One area of lost property law is not discussed: Jewish law's ruling concerning the role of makom (place) and the obligation to return the lost property of a Gentile are omitted from this article and will be addressed in a forthcoming article by these authors entitled “The Gentile and Returning Lost Property According to Jewish Law: A Theory of Reciprocity,” in the Jewish Law Annual.

1. See, for example, Herzog, Isaac, Moral Rights and Duties in Jewish Law, 1 The Main Institutions of Jewish Law 381–86 (The Soncino Press, 1936)Google Scholar, for an excellent general analysis of moral claims in Jewish law as compared with those in English common law.

An introduction to Jewish law might be needed for some readers. The Pentateuch (the five books of Moses, the Torah) is the historical touchstone document of Jewish law and, according to Jewish legal theory, was revealed to Moses at Mount Sinai. The Prophets and Writings, the other two parts of the Hebrew Bible, were written over the next 700 years, and the Jewish canon was closed around the year 200 before the common era (“BCE”). The period from the close of the canon until 250 of the common era (“CE”) is referred to as the era of the Tannaim, the redactors of Jewish law, whose period closed with the editing of the Mishnah by Rabbi Judah the Patriarch. The next five centuries were the epoch in which the two Talmuds (Babylonian and Jerusalem) were written and edited by scholars called Amoraim (“those who recount” Jewish law) and Savoraim (“those who ponder” Jewish law). The Babylonian Talmud is of greater legal significance than the Jerusalem Talmud and is a more complete work.

The post-Talmudic era is conventionally divided into three periods: (1) the era of the Geonim, scholars who lived in Babylonia until the mid-eleventh century; (2) the era of the Rishonim (the early authorities), who lived in North Africa, Spain, Franco-Germany, and Egypt until the end of the fourteenth century; and (3) the period of the Ahronim (the latter authorities), which encompasses all scholars of Jewish law from the fifteenth century up to this era. From the period of the mid-fourteenth century until the early seventeenth century, Jewish law underwent a period of codification, which lead to the acceptance of the law code format of Rabbi Joseph Karo, called the Shulhan Arukh, as the basis for modern Jewish law. The Shulhan Arukh (and the Arba'ah Turim of Rabbi Jacob ben Asher, which preceded it) divided Jewish law into four separate areas: Orah Hayyim is devoted to daily, Sabbath, and holiday laws; Even Ha-Ezer addresses family law, including financial aspects; Hoshen Mishpat codifies financial law; and Yoreh Deah contains dietary laws as well as other miscellaneous legal matters. Many significant scholars—themselves as important as Rabbi Karo in status and authority—wrote annotations to his code which made the work and its surrounding comments the modern touchstone of Jewish law. The most recent complete edition of the Shulhan Arukh (Vilna, 1896)Google Scholar contains no less than 113 separate commentaries on the text of Rabbi Karo. In addition, hundreds of other volumes of commentary have been published as self-standing works, a process that continues to this very day. Besides the law codes and commentaries, for the last 1200 years Jewish law authorities have addressed specific questions of Jewish law in written responsa (in question and answer form). Collections of such responsa have been published, providing guidance not only to later authorities but also to the community at large. Finally, since the establishment of the State of Israel in 1948, the rabbinical courts of Israel have published their written opinions deciding cases on a variety of matters.

2. Justice Holmes subscribed to the view, extremely popular in its day, that the law should only attempt to provide guidance for acceptable “legal” rather than proper conduct; thus Justice Holmes was of the opinion that:

Holmes, Oliver Wendell, The Path of the Law, 10 Harv L Rev 457, 459 (1897)Google Scholar.

3. A system in which law is but one component of a religious system. For two recent Hebrew works that are nearly restatements of the Jewish law and ethics in the area of lost property, see Bassri, Ezra, 3 Dinnai Mammonut, 42–82 (Jerusalem, 2d ed, 1990)Google Scholar and Blau, Jacob, Pithei Hoshen (Laws of Loans and Lost Property) (Jerusalem, 1983)Google Scholar. Translations of these works cited herein are those of the authors. In addition, a review article on this topic can be found in 11 Encyclopedia Talmudic, Returning Lost Property at 54.

4. This area of the law was chosen for a number of other reasons also. First, it is an area of the law far distant from any apparent religious significance, thus making it an excellent paradigm for comparing the civil law of a religious system with the civil law of a secular system. Second, from the perspective of the common law, the field of lost property is devoid of constitutional or federal interests, thus allowing the common law to develop in its historical manner.

5. In the Chart at the end of this article, we summarize these distinctions in tabular form. In order to demonstrate that this overlap is not an inevitable result that any legal system would have reached, this article—and the chart—also include the legal results that would be reached in New York State, which in 1958 recodified its laws of lost property and moved them away from the common (and Jewish) law rules.

