Finders keepers? A historical survey of lost and abandoned property and the law.

• Author: Parcasio, Marjun

Introduction

You are walking along a busy downtown street when a small object on the ground catches the corner of your eye. Intrigued, you bend down to find a small pouch which upon further examination contains a gold bracelet. There is neither attached identification nor any sign of the owner. To whom does this bracelet now belong? Does the well-known adage of "finders keepers," the law of the elementary school playground, apply in this case? Or are there actual formal laws at play that delineate specific rights of possession?

Beyond simple moral considerations, the legal principles of "lost and found" that govern this fictional scenario are ones which jurists have debated for centuries. This article provides a historical overview of these issues and briefly explores some of the complexities associated with this field of personal property law.

Foundations in Roman Law

The basic foundations of the law of lost and found are rooted in the legal codes of ancient Rome. In fact, the concept of finders keepers derived from the work of the second century jurist Gaius, who suggested that unowned property (res nullius) became "the property of the first taker." (Lueck) The Roman Emperor Justinian further proposed that property which was intentionally abandoned by its owner (res derelicta) turned into a res nullius and could thereafter be claimed by any individual who found it (known as occupatio.) (Metzger)

The basic foundations of the law of lost and found are rooted in the legal codes of ancient Rome.

But not all things seemingly left abandoned fell under this category. Objects could "drop out of moving vehicles without their owner's knowledge," Justinian surmised, or thrown off a ship in a storm out of necessity. (Metzger) In these cases, the original owner retained his or her right of ownership and to take the property would be constituted as theft. (Melville) Roman law thus began to flesh out some formative distinctions about property ownership which would subsequently form the basis of the modern Western legal tradition.

Developments in English Common Law

The seminal case in the law of lost and found is Armory v. Delamirie (1722), 1 Strange 505, 9 ER 664, a tort case tried in the Court of King s Bench, England, in 1722. The plaintiff, a chimney-sweep's boy, found a jewel during the course of his work and sent it to a goldsmith (the defendant) for valuation. The defendant's apprentice removed the jewel and offered three half-pence as...