Lost Property
LOST PROPERTY
LOST PROPERTY (Heb. avedah u-meẓi'ah; lit. "lost and found").
The Basis of the Law
Lost property, called avedah, is property which has passed out of its owner's possession and whose whereabouts are unknown to him. Both criteria must exist together for the property to be designated as an avedah (Rashi and Tos. to bm 30b, and see 31a). The Pentateuch enjoins that an avedah be returned toits rightful owner (Deut. 22:1–4). When the owner has clearly despaired of finding an avedah and of having it restored to his possession (see *Ye'ush) his ownership in it ceases, and the finder is not obliged to return it but may retain it for himself (bm 21b). Even in the absence of the owner's ye'ush, the same consequence follows if there is no possibility of the avedah being restored to him (Tos. to bm 22b; Ran, Nov. Ḥul. 38b). The laws of avedah u-meẓi'ah comprise two categories:
(1) laws forming part of property law, namely the determination of what constitutes an avedah and the point at which ownership thereof ceases so as to enable the property to be acquired by the finder (zekhiyyah); and
(2) laws circumscribing the mitzvah of restoring the lost property, i.e., laws not appertaining to property law, since the finder who fails to return an avedah and who leaves it where it was found, transgresses the law but is not obliged to compensate the owner. However, the finder who takes an avedah and appropriates it for himself is considered a thief (bm 26b).
Avedah with Retention of Ownership
In accordance with the above definition, it may be noted that, for instance, an animal grazing on public land without the knowledge of the owner, and where it is not kept from getting lost, is considered an avedah, although not if it is grazing on a path when he is aware of its presence there (Ravad, in: Asheri bm 2:26). Similarly, a garment lying in a public thoroughfare is an avedah, but not one lying behind a fence (bm 31a). Nor would a vessel that is covered, even though found in a refuse heap, be deemed an avedah (bm 25b).
Restoration
The fact that an article has been lost does not in itself involve loss of ownership. Accordingly, a person who comes across property that appears to be lost is duty bound to take it into his custody and care until it can be restored to its owner. In certain circumstances, however, the finder is exempt from this duty. Thus a kohen is prohibited from entering a cemetery and therefore cannot be responsible for an avedah which he has seen there (bm 32a). Similarly a person is also exempt if he would not normally take the object, even if it were his own, such as an elderly person for whom such an action would be considered undignified (bm 30a). Furthermore, the finder of property which is of negligible value (i.e., less than a prutah; bm 27a), or a finder who would be involved in expense in restoring the property to its rightful owner (bm 30b), are also exempt. All other finders of lost property, however, must take charge thereof and seek out the owner, to whom it must be returned. Some scholars are of the opinion that the finder's degree of responsibility for an avedah – as long as it is in his care – must be the same as that of an unpaid bailee, while others equate the standard of care required to that of a paid bailee (bm 29a; see *Bailment). In the case of an animal, if the expense of its upkeep should prove to be too high to make its return to the owner worthwhile, the finder may sell the animal after a certain period, but has to account for the proceeds to the owner (bm 28b). Inanimate property may not be used by the finder except to prevent its deterioration (bm 29b).
When the owner's identity is unknown to the finder, he must bring the avedah to the notice of the public, i.e., by announcing it. If the claimant owner offers notable identification marks (simanim), the property is returned to him, but if he is suspected of being an impostor he must also produce evidence of his ownership (bm 28b). Before the destruction of the Temple, the announcement was made from a stone platform in Jerusalem, during the three festivals when the people were gathered there. In later times the announcement was made in the synagogues, and it was also enacted that, in places where the secular authorities expropriated all lost property, it would suffice if a finder made the matter known to his neighbors and acquaintances only (bm 28b). If no claimant responds to the announcement, the finder must retain the avedah, in trust for the owner, indefinitely (Sh. Ar., Ḥm 267:15).
The mitzvah to restore lost articles to their owners is not limited to physical objects that are found, but it is extended to include the wider concept of preventing loss to one's fellow. Thus, if a man sees water flooding a neighbor's field and he is able to stop it, he has a duty to do so; or if he sees an animal destroying a vineyard he has a duty to drive it away (bm 31a). Furthermore, this wider concept even extends to the person of an individual, so that if anyone finds that another has lost his way, it is a mitzvah to set him right or to guide him as may be necessary (bk 81b).