6. Neither author is well trained in legal history, and thus will not claim that the common law was in fact influenced by Jewish law in its analysis of this area, rather than merely co-evolving in the same way as a matter of coincidence. However, given the significant overlap in the substantive legal rules used (and the fact that these rules are not the only ones possible, as demonstrated by New York's complete, but different, statutory structure), it would not come as a surprise if such an influence were shown, nor would this be the first time such an influence has been shown. See Shapiro, Judith A., Shetar's Effect on English Law - A Law of the Jews Became the Law of the Land, 71 Georgetown L J 1179 (1982)Google Scholar, and Bruz, Issac, The Privilege Against Self-incrimination in Anglo-American Law: The Influence of Jewish Law in Rakover, Nahum, ed, Jewish Law and Current Legal Problems 161 (Library of Jewish Law, 1984)Google Scholar.

7. Brown, Ray, The Law of Personal Property, 32 n 4 (Callaghan & Co, 3rd ed, 1975Google Scholar) [hereinafter Brown, Personal Property]. Common law operates under the general assumption that property is lost and abandonment has not yet occurred; see Paset v Old Orchard Bank & Trust Co., 19 111 Dec 389, 111 App 3d 534, 378 NE2d 1264 (111 App 1978); Martha's Vineyard Scuba Headquarters, Inc., v Unidentified, Wrecked and Abandoned Steam Vessel, 833 F2d 1059 (1st Cir 1987)Google Scholar.

A claim could be made that the absence of development in this area of common law results from common law being driven by the case method. One suspects that frequently people simply take possession of lost property without a clear legal determination of their right to do so. Common law only allowed for development of this law in the rare circumstance where all of the following six events occurred: (1) property was lost in a context where abandonment might, but need not, have occurred; (2) the property was found by another; (3) the original owner discovered who found his property; (4) the finder refused to return the object; (5) the original owner sued to recover the object; (6) there was a legal dispute (rather than a factual dispute) that resulted in an appellate decision. Jewish law, since it is driven by legal scholarship, developed definitions of abandonment even in the absence of a case.

8. Bava Meziah 23a; Maimonides, Moses, Mishnah Torah, Theft and Abandonment 14:3Google Scholar.

9. Bava Meziah 27a.

10. See Section III below for a further discussion of this issue.

11. Karo, Joseph, Shulhan Arukh, Hoshen Mishpat 262:6Google Scholar; Blau, , Pithei Hoshen at 2:5–7 (cited in note 3)Google Scholar.

12. Bava Meziah 21b-22b.

13. Herzog, , Main Institutions of Jewish Law at 1:307 (cited in note 1)Google Scholar.

14. Id.

15. Bava Meziah 21b; Shulhan Arukh, Hoshen Mishpat 262:3.

16. Bava Meziah 21b; Shulhan Arukh, Hoshen Mishpat 262:3.

17. After a reasonably long time, it is presumed that they abandon hope of ever having their property returned, even if it is clearly marked. Shulhan Arukh, Hoshen Mishpat 262:5Google Scholar. For a discussion of what happens to such property, see Section VI.

18. See Lorberbaum, Jacob, Netivot Hamishpat 259Google Scholar, citing Tosafot, Bava Meziah 26a s.v. v'nezel. See also Tosafot, Bava Kama where Tosafot, carrying this point to its logical conclusion, states that one who picks up an object before abandonment occurs, no longer holds the item as a bailment for the original owner after abandonment, but rather takes ownership of the item and owes the value of the item to the original owner as a debt. Tosafot's assertion becomes crucial for determining what happens to these items after abandonment; see also Section IV for a further discussion of this issue.

19. See Bava Kama 66a, where the “in violation” rule is applied to theft and specifically indicates that it does not apply to lost property. That discussion can be understood to apply only if abandonment preceded the finding. Rabbi Yom Tov Ashbealli (Ritva), quoted by Shita Mekubezet on Bava Meziah 26a, compounds the problem by pointing out that the finder is under an affirmative obligation to take lost property into his possession and attempt to find the owner. He, therefore, understands that the Talmudic statement “possession acquired in a prohibited manner” merely indicates that no abandonment has been made, thus entitling the finder to acquire title.

20. Nahmanides, , Milhamot Hashem on Alfasi, Bava Meziah 26aGoogle Scholar. Whether Nahmanides' or Tosafot's rationale is deemed correct is of critical importance in determining what happens to these items; see also Section IV.

21. Emanuel Rackman has cited unknowing abandonment as an illustration of Jewish law's attempt to improve the ethical values of the Jewish people, since clearly this principle of law could hardly ever become the subject of litigation. Since the rule is applied to property not identifiable by unique marks, the practicality of the situation virtually insures that the true owner will never recover what he once possessed. Yet the finder is precluded from asserting ownership over the object, and is subject to the same duties, to be discussed below, that are applied to the finder who can reasonably expect that he will eventually be required to deliver the property back to the original owner. As Rackman concludes, “Through such a rule the mores of the people with regard to lost property were improved for the rule was an essential part of the eduction of Jews throughout the ages.” Masmid, Yearbook of Yeshiva College 1948 12–13 (1948)Google Scholar.

