IV. When Does One Become a "Finder"?

The crucial distinction between Jewish and common law arises in determining when one becomes a finder. Common law is generally reluctant to impose any affirmative duties on a stranger to protect either the life or property of another; hence, no involvement or obligation is imposed on one who merely sees the lost property of another. It is entirely at the option of the finder to decide whether he will or will not take possession of the object.³⁵ According to common law, once the finder chooses to volunteer and take possession, only then will the common law impose affirmative duties of any kind. Thus, according to common law one who sees the lost property of another, just like one who sees another drowning, is under no obligation to rescue the property (or the person).³⁶ New York, accepting the common law rule, states that the "finder" means the person who first takes possession of lost property.³⁷

Of course, according to common law and New York statute, one may not take the property as one's own merely because one is not obligated to return it. "Found or discovered property may be the subject of larceny if the finder at the time the article is found ... knows or has the means of ascertaining the owner, or believes the owner can be found but nevertheless intends at that time to appropriate the article for his own use."³⁸ Thus, according to the common law, one can walk away from lost property and not get involved; however, if one gets involved, one must follow the rules.

By contrast, Jewish law, a system which imposes duties even in the absence of special relationships, requires that one who sees lost property must involve himself in that property and assist in its return. The origin of this lost property doctrine is in the Bible. Three verses in the Bible³⁹ provide the basis for the obligation to involve oneself in the lost property of another:

1] When you see your brother's ox or sheep going astray do not ignore them; you must return them to him.

2] But if your brother does not live near you, or you do not know who he is, you should bring it home to your house, and it shall remain with you until your brother claims it; then you shall give it back to him.

3] You should do the same with his donkey; you should do the same with his garment; so you should do with anything that your brother loses and you find; you have no right to withdraw [from returning it].

Jewish law accepts, based on these verses, that there is a legal imperative to intervene and return the lost property of another. Furthermore, this is in harmony with Jewish law generally, which imposes a duty upon all members of the community to intervene to aid another member of the community.⁴⁰

The exact parameters of the obligation to assist in property return is of some dispute within Jewish law. Most authorities⁴¹ are of the opinion that one who sees lost property and then declines to pick it up has transgressed both the negative prohibition of "you have no right to withdraw [from returning it]" and the positive commandment of "you shall give it back to him."⁴² A number of authorities adopt a different understanding, which is closer (albeit by no means identical) to the common law rule. These authorities rule that if one is aware that visible property is lost, but never takes physical possession of the lost object, he is only guilty of transgressing the negative prohibition of "you have no right to withdraw [from returning it];" the positive commandment of "you shall give it back to him" does not apply unless the finder takes actual possession and does not return the object.⁴³

However, according to both opinions, there is a clear legal obligation to retrieve the lost property of another. Jewish law allows no option to one who comes upon such property as to whether he should become involved.⁴⁴ Nevertheless, virtually all authorities maintain that one who violates this obligation and deliberately passes over the lost object of another and the item is subsequently never returned incurs no legally enforceable duty of compensation to the person whose object was lost, although it is right and proper to do so.⁴⁵ Essentially, the obligation to stop and involve oneself in the lost property of another is an ethical duty whose violation is without financial penalty. Of course, one who picks up a lost, unabandoned, item with the intent of taking actual possession of the item returning it to its original owner has committed an act of theft for which compensation is required. In addition, such a person has violated both the positive and the two negative commandments to return lost property.⁴⁶

Yet, it is interesting to note that according to both Jewish and common law one who picks up lost property intending to return it, and upon examining it determines that there are no marks on it which will enable the finder to identify the owner is, is not guilty of theft, even if by due diligence the owner could have been found (and the owner is still looking for the object). According to Jewish law, such conduct typically violates the obligation to return lost property (but is not theft) and according to the common law such conduct is conversion, but not theft.⁴⁷

The religious duty of aiding a stranger with whom one has no prior (legal) relationship has become the cornerstone of the Jewish law. This is but one example of many where the Jewish law imposes an ethical obligation to come to the aid of a stranger to protect either his physical or spiritual well-being or his property.⁴⁸