder is an old gentleman whose dignity would suffer by carrying it along the street or road, he is excused from carrying it himself to the owner; but he should notify him of his find.

As regards the use of anything found, a beast that "works and eats" should be set to working and eating while it waits for the true owner; one that eats and does not work should be sold, and the proceeds laid away. The rules in detail as to the time and mode of keeping sundry kinds of animals can not be here discussed. Where money is raised by the sale of lost and found things, the finder may use the money, but in any event he is responsible for its loss; but when money itself is lost and found he should keep it unused; and he is not responsible as a hired keeper would be, except for negligence. Such is also the liability for goods still unclaimed. He who finds books should read from them once in thirty days; if he can not read, he should turn them over at such intervals; but he should not use them for study, nor let another man read with him. He who finds coverings (e.g., bedspreads) should shake and spread them out once in thirty days—not by way of display on his own behalf, but for better preservation. Silver and copper vessels the finder may put to use, but not so as to wear or injure them. Vessels of gold and glass he should not touch at all.

According to the Mishnah (ib. ii. 6), under the prevailing opinion of R. Judah, the advertisement—of course, by word of mouth—is to be continued for the three festivals (Passover, Weeks, Booths) next following, and for seven days thereafter. During the days of the Temple this was done with a view to the possibility of the owner being absent on a pilgrimage to Jerusalem; but by an "institution" made by the sages after the Temple's fall, announcement was to be made for a shorter time in the synagogues and houses of study. At times when men of violence () claimed all things lost and found as perquisites of the crown, the finder would be justified in doing no more than telling the fact to all his neighbors and acquaintances (see Bertinoro on the Mishnah, l.c. ; Shulḥan 'Aruk, Ḥoshen Mishpaṭ, 267, 3).

The announcement is made in very general terms, such as: "Who has lost coins [or garments, or a domestic animal], let him come and describe the marks of identification." These marks should be very clear, or the property should not be given up; and if the applicant is known as a cheat, it should not be delivered to him unless he brings witnesses. In latter days, when cheats became numerous, the courts adopted the rule of calling on the applicant for witnesses as to his good character; otherwise, besides describing identifying marks, he would have to prove his ownership by witnesses. Between an applicant who describes the identifying marks on a found article and one who proves his ownership by witnesses, the latter prevails.

The active duty of the finder to take care of lost goods and to return them to the owner ("of thy brother," Deut. xxii. 3), imposed by the words of Scripture, applies only when the owner is an Israelite; in fact, no aid is to be given to an idolater by such service. However, if the finder treats a Gentile fairly ("to sanctify the Name") by impressing the outside world with the honesty of Israel, he deserves praise. An Israelite who denies his faith or defies the Law is not entitled to the finder's active care and work in returning lost property.

For the sake of peace, where a Gentile leaves his implements at night in the open air, Israelites ought to take them under cover to save them from thieves (Yer. Giṭ. v.). If the Gentile or infidel learns of the whereabouts of his goods, his title is not affected by his status.