22. Nahmanides' rationale would be accepted by the common law as correct. According to the common law, abandonment cannot be valid unless one both abandons claim to an item and also abandons actual physical ownership of the item; one who announces intent to abandon an item without actually relinquishing control has not abandoned the property as a matter of law according to common law. See Abandoned, Lost and Unclaimed Property, 1 Am Jur 2d § 15 [hereinafter Abandoned Property]Google Scholar.

23. McKinney's Consolidated Laws of New York Annotated, Personal Property Law, ch 41, Art 7-B, § 251 [hereinafter Laws of New York].

24. See Section IV below.

25. Shulhan Arukh, Hoshen Mishpat 260:9–10 and 262:7Google Scholar.

26. It seems clear that even Jewish law, which requires that one take possession of lost property and return it to its owner, does not require that one guard deliberately placed properties to prevent their theft; Blau, , Pithei Hoshen at 4:n 3 (cited in note 3)Google Scholar.

27. Isserless, Moses (Rama), commenting on Shulhan Arukh, Hoshen Mishpat 260:9Google Scholar. This is in accordance with the general Jewish law rule that abandonment does not grant the possessor valid title if the possessor himself acquired the item improperly.

28. Brown, , Personal Property at 29 (cited in note 7)Google Scholar. The statement in the second edition of Personal Property, written more closely conforming to the common law rule, states:

Brown, Ray, Personal Property 28 (Callaghan & Co, 2d ed, 1955)Google Scholar.

29. See, for example, Kincaid v Eaton, 98 Mass 139, 93 Am Dec 142 (1867)Google Scholar; McAvoy v Medina, 93 Mass 548, 87 Am Dec 733 (1866)Google Scholar. What exactly happens to these items will be discussed in Section IV.

30. For example, if an animal is found roaming in the fields during the day, or an object buried in the sand, or a garment or spade is found by the side of a field fence, the finder should conclude that the owner will return and retrieve their items. See Shulhan Arukh, Hoshen Mishpat 261:1–2Google Scholar.

31. Shulhan Arukh, Hoshen Mishpat 260:10Google Scholar.

32. Abandoned Property, 1 Am Jur 2d at § 10 (cited in note 22)Google Scholar.

33. Id at § 6.

34. See text accompanying note 23.

35. Brown, , Personal Property at 30 (cited in note 7)Google Scholar. Compare Murgoo v Cogswell, 15 D Smith 359Google Scholar. It, of course, is sometimes an extra-legal obligation to become involved in returning lost property. See Childs, Frank, Principles of the Law of Personal Property 443 (Callaghan Co, 1914)Google Scholar (“A person seeing lost property is not under any legal obligation to take it into his possession, however great this moral obligation to do so may be … “).

36. This is also consistent with the general common law rule which requires a special legal relationship to be present before the common law imposes a duty. This special legal relationship can be contractual, such as employer-employee, biological, (for example, parent-child) or involuntary such as a tort-feasor's relationship with the victim.

37. Laws of New York at § 251 (cited in note 23). Thus in a case where two boys discovered an envelope containing $12,300 in cash, and sought the assistance from a 15-year-old girl who—with the two boys—took the money to her house, all three are finders for the purpose of the law. Edmonds v Ronella, 73 Misc2d 598, 342 NYS2d 408 (NY Supp 1973)Google Scholar.

38. Childs, , Personal Property at § 337 (cited in note 35)Google Scholar.

39. Deut 22:1–3Google Scholar.

40. The approach of Jewish law to aiding members of the community is based on the verse “[d]o not stand [by idly] and let your brother's blood be spilled.” Lev 19:16Google Scholar. Based on this and other textual imperatives, Jewish law generally imposes a duty to intervene so as to protect others from injury.

41. See, for example, Yitzhaki, Rabbi Solomon (Rashi), commenting on Bava Meziah 30aGoogle Scholar; Habib, Yosef, Nimukei Yosef, Bava Meziah 30aGoogle Scholar; Maimonides, Moses, Mishnah Torah, Theft and Abandonment 11:1Google Scholar; Halevy, David, Turai Zahav (Taz), Shulhan Arukh, Hoshen Mishpat 259Google Scholar.

42. For a lengthy discussion of this, see Blau, , Pithei Hoshen at 1:1 (cited in note 3)Google Scholar and notes accompanying that section. Jewish law draws jurisprudential distinctions between positive and negative commandments which are beyond the scope of this article. For an explanation of these differences, see Elon, Menachem, Hamishpat Haivri 185–199 (Jerusalem, 3rd ed, 1988)Google Scholar.

43. See Yosef Habib, Nimukei Yosef, commenting on Alfasi, , Bava Metzia 30aGoogle Scholar, and Falk-Cohen, Joshua, Sefer Meirat Einayim, Shulhan Arukh, Hoshen Mishpat 259:1Google Scholar. This clause is based on the statement in Bava Metzia 26b that if the finder waits until the owner abandons hope of recovery by expressing abandonment and then takes the article, he has transgressed only the “you have no right to withdraw [from returning it].” See Nahmanides, , Commentary on Bava Meztia 30aGoogle Scholar and Falk-Cohen, Sefer Meirat Einayim cited above.

