The Return of Lost Property According to Jewish & Common Law: A Comparison

Michael J. Broyde¹ & Michael Hecht

Table of Contents

1. Introduction
2. When is Property "Lost"
3. When is Property "Mislaid" Rather than "Lost"?
4. When Does One Become a "Finder"?
5. Duties of the Bailee-Finder
6. What Happens to Lost Property Whose Owner is Never Found?
7. What Type of Bailment is Created Between the Finder and the Owner?
8. Is the Finder Entitled to Compensation?
9. How Does the Finder Identify the Owner?
10. Salvage from Destruction: An Exception to the Rules?
11. Above and Beyond the Obligation of the Law
12. Conclusion
13. This Chart Compares Principles Used by Jewish, Common and New York Law in the Area of Lost Property

I. Introduction

In every legal system a gap exists between the law as it is actually enforced by the courts and the ethical categorical imperative.² Although it was rejected by Justice Holmes in his "bad man rule,"³ a strong claim can be made that the measure of an enlightened and advanced legal system and society is its success in bridging this gap. Within a religious legal system⁴ which rejects the clear separation of law and ethics, the severity of this problem is ameliorated. As illustrated by Jewish law, even such a system's purely civil law must be influenced by ethical duties to a far greater degree than in secular legal systems.⁵

This article compares the legal rules and jurisprudence of the American common law and Jewish law in the area of finding and returning lost or abandoned property, illustrating the interplay between the purely legal and ethical components of the respective legal systems. Surprisingly enough, the differences between the two systems are not usually significant; they follow the same basic legal principles, and typically lead to the same results.⁶ There is, however, one major exception: Jewish law imposes a duty to rescue the lost property of one's neighbor, while the common law does not require that one initiate the process by retrieving the article. Thus according to Jewish law, when one happens to stumble across lost property, one must intervene to retrieve it; according to the common law one need not. Second, Jewish law imposes ethical duties as part of its legal mandate, a practice the common law does not follow.⁷

This article approaches the issues raised in returning lost property in the order they are encountered as property is lost or found. The first two sections discuss the issue of defining "lost property"; the next four sections discuss the obligations of the finder; the subsequent two sections discuss the legal relationship between the finder and the original owner; and the last section discuss miscellaneous issues related to lost property.