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

VII. What Type of Bailment is Created Between the Finder and the Owner?

Jewish law recognizes essentially three categories of bailment, each with varying degrees of responsibility: 1) The gratuitous bailee, who is liable only for negligence; 2) The bailee-for-hire, who is also liable for theft or loss; and 3) The borrower, who is virtually an insurer, and liable for almost all mishaps which may befall the article.72

The Talmud cites two opinions concerning the category of bailment created when one finds lost property. "A bailee of lost property: Rabbah ruled that he is a gratuitous bailee; Rabbi Joseph maintained that he was a bailee-for-hire."73 It is unclear which of these two opinions Jewish law accepts as normative. Many early authorities including Maimonides and Joseph Karo, the author of Shulhan Arukh74, rule in accordance with the opinion of Rabbi Joseph and therefore hold the finder responsible not only for negligence, but also theft or loss not attributable to negligence.75 Many other authorities, including Rabbi Moses Isserless accept the opinion of Rabbah, and rule that the finder only has the status of a gratuitous bailee, and is liable only for his negligence.76 This dispute remains unresolved in Jewish law,77 and whoever is the possessor is given the benefit of the doubt, and has applied to him the legal standard that would be most beneficial.78 In a situation where there is no possessor most authorities rule that the law is in accordance with those authorities who state that the person is a bailee-for-hire.79

The opinion classifying the finder as a bailee-for-hire requires explanation. Why should a person who is involuntarily returning lost property assume the status of a paid bailee? Rabbi Joseph80 renders his opinion based on an overtly religious doctrine of esek bemitzva, the rule that while one is engaged in the actual performance of a legally compulsory religious duty, one is excused from other legal obligations, including financial obligations. Thus, Rabbi Joseph recounts that if perchance while the bailee was attending to the lost article for the owner's benefit81 -- a legally compulsory duty -- a poor man came for a donation, one would be excused from giving him charity, and such charity is otherwise mandatory.82 His involvement in attending to a lost object exempts the bailee from attending to the poor man (which would otherwise be obligatory), thereby allowing the returner of lost property to derive a clear financial benefit from his action; such a benefit qualifies as a payment. This financial benefit, according to Rabbi Joseph, is sufficient, without more, to classify the finder of lost property as a bailee-for-hire, since he can derive financial benefit from his bailment.83 This outcome is unlikely, however, and that is why some authorities accept the opinion of Rabbah and rule that since the financial gain is sufficiently remote, a finder should better be classified as a gratuitous bailee.

The precise dispute as to the status of the finder occurs in the common law. As one authority states:

The finder of lost property who takes possession of it assumes the duties of a bailee without compensation although some authorities hold the finder to be a bailee for hire.84

However, in common law, the majority opinion is that the finder is a gratuitous bailee, with only a minority of authorities accepting the bailee for hire rule.85 Both opinions can be logically understood within the framework of the common law. One need only be a gratuitous bailee, since one's actions are completely voluntary; according to common law, one need not even pick up the lost object. To burden the volunteer by imposing upon him obligations of a paid bailee would only further discourage one from rescuing lost property. On the other hand, there is a reasonable chance that the finder will derive a monetary benefit from his actions, since if the true owner does not come forward, the finder stands to gain use of the property rent free. Thus one could classify him as a bailee for hire, since he is seeking to rescue the property with the hope of using it.86

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