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The Return of Lost Property According to Jewish & Common Law: A Comparison
Rabbi Michael J. Broyde & Rabbi Michael Hecht

VI. What Happens to Lost Property Whose Owner is Never Found?

According to both Jewish and common law, upon taking possession of a lost article, the finder becomes a bailee and remains one until the owner recovers the object. If a reasonable period for publicizing the find has passed, and no one has come forward with a claim, the finder remains a bailee. For how long does the finder remain a bailee? According to Jewish law, he remains a bailee until the owner claims the object, or as Maimonides put it, "until Elijah comes" [and reveals the owner's identity].59 Common law states that after reasonable efforts to find the true owner, "the finder of lost goods does not gain title thereto as against the [true] owner .... The finder of lost goods is a bailee of them for the true owner with certain rights and obligations .... As to all others, however the finder's rights are tantamount to ownership. giving him the fight to possess and hold the found goods".60 Thus, neither in Jewish nor common law can one acquire title to lost property through one's inability -- even after good faith efforts -- to find the original owner.61

However, both Jewish and common law accept that although one does not acquire title to the object, one is not completely precluded from using it. There are two schools of thought on this topic within Jewish law. Most authorities, following the rule of Rabbi Shabtai Meir HaCohen, state that in situations where Jewish law precludes the finder from taking title and the law states that the "the object should reside until Elijah comes," that phrase is properly understood to mean "the object should reside in the finder's pocket until Elijah comes" - while the user has no ownership rights to the object, it is his to use and derive benefit.62 Should the finder break it or wear it out, he owes the owner the value of the object, if the owner comes forward and claim it.63 This seems to be the approach of most decisors.64 Other Jewish law authorities disagree, and rule that in situations where the owner does not come forward, the object resides in peace, without anyone authorized to use it for his own benefit.65 According to neither of these schools of thought may the possessor (who is not the true owner) legally transmit valid title to another.

As explained above, the common law held that "[t]he mere fact of finding is not sufficient to vest in the finder any right to title to the thing found;"66 furthermore, "the finder is only the apparent general owner of the thing found, under an uncertain or contingent title which may be defeated by the discovery of the true owner".67 According to the common law rule, the finder, after reasonable efforts to locate the true owner, becomes the possessory owner, with a right to usage.68 However, as in Jewish Law, the possessory owner may not, transfer valid title to another.69 New York State, on the other hand, has rejected this legal analysis and ruled that "[t]he title to lost property . . . shall vest in the finder."70 New York law essentially directs that in situations where the true owner cannot be found after a reasonable period of time and compliance with the details of the statute,71 title vests in the finder.

In sum, both Jewish and common law (but not New York law) adopted the same rule: one who picks up a lost article prior to abandonment never takes complete title to the object. The original owner always has superior title to as compared to the finder.

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