Related to the mitzvah of returning an avedah is that of "loading and unloading" (perikah u-te'inah), which also involves saving one's neighbor from suffering losses. A person is required to come to the aid of a neighbor in the unloading and reloading of a heavily laden beast of burden (Ex. 23:5; Deut. 22:4; bm 32a–33a). In view of their common halakhic source, the laws of loading and unloading and of returning lost property are similar and interrelated (see Ḥ. Albeck, Hashlamot to Mishnah, bm 2:10).
Avedah with Loss of Ownership
When the owner despairs of having lost property restored to him, his ownership thereof ceases (see *Ye'ush) and title to the property vests in the finder. Ye'ush may be inferred from speech or conduct, or may be assumed from the circumstances in which the lost property is found. For instance, an avedah which has no identification marks, or which is found in a public thoroughfare, or which appears to have been lost a long time before – factors which make it impossible for the property to be returned – are instances in which ye'ush would be inferred. Often it is doubtful whether under certain circumstances the owner is presumed to have despaired, and the sages disagree as to whether the finder has to restore the lost property or acquires ownership in it; e.g., where the lost property has identification marks but they are liable to be erased by being trodden upon, or when the property has marks which were not made intentionally, or whether the place in which the property was found can be an identification mark (bm 23a).
A second category of lost property which becomes ownerless, and may therefore be appropriated by the finder, is that of avedah mi-da'at ("intentional loss"), i.e., when it appears from the circumstances that the property has been intentionally abandoned or thrown away by its owner and that he no longer desires it, e.g., scattered fruit on a threshing floor, figs which have dropped from a tree alongside a road, open jars of wine or oil left in a public place (bm 21a,, 23b). Finally, lost property which can no longer be restored to its owner ceases to be owned by him and belongs to the finder, even if in the absence of the owner's ye'ush. Thus an avedah carried away by the river is lost to the owner and "to the whole world," even if the owner is unaware of his loss and even if he does not despair (Tos. to bm 22b). Some scholars nevertheless establish the owner's ye'ush in these circumstances, on which ground they justify the above rules (tj, bm 2:1; 8b; Maim. Yad, Gezelah va-Avedah, 11:10). Similarly, geese and fowl which escaped from their owner and can no longer be restored to him belong to the finder (Ran on Rif Ḥul. ch. Shillu'aḥ ha-Ken, introd.).
In talmudic times it was already customary, as a matter of equitable law, to return certain classes of lost property, even if ownership thereof had already ceased, as in the case of an avedah dropped in a public thoroughfare (bm 24b). In post-talmudic times the communities of Europe adopted the practice of returning property carried away by a flood or similarly "lost to the world," either in terms of rabbinical enactments (*takkanot) or in accordance with the principle of *dina demalkhuta dina (Mordecai, bm no. 257; Rema, Ḥm 259:7; see also *Shomerim).
The laws of the State of Israel require all lost property to be handed over to the police, but the finder may claim it for himself if after a certain period the owner is not found.
[Shalom Albeck]
The Commandment to Return Lost Property and the Law in the State of Israel
(a) Section 2 of the Restoration of Lost Property Law, 5733 – 1973 obligates a person who finds and takes any lost property to return it to its owner or to report the find to the police. However, the Law imposes no obligation to take the lost object ab initio. By contrast, Jewish Law imposes a religious-ethical obligation upon a person seeing a lost article or aware of its existence to take it, with the object of returning it to its rightful owner (Sh. Ar., Ḥm 259:1). The obligation not to ignore a lost object led the Sages to develop precise definitions of the concept of lost property, so as to enable the finder of a lost object to ascertain when an obligation to return exists, when it is forbidden for him to take the object so that he will not be considered a thief or spoiler, and when he is entitled to take the object for himself.
