point — Gury-Ballerini, Compendium of Moral Theology (8th ed., 1884)
Point II. On Finding
- Goods which can be found are distinguished as of four kinds, namely treasures, things recently lost, abandoned goods, and vacant goods.
A treasure, under Roman Law, is a sum of hidden money, of which no memory exists. - Yet by common interpretation, under the name treasure there also come other things estimable by price which are found buried. - But under French Law a treasure is any hidden or buried thing whatever, which no one can prove to be his, and which is found by chance.
Those things are said to be lost which are involuntarily left behind by the owner. They differ from treasure because they are not hidden or buried, but ordinarily have been lost recently.
Abandoned goods are those which the owner has cast away with the intention of no longer possessing them. But vacant goods are said to be those which are left by one dying without testament and heirs.
- Principles. I. A treasure found by the very owner of the estate yields wholly to the finder. But a treasure found in the estate of another, by positive right, whatever may be true by natural right, must be divided equally between the proprietor of the estate and the finder, if it has been found by chance; but if by industry, and without the knowledge of the owner of the estate, and therefore without his consent, it yields wholly to him, yet after the sentence of a judge 1. - Thus Roman and French Law. - But a treasure found in a public place must be divided between the finder and the treasury, if the place is profane; and between the finder and the fabric or Prelate, if the place is held as sacred. Thus by Roman Law. Thus also French Law seems to suppose, because a public place in reality belongs to some owner 2, namely either to the Republic, or to the municipality, or to the Church. - Gousset. Code commenté, art. 710.
1 These words of the Author, "after the sentence of a judge," you should not take in such a way as though, apart from a sentence of this sort, nothing is owed to the owner of the estate. For before every sentence of a judge, by force of the laws, the finder is bound in conscience to give half the part to the owner of the estate. Therefore the sentence of the judge can be awaited as to the other part, which yields to the finder when he finds the treasure by chance; for since the finder is deprived of this part as a penalty for a crime, and therefore that law seems penal, for that reason this does not seem to oblige before the condemnatory sentence of a judge, as the Doctors commonly hold.
2 It does not seem that one should insist on this reason, but rather on the decrees of the laws which are found in the Institutes, De rer. divis., § Thesaurus. The reason is that if the republic, for example, performed the role of owner, the common laws concerning the part which belongs to the owner of the estate for the diverse cases would have to be observed, and thus, for example, the whole treasure would have to yield to the treasury if it had been sought by industry and without the knowledge of the magistrates. But the law, with no distinction of these cases having been made, attributes half the part without exception to the finder. Thus Cardinal De Lugo (De Iust., disp. 6, n. 115), where, after he cited from the Institutes of Justinian (De rer. divis., § Thesaur., 39) these words: "If someone has found a treasure in a fiscal, or public, or civic place, half is his and half belongs to the treasury or the city," he deservedly adds: "Which is understood whether it is found by chance or by industry; for in this case no difference is made." But the other laws which Molina opposes against this opinion (De Iust. et Iur., tract. 2, disp. 56, n. 2) rather confirm it. For law unic. C. De Thesauris, and law Si is qui 63, ff. De adquirendo rerum dominio, have nothing more than the text cited from the Institutes. Therefore, just as Lugo reasons concerning this, it will be licit for anyone to reason concerning those. Something is added to this disposition of law in l. Non intelligitur 3, § Deferre 12, ff. De Iure fisci, in these words: "But he who, when he has found a treasure in a place of the treasury, and has suppressed the part pertaining to the treasury, is compelled to pay the whole together with as much again." But these things openly act against Molina's opinion. For from the rule of attributing only half the part to the treasury there is excepted the single crime of a suppressed part pertaining to the treasury. Therefore from the very well-known saying, "The exception confirms the rule," etc., Lugo's opinion is confirmed, that as to treasures found in a public place it makes no difference whether they are found by chance or were sought by industry without the knowledge of the magistrates.
II. Recently lost things must be returned to the owner, if he is found, because the fact of loss is not a title for despoiling the owner of his own thing. Besides, according to the axiom received by all, for retaining, intention alone suffices; but for occupying there is required real apprehension with a legitimate intention of having; but no one can have a legitimate intention of taking or retaining for himself a thing which he knows pertains to another known owner; therefore he must restore it to him. Hence the saying: "The thing cries to its owner" 3.
3 Concerning a thing lost by someone, whether known or unknown, which perhaps you find, there can be a multiple obligation.