However, most authorities disagree. They distinguish Bava Metzia 26b on the grounds that one cannot be said to have negated the command “you shall give it back to him” without some positive act which would indicate a refusal to return the article, and in Bava Metzia 26b no such act occurred prior to abandonment by the one who lost the object. However, in the ordinary case of withdrawal, the act of withdrawal itself is sufficient to negate the positive command of “you shall give it back to him.”

44. There are only two situations where one need not retrieve the lost property of another. The first is where even if it were the finder's property, the finder himself would not retrieve it. For example, if one were an elderly person and the object was of the type that this person would not normally carry in public, one is not under an obligation to treat another's property better than one's own; Shulhan Arukh, Hoshen Mishpat 263:1Google Scholar. Even in that situation, Jewish law encourages one to retrieve the object or pay the person whose object one did not salvage. Id. The second case is when one lost an object of one's own, and in the process of search, one finds one's own lost object and the lost object of another, and one cannot take both objects, one may retrieve one's own object first. See Bassri, Dinnai Mammonut at 8:3 (cited in note 3).

45. Blau, , Pithei Hoshen at 1:3, n 8 (cited in note 3)Google Scholar; Kagan, Israel Meir, Mishnah Berurah at 443:12Google Scholar; Elijah, of Vilna, , Biur HaCra Hoshen Mishpat 348:22Google Scholar.

46. Shulhan Arukh, Hoshen Mishpat 259:1Google Scholar; Blau, , Pithei Hoshen at 1:5 (cited in note 3)Google Scholar.

47. Blau, , Pithei Hoshen at 2:11–14 (cited in note 3)Google Scholar; Childs, , Personal Property at § 337 pp 452–53 (cited in note 35)Google Scholar.

48. Bassri, , Dinnai Mammonut at 1:9 (cited in note 3)Google Scholar. One of the most interesting applications of the rules of returning lost property can be found in Joseph Babad, Minhat Hinuch, Commandment 339, who seems to maintain that the rules of returning lost property provide guidance about when one is obligated to save a person's spiritual well being. He maintains that this is an a forcia situation as compared to returning lost property.

49. Bava Meziah 31a.

50. Id. Shulhan Arukh, Hoshen Mishpat 267:1. Moses Maimonides, stating the rule allowing return without informing the owner, makes the following comment: “[h]e also has fulfilled the mitzvah;” Maimonides, , Mishnah Torah, Theft and Abandonment 11:16Google Scholar; Halevy, David, Turei Zahav (Taz), Shulhan Arukh, Hoshen Mishpat 267:1Google Scholar argues that Maimonides' choice of language indicates that return without informing the owner, although technically acceptable, is not preferred.

51. Childs, , Personal Property at § 333 (cited in note 35)Google Scholar.

52. See, for example, Bava Meziah 28a-b; Maimonides, , Mishnah Torah, Theft and Abandonment 13:1–9Google Scholar; Shulhan Arukh, Hoshen Mishpat 267:3Google Scholar; and commentaries; Blau, , Pithei Hoshen at 7:5–6 (cited in note 3)Google Scholar.

It seems logical that the precise procedure which one follows to notify members of society that one has found a lost object depends to a great extent on each particular society and its methods of communication. See Bassri, , Dinnai Mammonut at 3:1 n 1 (cited in note 3)Google Scholar; Shulhan Arukh, Hoshen Mishpat 267:3Google Scholar recounts that one announces in the synagogues. See Bassri, , Dinnai Mammonut at 3:1 n 1 (cited in note 3)Google Scholar and Blau, , Pithei Hoshen at 7:n 10 (cited in note 3)Google Scholar for a discussion of what to do in a society where many do not attend synagogue for worship; see also Schreiber, Moshe, Responsa Hatam Sofer, Hoshen Mishpat 122Google Scholar for a discussion of whether it is appropriate to advertise in a newspaper. In a society which the government has established a working process to return lost objects to their genuine owner, it would appear that it is appropriate to use that process, as that too is a form of announcement. So, too, Moses Isserless states (Shulhan Arukh, Hoshen Mishpat 259:7Google Scholar) that Jewish law accepts a secular determination that one must return a lost object to its owner, even if according to Jewish law it would be permissible to keep the object (such as after abandonment). It is unclear, however, if secular law can abrogate the obligation according to Jewish law in a situation where the secular law is more lenient than the Jewish law; Blau, , Pithei Hoshen at 2:53 (cited in note 3)Google Scholar.

53. Shulhan Arukh, Hoshen Mishpat 265:1Google Scholar; and Zalman, of Lydia, , Shulhan Arukh Harav, Hoshen Mishpat 265:33Google Scholar; and Blau, , Pithei Hoshen at 8:1–2 (cited in note 3)Google Scholar.

54. Childs, , Personal Property at § 333 (cited in note 35)Google Scholar.

55. Finding Lost Goods, 36A CIS § 7Google Scholar [hereinafter Goods, 36A CJS]; Zech v Accola, 253 Wis 80, 33 NW2d 232 (Wis 1948)Google Scholar; Manufacturers Safe Deposit Co. v Cohen, 193 Mise 900, 85 NYS2d 650 (NY Sup 1948) reversed on other groundsGoogle Scholar, In re Cohen's Estate, 98 NYS2d 197 (NYAD 1950)Google Scholar.

