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February 11, 2011
What about finders keepers?
Laws of lost or abandoned property in Jewish and common law.
YECHIEL BAITELMAN
During your evening stroll, you see a small crowd gathered around a beautiful mansion engulfed in flames. Firefighters are desperately trying to put out the fire, but with little success. The owners of the house are watching in despair and resignation as their home and all its contents go up in smoke. At risk to your life, you dash through the flames, managing to retrieve an original Vincent Van Gogh painting just moments before the house collapses. The owner runs over and embraces you, effusive in his thanks.
“That painting,” he says, “is the most expensive item in the house. Thank you for rescuing it for me.” “For you?” you answer in surprise. “I didn’t endanger myself in order to return the painting to you! You gave up on saving anything from the house. This painting is abandoned property that I recovered, and now it is mine.”
Must you return the painting to its owner? Or can you claim it for yourself? How would common law resolve these questions, and would talmudic law differ in its approach or conclusion?
Under common law, the finder of lost property has title to the property as against the entire world except the true owner. This rule was established in the seminal case of Armory v. Delamirie, where the court held that a jewel found by a chimney sweep belonged to the chimney sweep since the original owner could not be found.
In common law, there are two principles. First, “the finder ... does not by such finding acquire an absolute property or ownership” in the lost item and, second, despite the above, the finder does have “such a property as will enable him to keep it against all but the rightful owner.” Thus, under common law, a finder of any lost object has a somewhat-limited interest that can be superseded by the true owner. Under common law, a finder is under no obligation to affirmatively protect the true owner from the loss by picking up the item.
Jewish law takes a different approach. The Torah commands that when one sees lost property, one is obligated to pick it up, take care of it and attempt to return it to its rightful owner. These obligations stem from Deuteronomy 22:1-3, which mandates that one must proactively protect someone else from a loss by taking the lost property into one’s home and caring for it until the owner correctly identifies it.
The difference between common law and talmudic law is that, under common law, property law was created not to reflect the realities of ownership (i.e. to determine who actually owns the item at issue) but to assist in the administration of a just and orderly society. Talmudic law, in contrast, sees property ownership not as a utilitarian or pragmatic convention to assist in a functioning society, but as an absolute reality. Therefore, ownership rights cannot simply be terminated, unless there is some legally recognized mechanism to bring about this change. For example, an owner must actively relinquish ownership before someone else is able to take possession of it. Without such a mechanism, the original ownership of the item, its “reality,” has not changed, and no matter how difficult the task, the finder will usually have an obligation to use all reasonable means to return the item to its owner.
Often, circumstances cause an owner to lose hope that he will ever be able to find the lost object. This is referred to in the Talmud as ye’ush (despair). As a result of such despair, a mental state of abandonment is created whereby the owner relinquishes possession. As a consequence of this abandonment, the finder of the lost object is vested with complete ownership rights and the true owner can make no claim on the “lost” property. Moreover, while abandonment is sometimes a conscious decision, talmudic law presumes abandonment by an owner in catastrophic situations, where it is highly likely an object will be lost or destroyed without any chance of recovery. Legally, the object would belong to the finder. However, by rabbinic legislation, there remains an ethical mandate to return a presumptively abandoned object even in this situation.
Common law, on the other hand, will not presume abandonment (and give unencumbered title to the finder), but it also generally imposes no duties on a finder. Instead, it gives a finder of commonly termed “lost” property rights in the item as against the entire world but the true owner.
In the case of the Van Gogh salvaged from a burning house, unless the owner conclusively proves they never lost hope of realistically saving the painting, talmudic law treats the painting as abandoned and vests title to the painting in the individual who rescued it. Common law, which will not presume abandonment, is not likely to reach this conclusion and will likely vest title in the original owner as against the finder.
This article was written by Rabbi Yechiel Baitelman, director of Chabad of Richmond and the Jewish Learning Institute of the Lower Mainland. He was assisted by Rabbi Mendy Halberstam, a Florida-based civil-litigation lawyer.
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