Case XXVIII: What Are the Obligations of a Person Who Has Disposed of an Article That He Found Without Making Any Attempt to Discover the Owner?

On the occasion of a numerous pilgrimage Gregory finds a bank-note near the church. The note has been trodden in the mud and is in a bad state, but not actually destroyed. He cleans it carefully and sees that it is a bill of ten dollars. Believing that it would be quite impossible to discover the owner, as an enormous crowd has assembled from all parts, he gives it to a ragged beggar near the church, thinking that in this way he is doing a good work, both on his own behalf and on that of the unknown owner. Upon returning to his home he hears that his neighbor's wife has lost a ten-dollar bill, but she does not know whether she dropped it on her way to church or whether some one in the crowd picked her pocket. Gregory says nothing about having found a bill, but hurries back to the church in hopes of meeting the beggar to whom he has given it, but though he does his best and makes many inquiries, he fails to discover him. Not being sure whether he is bound to compensate his neighbor's wife, he asks advice of his confessor. Quid ad rem?

I. If any one chances to find a thing that another person has lost, he should be guided by the following principles:

(a) The finder is not legally bound to pick up and carry away the thing found; without breaking any law he may leave it alone, even at the risk of its being destroyed. Charity, however, may constrain him to take it away with him if he thinks that otherwise the owner will never recover possession of it.

(b) If the finder carries away what he has found, he incurs a legal obligation to take care of it and to preserve it. Moralists are unanimous in thinking that he makes a kind of contract—negotiorum gestio—with the owner, and is bound by the obligations that such a contract would naturally lay upon him.

(c) One of these obligations is that he must not keep the fact of his discovery secret, but must employ all suitable means of finding the owner, so that the latter may resume possession of his property. These means must be proportioned to the value of the thing found, and local customs and regulations must be observed. (Cf. Carriere, de objecto justitiae, pars I. cap. 4, art. 1, § 5).

II. Bearing these principles in mind, we may ask what opinion we should form of Gregory's action, and whether he has incurred any obligation to compensate his neighbor's wife for her loss.

(a) On finding the money he considered whether he might find the owner, but decided that this was morally impossible, owing to the great crowd of pilgrims. He had no wish to keep the money for himself, so gave it to a poor man, thinking that he was thus doing a good action.

Under the existing circumstances, might he not reasonably have hoped to succeed in restoring what he had found to its owner? Pruner's Moraltheologie (Part 3, div. 3, 2, § 4, II.) states that the hope of finding the owner is least in the case of articles bearing no distinctive marks, such as coins without a purse, paper money without a pocketbook, etc., especially if the circumstances of time and place afford no trace of the person who has lost them. All the factors mentioned by Pruner seem to be present in the case under consideration. The note found by Gregory bore no mark showing to whom it belonged; thousands of people from various localities had passed over the spot where it lay, and if he had not happened to notice it and pick it up, it might have been trampled to pieces and have lost all value; possibly it had been for some considerable time lying in the dirt. All these facts might certainly lead Gregory to believe that it was useless to try to discover the owner.

(b) One point still remains to be discussed before a final decision can be given. It concerns the conscientious application of all the means of finding the owner which the value of the note furnished, and which a man's intelligence, the law, and local customs might suggest.

In spite of the fact that the circumstances mentioned above justified Gregory in thinking that it was useless to try to discover the owner, it was nevertheless his duty, considering the value of the note, to do what he could to find out to whom the money belonged before disposing of it by gift. This is an obligation of justice, laid upon the finder by the quasi-contract into which he enters by the appropriation of the thing found. Gregory could have complied with this obligation without any great difficulty; he might have put an advertisement in the newspaper, or have given notice to the police or the clergy at the place of pilgrimage. If he had done this, in all probability the woman would have recovered her money.

Is Gregory bound to make good her loss because he neglected this duty? His actions show that his failure to take any steps to find the owner of the note was not due to any malice, i. e., sine dolo et culpa lata peccaminosa; and for this reason he is free from any obligation to repay the money. There was no dolus in what he did, for in neglecting to make inquiries he had no wish to injure the owner by wilfully defrauding him. He had not therefore committed any culpa lata of a kind that would require him to make compensation. There was no punishable neglect in his omission to use due care in finding the owner; assuming that under the existing circumstances it would be impossible to discover to whom the note belonged, he did not even think of its being his duty to make inquiries. We have therefore here a casus oblivionis vel inadvertentiae, "In which case, for damage inflicted upon another’s property—Lugo, On Justice, Disputation 8, numbers 100–113—without theological fault, at least grave fault, no obligation of restitution exists in the forum of conscience before the sentence of a judge."

Culpa lata in contracts consists in failing to use ordinary care, which any other reasonable person would take of a thing, or in dealing with the affairs of others less carefully than with one's own. According to the divine law, a person is answerable for loss caused by culpa lata only if the action or the neglect indirectly causing the loss was rendered really sinful by the fact that the person in question foresaw the consequences of what he was doing, and nevertheless failed to choose another course of action. If, however, the culpa lata was a simple culpa juridica, to which no blame is attached in foro interno, i. e., in one's conscience, there is no duty of indemnification to be considered. Cf. Pruner, Moraltheologie, Part 3, div. 3, 3, § 7, a and b; Gury de Justitia, no. 661, qu. 1; St. Liguori de Justitia, no. 554.

From what has been said, it appears that, on the one hand, Gregory had good reasons for assuming that it would be impossible to discover the owner of the money under existing circumstances, but that, on the other hand, he neglected bona fide—citra culpam theologicam—the duty of advertising what he had found, and making inquiries about the owner, since it did not occur to him to do so.

Consequently he is not bound to pay any compensation. Only post factum did he become aware that he ought not to have given the money away so promptly. He did his best to repair his mistake by going at once to look for the beggar, intending to give him some smaller sum in return for the note if he could recover it. He did not succeed in his attempt, and he is not bound to do anything further.—Dr. Adam Wiehe.