56. Laws of New York at § 252 (cited in note 23).

57. Id.

58. Laws of New York at § 253 (cited in note 23) describes in great detail the obligations of the police, which include “the police … shall accept and retain custody of the property” and “the police … shall give to the person depositing it a receipt” and “If at any time the police have reason to believe that a person has an interest in found property or in a found instrument in their possession and reason to know his whereabouts, they shall give notice of the finding and deposit and the location of the office to which the property or instrument is transmitted to such person.”

59. Maimonides, Moses, Mishnah Torah, Stolen or Abandoned Property 13:10Google Scholar.

60. Brown, , Personal Property at 24 (cited in note 7)Google Scholar.

61. Some authorities have stated that there is one mechanism to acquire such title. Lorberbaum, Jacob, Netivot Hamishpat 256:1 (cited in note 18)Google Scholar notes that according to Jewish law, property whose ownership cannot be factually determined does not transfer either through an intestacy inheritance or through a will; thus one could claim that after a period of time has elapsed such that the original owner who lost the property is certainly deceased, the possessor at that time would acquire the property; see also Blau, , Pithei Hoshen at 7 n 10 (cited in note 3)Google Scholar for a similar idea. It is interesting to note that a similar distinction has been advanced by American courts; see Burdick v Chesebrough, 94 AD 352, 88 NYS 13 (NYAD 1904)Google Scholar.

62. HaCohen, Shabtai ben Meir (Shakh), commenting on Shulhan Arukh, Hoshen Mishpat at 222:5; 267:17; 300:10Google Scholar; Lorberbaum, , Netivot Hamishpat 76:5 (cited in note 18)Google Scholar; Schreiber, Moshe, Hatam Sofer, Hoshen Mishpat 122Google Scholar. See also the discussion of this topic by Blau, , Pithei Hoshen at Laws of Loans 7:n 32, 36Google Scholar and Laws of Lost Property, 7:n 10 (cited in note 3). See also text accompanying notes 18 to 22.

63. This understanding of the “let the object reside” rule is limited to those situations where the possessor acquired possession properly; all agree that in situations where he did not acquire possession properly, he has no rights to use the object at all, and the object remains unowned.

64. The term “decisors” is the conventional translation used to denote those who decide Jewish law, in Hebrew poskim, literally “those who decide.” Feinstein, Moses, Iggerot Moshe Hoshen Mishpat 2:45(4)Google Scholar; Waldenburg, Eliezer, Tzitz Eliezer 12:88Google Scholar. This has also been phrased in a slightly different manner. Based on Tosafot, Bava Kama 66a, some wish to assert that the finder of the item owes an inchoate debt to the original owner, but that the item itself belongs to the finder after abandonment occurs. According to this approach, the finder would “purchase” the item from the original owner, and would be required to pay its value to the original owner should he come forward. See Auerbach, Hayyim, Divrai Mishpat 260:1 who discusses this issueGoogle Scholar; see also comments of Karlitz, Abraham Isaiah, Hazon Ish, Bava Kama 18:1Google Scholar who notes that this approach cannot be harmonized with Jewish law's obligation to pick the lost item up as a bailment for its original owner.

65. This seems to be the opinion of Karo and Isserless, both of whom indicate that this property is held by the court, and not by a person. See Shulhan Arukh 300:1Google Scholar and comments of Isser Zalmal Meltzer, Even Haazel, Laws of Claims and Claimants, appendix to section 76; Halberstam, Hayyim, Divrai Hayyim, Claim and Claimants, § 21Google Scholar.

66. Goods, 36A CJS at § 2 (cited in note 55)Google Scholar.

67. Id.

68. Id at § 3.

69. New York v Haws, 56 NY 175 (1874)Google Scholar; Goods, 36A CIS at § 3 (cited in note 55)Google Scholar.

70. Laws of New York at § 257 (cited in note 23).

71. Essentially the law requires that the police notify people who they reasonably think might own the property and that they notify the public of the loss so that the true finder can reclaim the property. After a period of time, which varies depending on the value of the object (less than $100, three months; less than $500, six months; less than $5,000, one year; more than $5,000, three years) the finder can claim title. Laws of New York at § 252 (cited in note 23).

72. Bava Meziah 93a; Maimonides, Moses, Mishnah Torah, Hiring [of Workers] 1:1–2Google Scholar.

73. Bava Meziah 29a; compare Bava Kama 56b.

74. A note on the titles of books in the Jewish legal tradition is needed, if for no other reason than to explain why the single most significant work of Jewish law written in the last 500 years, the Shulhan Arukh, should have a name which translates into English as “The Set Table.” Unlike the tradition of most Western law, in which the titles to scholarly publications reflect the topics of the works, the tradition in Jewish legal literature is that a title rarely names the relevant subject. Instead, the title usually consists either of a pun based on the title of an earlier work on which the current writing comments or of a literary phrase into which the authors' names have been worked (sometimes in reliance on literary license).

