III. When is Property "Mislaid" Rather than "Lost"?

Jewish law recognizes a fundamental distinction between lost property and mislaid property. While Jewish law compels a person to affirmatively act when he encounters lost property,²⁵ no such obligation is present for mislaid property. One who encounters mislaid property not only need not pick it up, indeed one is prohibited from picking up the property, whether to find its original owner or to claim it as lost.²⁶ The rationale for this is obvious: if the property is placed in a particular place (that is relatively secure), the easiest way to ensure that the object is returned to its owner is to do nothing: the owner will return to retrieve his possession.²⁷ If one picks up the mislaid property in violation of Jewish law, one must attempt to return the property to its owner; even if the owner is never found, the finder never takes valid title, since the initial act of picking up the object was not lawful.²⁸

The identical distinction is found in the common law. As one well known treatise on personal property states:

To intentionally place an article down and then go away, forgetting it, has often been held not a losing of it; thus the discoverer of the article is not a "finder" and does not have a finder's rights.²⁹

According to common law, one who places an item down deliberately has created some form of a bailment with the one on whose property the item is left.³⁰ The "finder" of the item is not the finder according to common law, but must leave it as a bailment with the person on whose property it was found, since the one who mislaid the property is most likely to remember where the item was placed, and return to that spot to retrieve his item.

On a practical level, both Jewish and common law found it difficult to distinguish between mislaid and lost property in "hard" cases. Jewish law resolved these issues by creating a presumption in favor of mislaid property. If doubt exists whether the article was deposited or lost, the finder should not assume possession.³¹ Rabbi Moses Isserless³² adds a number of additional factors He distinguishes three situations:

(1) The object is located in a reasonably safe location.

Here, the law is, as stated above, that the finder should not touch the object whether identifiable by identifying marks or not, as long as reasonable doubt exists that it was intentionally deposited rather than dropped;

(2) The article is located in a place where its safety is doubtful.

In this case, if doubt exists whether it is deposited or dropped, the finder is obligated to take and proclaim the find if identifying marks are present. If there are no identifying marks, the object should not be touched, as moving it would decrease the likelihood on locating the original owner.

(3) The object is situated in a place where it definitely is not safe, e.g., a public highway.

Here, if no identifying marks are present, the finder may take possession and title of the object even though reasonable doubt exists that it was deposited there, provided it is an object whose loss would be already noted by its owner, thus allowing for the presumption of prior abandonment. If identifying marks are present, the finder must seek out the owner and return his lost property to him.

Common law, like Jewish law, looked to the place where the object was found as the crucial factor in determining whether an item was lost or misplaced. Thus:

if the owner laid the property down in a public place, in a place of business as in a private compartment of a safe deposit company or other place ... it is not lost, but mislaid, property. But where the articles are accidentally dropped in any public place, public thoroughfare or street they are lost in the legal sense.³³

New York State, on the other hand, abolished the distinction between lost and misplaced property for the purposes of the laws of lost property. It does not matter how or why property is without an owner; all such property is lost.³⁴