(b) Both Jewish Law and Israeli Law recognize the finder's ability to acquire ownership of a lost object. However, the methods of acquisition in Israeli Law and in Jewish Law differ in a number of respects. Jewish Law recognizes the concept of "resignation" and rules that, if we may presume that the owner despaired of recovering his lost object before the finder took it, the finder is entitled to keep the object for himself (Sh. Ar., Ḥm 259:3); however, if the lost object was taken before the owner reached this stage of resignation, the finder can never acquire it (Sh. Ar., ibid.). Israeli Law adopted the Jewish legal concept of "resignation" and even determined that the finder becomes the new owner of the object when "the owner shall be deemed to have given up the property" (section 4 of the Law). However, the Law also defines "resignation" as occurring only after four months have elapsed from the date of the find. Moreover, even in the case of property of negligible value, in which the Law recognizes the possibility of immediate resignation by the owner, the Law makes no distinction between whether the finder took the object before or after the owner abandoned hope of its return.
(c) A person who takes a lost object and fails to fulfill the obligations imposed on him by the Law is liable to the penalties prescribed in section 9 of the Law; if he retains the property for himself he commits theft (section 383(c) of the Israeli Penal Code, 5737 – 1977). Jewish Law also regards a person who keeps an object found by him, without returning it to its owner, as a thief.
(d) Conceptually speaking, the duty to return lost property is given extremely wide interpretation in Jewish Law and includes the obligation to prevent others from loss. Any act of deliverance is regarded as the restoration of something lost. It was thus that the Sages explained the verse: "and so shall you do with any lost object of your brother" (see bm 31a; Maim. Yad, Gezelah va-Avedah 11.20). Various concepts are mentioned in this regard, e.g. "lost property" (saving land from floods), "lost person" (saving a person's life and bodily integrity; see bk 81b), and even "lost spirit" (saving a person from transgressing; see Minḥat Ḥinukh 239:4). It is thus apparent that the duty of restoration applies to all types of property or interests of others which are endangered. By contrast, the Israeli legislator preferred the practical distinction between restoring a lost object and saving another person from loss – the latter including any activity for the preservation of another person's interest. The return of lost property is regulated by the Restoration of Lost Property Law (and the definition of lost property was thus limited to movable property, concerning which an act of restoration may be performed), while activities performed to preserve another person's interest are regulated by section 5 of the Unjust Enrichment Law, 5739 – 1979.
Case Law of the Israeli Supreme Court – Lost Property Found in Another Person's Domain
In the "Hendeles" judgment (ca 546/78 Kupat Am Bank Ltd. v. Hendeles et al., pd 34(3) 57), the Israeli Supreme Court addressed the question of lost property found by one of the bank's customers on the floor of the bank's safe deposit room. The issue in these proceedings was whether this place, being open to the public, was considered "another person's domain" for purposes of section 3 of the Law, which states that "[a] person who finds lost property in another person's domain shall report the find to such other person and deliver up the property to him at his request" and adds that "[i]f the other person takes over the lost property, he shall be regarded as the finder."
Justice Barak sought to ascertain the primary purpose of the Law and reached the conclusion that the main purpose of the Law is to restore lost property to its rightful owner, and it therefore follows that the word "domain" should be construed in a manner that increases the chances of the original owner to retrieve his property. To this end, an examination needs to be made, on a case by case basis, as to whether this goal will be realized by leaving the object in the place it was found. If we reach the conclusion that it is better for the original owner if the object remains in the place where it is found, this consideration alone suffices to enable the place to come within the definition of "another person's domain," because by so doing the finder will become obligated to transfer the object to the owner of the "domain." To quote Justice Barak:
It appears to me that in considering whether a lost article was found in another person's domain, there is no room to have recourse to the question of whether that other person is regarded in the eyes of the law as the holder of the lost property even prior to its discovery by the finder… This approach – who was the first holder – does not appear to be relevant to the main goals of the Restoration of Lost Property Law. If indeed the primary interest of the Law is the restoration of lost property to its rightful owner, and if in order to realize this interest… it is fitting for the lost property to be delivered to the owner of the place, the original finder is obligated to do so, whether he is the first holder of the property, or whether it is possible to regard – according to this or any other doctrine of the laws of possession – the owner of the place as the first holder.