A few examples demonstrate such phenomenon. Rabbi Jacob ben Asher's classical treatise on Jewish law was entitled “The Four Pillars” (Arba Turim), because it classified all of Jewish law into one of four areas (see note 1 for more on this). A major commentary on this work that, to a great extent, supersedes the work itself is called “The House of Joseph” (Beit Yosef), since it was written by Rabbi Joseph Karo. Once Karo's commentary was completed, one could hardly see “The Four Pillars” it was built on. A reply commentary by Rabbi Joel Sirkes, designed to defend “The Four Pillars” from Karo's criticisms is called “The New House” (Bayit Hadash). Sirkes proposed his work (for example, the new house) as a replacement for Karo's prior house.

When Rabbi Karo wrote his own treatise on Jewish law, he called it “The Set Table” (Shulhan Arukh) which was based on (located in) “The House of Joseph.” Rabbi Isserless' glosses on “The Set Table”—which were really intended vastly to expand “The Set Table”—are called “The Tablecloth” because no matter how nice the table is, once the tablecloth is on it, one hardly notices the table. Rabbi David Halevi's commentary on the Shulhan Arukh was named the “Golden Pillars” (Jurat Zahav) denoting an embellishment on the “legs” of the “Set Table.” This type of humorous interaction continues to this day in terms of titles of commentaries on the classical Jewish law work, the Shulhan Arukh.

Additionally, there are book titles that are mixed literary puns and biblical verses. For example, Rabbi Shabtai ben Meir HaCohen wrote a very sharp critique on the above-mentioned Tumi Zahav (“Golden Pillars”), which he entitled Nekudat Hakesef “Spots of Silver,” which is a veiled misquote of the verse in Song of Songs 1:11Google Scholar, which states, “we will add bands of gold to your spots of silver” (turai zahav al nekudat hakesef, with the word turia “misspelled.”) Thus, HaCohen's work is really “The Silver Spots on the Golden Pillars,” with the understanding that it is the silver that appears majestic when placed against an all gold background.

Other works follow the model of incorporating the name of the scholar into the work. For example, the above mentioned Rabbi Shabtai ben Meir HaCohen's commentary on the Shulhan Arukh itself is entitled Seftai Kohen “the words of the Kohen,” (a literary embellishment of “Shabtai HaCohen,” the author's name). Rabbi Moses Feinstein's collection of responsa are called Iggerot Moshe, “Letters from Moses.” To make life even more complex, the rabbinic tradition frequently shortened names to acronyms, making their true origins even more obscure. Thus, the work named Seftai Cohen is actually referred to in the Jewish law literature by its acronym, Shakh, confusing its origins even further. Indeed, most acronyms begin with the same letter—R—as most authorities were known by their titled name, which began with the word “rabbi.”

Of course, a few leading works of Jewish law are entitled in a manner that informs the reader of their content. Thus, the Fourteenth Century Spanish sage, Nahmanides (Ramban) wrote a work on issues in causation entitled “Indirect Causation in [Jewishj Tort Law: (Dina Degarmei)” and the modern Jewish law scholar Eliav Schochatman's classical work on civil procedure in Jewish law is named Seder Hadin, (“Arranging the Case,”) a modern Hebrew synonym for civil procedure.

75. Maimonides, Moses, Mishnah Torah, Theft and Abandonment 13:10Google Scholar; Shulhan Arukh, Hoshen Mishpat 267:16Google Scholar.

76. Shulhan Arukh, Hoshen Mishpat 267:16Google Scholar.

77. Both Joshua Falk-Cohen and Shabtai ben Meir HaCohen label this dispute as a case of legal doubt; see their comments on id.

78. For a detailed discussion of how and why Jewish law resolves certain financial disputes in this manner, see Levfar, Oded Lipa, Mishpetei ha-Migo (Benei Brak, 2d ed, 1993)Google Scholar.

79. Bassri, , Dinnai Mammonut 4:1 (cited in note 3)Google Scholar.

80. Bava Kama 56b.

81. Obviously the mere fact that the object is in the finder's possession does not constitute involvement in a mitzvah (esek bemitzvah). The bailee must actually be involved in preserving the object. See Tosafot, , Bava Kama 56bGoogle Scholar.

82. Providing charity for a person's daily food needs is mandatory in Jewish law; see Shulhan Arukh, Yoreh Deah 250:1Google Scholar.

83. This distant definition of benefit is not foreign to American law. Frequently, the law defines even a very tangential theoretical benefit as sufficient to be classified as a benefit as a matter of law. See, for example, Donovan v Bierwirth, 680 F2d 263 (2nd Cir 1982)Google Scholar. (For the purposes of ERISA law, a benefit encompasses even situations where there is no apparent real financial benefit).

84. Goods, 36A CIS at § 7(b) (cited in note 55) (and particularly notes 79, 80, 80.5).

85. See, for example, Brown, , Personal Property at 30–31 (cited in note 7)Google Scholar; Goods, 36A CJS at § 7(b) (cited in note 55).

