II. When is Property "Lost"?

Jewish law recognizes that property may become ownerless by one of two means: (1) abandonment, which is an express renunciation by the former owner of his ownership; or (2) express or implied "forsaking hope" of reclaiming an object which one has legal title, but not possession by the owner of that item. Abandonment is effective only for property in one's own possession at the time of abandonment. By contrast, forsaking hope is applicable to both lost and stolen property; it is a relinquishment of the right to have the property returned. It results from external, involuntary circumstances which have placed the property beyond the possession of the owner, and the owner's realization that he is unlikely to ever recover his property. These juridical concepts in Jewish law find nearly perfect analogy in the common law doctrines of relinquishment and abandonment. For example, after abandonment in Jewish law and abandonment in common law, the finder of lost property can properly exercise dominion over the object, thereby vesting title and absolute ownership in himself.

While this legal rule is quite clear in both legal systems, its applications are underdeveloped in common law compared to Jewish law. The critical question is: what factual circumstances warrant a finder to conclude that abandonment by the initial owner has occurred? A noted writer on the common law of personal property indicates that the common law is hazy and undeveloped on this question. "No cases have been discovered dealing with the question of the circumstances that would justify a finder in assuming dominion over lost goods on the assumption that the owner had abandoned them, or could not be discovered."⁸

Jewish law, on the other hand, provides a detailed set of rules which regulate when abandonment has occurred or may be presumed. The finder may gain title to the lost property if abandonment has expressly occurred, or if it may be reasonably presumed. One illustration of express abandonment is presented by the Talmudic scholar, "Rabbi Zvid "The general principle in regard to a loss [of property] is if (the loser) has said 'Woe! I have sustained a monetary loss,' he has abandoned his object."⁹ No prior communication of the declaration of abandonment to the finder is necessary.

The circumstances in Jewish law in which abandonment may be presumed has generated far more discussion. The Mishnah,¹⁰ discussing which type of property cannot be presumed to be abandoned,¹¹ explains that the finder's duty of the public proclamation applies if two conditions are satisfied: the object must have (1) claimants; and (2) identifying marks or signs which would allow the original owner to identify the object as his. An owner of a lost article, the Mishnah posits, cannot be expected to have abandoned hope for its return if he has means of identifying the object, and he knows that the law requires that one return objects to its rightful owner. However, once he is aware of the loss, the owner can be expected to abandon hope of recovery if the lost item has no unique identifying marks which would allow him to reclaim his object.¹²

Jewish law added one further element to determine whether one can presume abandonment of a lost object or is obligated to seek out the owner and return the find. This is the concept of yeush shelo medat, literally abandonment without knowledge, which is the subject of an involved and famous Talmudic dispute.¹³ The concept is applied to lost property not identifiable by unique marks -- situations where Jewish law would normally assume abandonment. If the finder takes possession of lost property prior to the owner's awareness of his loss, the latter's subsequent abandonment is ineffective and the property must be returned to the owner once his identity is satisfactorily established. In his analysis of this rule, Rabbi Isaac Herzog, states that through the application of this principle, "the scope of abandonment is considerably reduced."¹⁴ Indeed, he comments, "The reader may well wonder under what conditions abandonment is effective."¹⁵ Although there undoubtedly is some truth to this assertion, it unnecessarily overestimates the practical consequences entailed by the application of this principle. The Talmud provides detailed guidelines which aid the finder to reasonably conclude that the owner became aware of the loss shortly after its occurrence, or in any event, before it was found, permitting the finder to properly assume title. For example, the loss of money is presumed to be discovered virtually immediately by the loser since "a person usually touches his wallet at frequent intervals."¹⁶ Likewise, the Talmud places in this category particularly precious items, and those which are heavy, since people quickly notice the loss of such items.¹⁷ So too, an object which has been lost for a long time (even if it has a unique identifying mark) is presumed to be abandoned, since Jewish law assumes that people eventually discover losses of property.¹⁸

However, the legal principle of unintentional abandonment -- that in order for abandonment to be effective it must precede the finder's taking possession -- presents analytic and jurisprudential problems within Jewish law. The Talmud appears to indicate that the finder took the article in violation of the law, without right, since an unknowing owner is not capable of abandonment which would entitle the finder to claim ownership, and any subsequent abandonment is not given retroactive effect for the benefit of the finder. This seems to be the explanation of the Tosafists.¹⁹ Yet, this argument contains an inherent difficulty, for it is appropriate to apply the improper conduct concept only to a case of theft and not to one of lost property.²⁰ Nahmanides, obviously aware of the difficulty implicit in this approach, offers an entirely different rationale²¹ to explain the ineffectiveness of unknowing abandonment, based on the premise that abandonment is possible only if the object is not in fact within the possession of the one abandoning the object. He argues that since the finder took possession of the lost article prior to abandonment and thereby became a bailee of the owner, the owner's subsequent abandoning hope of recovery is not effective since one cannot abandon hope of recovering property which is legally considered within his own possession, and the possession of the bailee is considered that of his bailor.²² Whichever approach one takes, it is clear that abandonment is only effective prior to finding the object.²³ Such a result stands in contrast to the law in New York State, which, in its recodification of the lost property laws, rejects all of the common law (and Jewish law) formalism and defines "lost property" as follows:

Lost or mislaid property. Abandoned property, waifs and treasure trove, and other property which is found, shall be presumed to be lost property and such presumption shall be conclusive unless it is established in an action or proceeding commenced within six months after the date of the finding that the property is not lost property.²⁴

In New York, property is lost when the owner does not know where it is.