Justice Barak notes two factors, on whose basis it may be decided whether the lost article should be left in its place:
First, it is natural that the owner of the lost property will return to the place at which the object was lost. His reasonable expectation is that, if the object is found at that place, and if at that place there is a person whose connections to the place are such that he can be expected to guard it, he will be able to receive it there and will not need to search after the finder… Secondly, there is a high probability that the owner of the place where the lost property is found, by virtue of his links to the place, will guard the lost object for its owner to a greater extent than a random finder.
Since the bank is the "natural address" to which the owner of the lost property is liable to return when he recalls where the object was lost, the bank should be classified as a separate "domain" for the application of the provisions of section 3, and the finder is obligated to deliver to the bank the lost article that he found. If the owner of the lost object is not ascertained within four months, the owner of the "domain" – the bank – will take possession of the object, even if in terms of the laws of ownership, the original finder should become the owner.
Justice Elon, in the minority, disagreed with the opinion of his colleague and wrote: "Section 2 only applies in unusual cases – generally speaking, in the case of an article which is found in the thoroughfare of a city." By contrast, with respect to
an article found in a place which is traversed freely by thousands and even tens of thousands of people, such as the main entrance hall of a bank, in department stores and in various types of supermarkets, on buses and other modes of transport, in government offices and public institutions etc. – the manner of restoration follows the provisions of section 3 of the Law. In this way, section 3 becomes the main provision of the Law (p. 72).
He repeats and summarizes his criticism against Justice Barak in the further hearing that took place in the case (fh 13/80, Hendeles et al. v. Kupat Am Bank, pd 35(2), 785) in the following language:
According to his construction (that of Justice Barak), the provisions of section 3 form the main rule of the Law, whilst the provisions of section 2 are the exception. This conclusion, it seems to me, is at odds with the plain meaning of the Law, nor in my opinion does it conform with the object of the Law. It does not advance the Law's declared object of effecting and assuring the restoration of lost property to its owner, and the conclusion that follows, viz. that if the owner is not found after four months the property passes into the ownership of the bank and is not handed over to the immediate finder, fails to pass the test of reason and justice (p. 795).
According to Justice Elon:
Since doubt has arisen over the correct interpretation of section 3 of the Law and the meaning of the phrase "another person's domain," and this doubt cannot be resolved by the terms and content of the Law itself, it is only right and proper to turn to the Jewish legal system to find in its provisions a way to solve the problem. This is certainly true when it is apparent that the Restoration of Lost Property Law of the Knesset and the Jewish Law relating to the restoration of lost property have a common central object – to restore lost property to its rightful owner.
In this light, Justice Elon presents the position of Jewish Law in relation to the case in question, viz. that a bank's safe deposit room, being a private domain that is open to the public, over which in practice the owners have no control, is not defined, for the purposes of the lost property laws, as "another person's domain," because it comes within the definition of a "courtyard that is not guarded," while only a "guarded courtyard" can effect an acquisition on a person's behalf.
The majority of the Court did not agree with the words of Justice Elon, and even in the further hearing the majority ruled in accordance with the opinion of Justice Barak. However, it is interesting to note that Justice Elon's critical words did not fall on deaf ears, because in a memorandum for the draft Civil Law (the codification of civil legislation in the State of Israel) which was disseminated in 2004, a proposal was made to amend section 3 and to add to it the following provision: "The Court is entitled to determine that the rights in a lost article shall be divided between the finder and the domain owner in equal shares, save where it deems it appropriate to determine a different proportion" (section 800(b) of the draft).
[Michael Wygoda (2nd ed.)]
bibliography:
T. Lampronti, Paḥad Yiẓḥak, s.v.Avedah; Gulak, Yesodei, 1 (1922), 137ff.; 2 (1922), 190 n. 3; 3 (1922), 34, 40, 67f.; Herzog, Instit, 1 (1936), 299–317;, et 1 (19513), 11–15; 11 (1965), 53–100; H.E. Baker, Legal System of Israel (1968), 132–4. add. bibliography: Encylopedia Talmudit, 11: 53–100 s.v. "Hashavat Avedah"; M. Elon, Jewish Law (1988), 281–282, 564–565, 1464–72, 1564–71; M. Wygoda, Hashavat Avedah, in: N. Rakover (ed.), Ḥok le-Yisrael, 4 (1991); Y.Y. Bloya, Pitḥei Ḥoshen, Hilkhot Halva'ah va-Avedah (1983).