86. The New York State recodification of the law made this issue moot, as the finder does not hold the item at all; that duty now falls on the police. The police may not use the property and have no ownership interest in it although it is unclear what type of bailment (if any) is created; see 24 Op State Compt 445 (1968)Google Scholar (a town may not use valuable lost and found property in its recreation program) and Fuentes v Wendt, 106 Misc 1030, 436 NYS2d 801 (NY Sup 1981)Google Scholar (finder of bonds was entitled to award of $75,000, which was value of bonds, and entitled to interest commencing from date the police department had improperly refused to deliver bonds to finder).

87. Tosafot, , Bava Meziah 31bGoogle Scholar; Shulhan Arukh, Hoshen Mishpat 265:1Google Scholar.

88. Brown, , Personal Property at 31 (cited in note 7)Google Scholar; Goods, 36A CJS at § 4 (cited in note 55)Google Scholar; Automobile Ins. Co. v Kirby, 25 Ala App 245, 145 So 123 (1932)Google Scholar. At the common law, if the owner has offered a reward, the return of the lost property by the finder constitutes the performance of a [unilateral] contract and enables him to recover the amount stipulated. This is accepted as well in Jewish law, although it is perhaps limited only to the area of lost property; Falk-Cohen, Joshua, Sefer Meirat Ainayim Shulhan Arukh, Hoshen Mishpat 265:6–7Google Scholar.

89. Maimonides, Moses, Mishnah Torah, Theft and Abandonment 12:4Google Scholar; Shulhan Arukh, Hoshen Mishpat 264:3–5Google Scholar; Goods, 36A CJS at § 4 (cited in note 55)Google Scholar.

90. Brown, , Personal Property at 31 (cited in note 7)Google Scholar. The leading case is Reeder v Anderson's Adm'rs 4 Dana (Ky) 193 (1836)Google Scholar which states:

91. Id. Of course, it would not be reasonable if the loss exceeds the value of the object.

92. As explained above, Jewish law would not require a worker to take such time off; if he did, compensation would be appropriate.

93. Bava Meziah 30b.

94. Id at 31b.

95. Maimonides, , Mishnah Torah, Theft and Abandonment 12:4Google Scholar.

96. Shulhan Arukh, Hoshen Mishpat 265:1Google Scholar.

97. Isserless, Moses(Rama), Shulhan Arukh, Hoshen Mishpat 264:5Google Scholar.

98. See comments of Jacob ben Asher (Tur), Moses Isserless (Rama), and Shabtai ben Meir (Shakh) all commenting on Shulhan Arukh, Hoshen Mishpat 264:4Google Scholar and Blau, , Pithei Hoshen at 8:n 10 (cited in note 3)Google Scholar.

99. New York law allows payment of expenses to the state for state incurred expenses. However, unlike either the common law or Jewish law, such expenses were, in effect, paid by the finder since it was the finder in whom title vested. New York law allowed only expense of reimbursement, and only of expenses directly relating to the item itself; see Laws of New York at § 253 (cited in note 23) (“expenses of taking of custody, transportation, storage and appraisal, any special expense incurred in giving notice, and any other special expense attributable to administration of this article with respect to the particular property”). However, the finder was entitled to no expense reimbursement should the true owner come forward.

100. See Sections IV-V.

101. See material discussed in text accompanying notes 102 to 112.

102. As explained, in the text accompanying note 104, this second category is called simanim in Hebrew, and it literally means signals or marks.

103. Id and Bava Meziah 27b. According to those authorities who rule simanim (marks or symbols) to be a biblically sufficient form of identification, this requirement is traced to the words “and so shalt thou do with his garment”; just as the garment is unique in that it contains marks or symbols, so too any lost object which may be identified through marks or symbols must be returned. If symbols without eyewitness correlation are merely rabbinic, the biblical specification of “garment” has reference to claimants who may claim the article not by virtue of identification furnished by symbols or marks, but through the testimony of witnesses, which certainly suffices.

104. Furthermore, as explained in text accompanying note 110, Jewish law provided other means of isolating the potential thief. Practically, it is of no consequence in the ordinary law of lost property why one concludes the symbols or marks are efficacious. In either event, one claiming to be the rightful owner can recover from the finder by furnishing adequate symbols or marks. The significance of this discussion is of practical relevance in connection with other areas of Jewish law—for example, the court's decision allowing a woman whose husband has disappeared the right to remarry on the ground that a dead body has been identified as that of her husband.

105. Rabbi Solomon ben Meir (Rashba) and Rabbenu Nissim (Ran) on Bava Meziah 27b; Vidal, of Tolosa, , Maggid Mishnah, Theft and Abandonment 13:3Google Scholar; Shabtai ben Meir (Shakh) commenting on Shulhan Arukh, Hoshen Mishpat 267:2Google Scholar.

106. The different categories of marks or symbols is fully explained in Bassri, , Dinnai Mammonut 3:2 (cited in note 3)Google Scholar.

107. Such symbols will definitely suffice to recover lost property and therefore preclude any presumption of abandonment.

108. For a listing of various types of marks, see Blau, , Pithei Hoshen at 5:1–15 (cited in note 3)Google Scholar. It is clear, however, that a collection of insignificant symbols, can, in composite, become significant. Thus, one may not return a lost red shirt to a person who states that he, too, lost a red shirt, since there are many red shirts in the world; so too, one cannot return a lost shirt which is a size 15 to a person who states he lost a size 15 shirt. The same is true about sleeve size. One could, however, return a shirt to a person who identified that he lost a size 15 red shirt with a 28 inch sleeve if such garments are uncommon. Many of these determinations are contextual. See, for example, Blau, , Pithei Hoshen at 5:1 (cited in note 3)Google Scholar (“any item which has a mark that makes the item different from other similar items such that the loser of the item can recognize that it is his… “).

Jewish law also recognized that—at least in theory—even an item without clear marks can be returned to an owner who claims them if he says that he recognizes the item as his, if the person is a recognized Torah scholar known not to speak in haste. Shulhan Arukh, Hoshen Mishpat 262:21 (cited in note 11)Google Scholar. There is a dispute between David Halevy (Taz) and Joshua Falk-Cohen (Sema) about whether any post-talmudic Torah scholars fall within this classification; compare their comments on id.

109. Shulhan Arukh, Hoshen Mishpat 267:4Google Scholar.

110. Shulhan Arukh, Hoshen Mishpat 267:6Google Scholar and comments of Joshua Falk-Cohen (Sema) on id. Those authorities who rule that symbols and signs work on a biblical level, rule that one returns lost items even to a thief when he provides true symbols. Others rule that a thief needs to present witnesses to get back his own lost property; see Blau, , Pithei Hoshen at 7:10 (cited in note 3)Google Scholar.

111. Dougherty v Norlin, 147 Kan 565, 78 P2d 65, 66 (1938); Wood v Pierson, 45 Mich 313, 7 NW 888 (Mich 1881); Goods, 36A CJS at § 8A (cited in note 55).

112. Fisher v Klingenberger 576 NYS2d 476, 478 (NY Civ Ct, 1991). Defendant in this case returned the object to a person who provided clear symbols (according to Jewish Law) but yet was actually a thief aware of the find. The court recounted:

These facts explain the Sages' requirement that the person identify himself as an honorable person before claiming lost goods as his own, even if a symbol is provided.

113. Literally, avudah mikkol adam, “lost to the whole world.” Bava Meziah 22b. See Rabbi Solomon Yitzhaki (Rashi), Bava Kama 66a, who asserts that this case, a Tannaitic interpretation of Deut 22:13Google Scholar is the Biblical source for the principle of abandonment in lost property. For a longer discussion of this issue, see Bleich, J. David, The Controversy Concerning the Sotheby Sale, 8 Cardozo L Rev 91 (1986)Google Scholar.

114. Shulhan Arukh, Hoshen Mishpat 259:7Google Scholar; Joshua Falk-Cohen (Sema) commenting on id.

115. Maimonides, , Mishnah Torah, Theft and Abandonment 11:10Google Scholar.

116. Shulhan Arukh, Hoshen Mishpat 259:7Google Scholar.

117. Bava Meziah 24b; Shulhan Arukh, Hoshen Mishpat 259:7Google Scholar.

118. Commentary of Asher be Yeheil on Bava Meziah 24b.

119. Falk-Cohen, Joshua(Sema), Shulhan Arukh, Hoshen Mishpat 259:7Google Scholar.

120. Literally, “zuto shel yam,” the classic talmudic case of destruction.

121. Childs, , Personal Property at § 335 (cited in note 35)Google Scholar.

122. Brown, , Personal Property at 31 (cited in note 7)Google Scholar.

123. Laws of New York at § 251 (cited in note 23) (“The term ‘property’ as used in this article means money, instruments payable, drawn or issued to bearer or to cash, goods, chattels, and tangible personal property other than … wrecks governed by the provisions of the navigation law … “).

124. Davidson v State, 514 NYS2d 615, 1987 Am Marit Cases 2483 (Ct CI 1987) (state brought action to determine ownership of two 1,000-pound bronze cannons cast in 1748. The cannons were discovered by skin divers in a lake. Court awarded skin divers $34,000 for salvage of cannons).

125. Bava Meziah 24b; Maimonides, , Mishnah Torah, Theft and Abandonment 11:7Google Scholar.

126. In Hebrew, lifnim me-shurat hadin.

127. Hillel, Mordecai ben on Bava Meziah 257Google Scholar; Meir MaChoen of Rothenberg, Hagaot Mamaniot on Maimonides, , Theft and Abandonment 11:7Google Scholar; Shabtai ben Meir (Shakh), commenting on Shulhan Arukh, Hoshen Mishpat 259:3Google Scholar.

128. Bava Meziah 30b.

129. All three legal systems provide very similar or identical answers to each other in two of the thirteen questions posed, for an overlap of 16%.