For 1. charity can oblige you to take up care of the thing, if you foresee that otherwise the thing will in some way perish for the owner.
2. Likewise charity will require that if at any time it is established to you concerning a thing either found by another or lost, you disclose this to others, when you prudently judge that this will be useful so that the thing may return into the hands of the owner.
3. If you yourself take a thing perhaps found, by justice you are bound first to exercise diligent care of the thing and to guard it. The measure of this obligation indeed is easy to draw from those things which the Doctors commonly hand down concerning that species of quasi-contract which is customarily called management of affairs. On this matter see Molina, De Iust., tom. 2, disp. 553, 554.
4. Likewise, if the owner of the thing is unknown to you, by justice you are bound not to conceal the thing; you will violate this obligation not only if you carefully hide the thing so that the owner cannot learn that the thing lies with you, but also if you do not use suitable means so that notice of the thing existing with you may come to the owner.
III. Abandoned and vacant goods by natural right become the property of the first occupant. The reason is that they no longer have any owner; therefore they yield to the first occupant, not otherwise than those things which have never had an owner. - Thus very commonly the theologians. - But by positive right they are commonly attributed to the Republic (C.C. 539). Yet by custom this seems to have to be restricted to immovable goods alone, at least before the sentence of a judge. - Carrière, n. 285 and 343, after several jurists.
- Questions. Q. 1. Whether one who suspects that there is treasure in a field, and buys it at the common price, can retain wholly for himself the treasure found there?
Resp. Affirmatively. Because that treasure, since it is not part of the estate and lies hidden, does not increase its value. - St. Thom., 2. 2, q. 66, art. 5. - Lugo, d. 16, n. 126. - Billuart, etc., against others.
Q. 2. Whether a workman who, by laboring in some house, finds in some corner of a wall or in an old chest a sum of money, can retain part of it for himself?
Resp. Distinguish. If there are traces from which it is judged that this money belongs to some person or family, the whole must be returned to this one; because this money is to be reckoned as a good recently lost. Otherwise he can retain half the part for himself, because then it seems to have the character of treasure.
- Q. 3. Whether the finder of a lost thing can retain it for himself if, sufficient diligence having been used, the owner does not appear, nor is there any hope of finding him?
Resp. The first opinion denies, and judges that the thing found must then be spent on the poor, or on other pious uses. The reason is that the owner, by the fact of loss alone, has not lost his right in his own thing; but if he remains owner, that thing must be spent in the way in which he is presumed to wish; moreover this will of his is to be presumed, that the thing be spent for his utility in the better way, and consequently be expended on pious works. - Billuart, diss. 4, art. 2, § 6. - Collet. - Habert, etc. 4.
4 To this opinion it is wholly owing that in the past century in certain dioceses it was provided by law that if anyone found a thing, at least one which exceeded the value of 12 francs, he should denounce this to the Bishop, so that he might decide concerning the use of that thing itself; as though, namely, it were certain and fixed that a thing thus found belonged by open and notorious right to goods destined for pious works, whose administration belongs to the solicitude and authority of the Bishop. But besides the fact that St. Alphonsus (lib. 3, n. 603) does not even hold that opinion as sufficiently probable, for he calls the opposite truer, Vasquez (De Restit., c. 5, § 4, dub. 1, n. 12) does not hesitate to affirm that the custom by which the Bishop reserves to himself the determining of the mode by which restitution must be made through pious uses is irrational, even when it is a matter of true uncertain debts; but a fortiori this would have to be said of our case, when it is more probable that no debt of restoring exists.
The second opinion, more probable, affirms. The reason is that that thing must then be held as abandoned. For in the hypothesis, although the owner does not dismiss or abdicate dominion properly so called in his own thing, nevertheless he has wholly lost the faculty of using his thing and of disposing of it; and therefore the thing ceases to be in his dominion. Therefore the will of the prior owner is not to be sought, since, having morally lost dominion, he can dispose nothing concerning it. Therefore that thing is morally to be held as abandoned; therefore it can become the property of the first occupant. - Thus St. Lig., n. 605, where he says that this is the truer opinion 5. - Lugo, disp. 6, n. 140. - Lacroix, n. 80. - Elbel, n. 171, etc.
5 St. Alphonsus in reality does not hold this opinion altogether, but a certain third
one, which, while it partly accedes to the first and partly to the second, does not seem sufficiently consistent with itself.
- Q. 4. What must be done if at last the owner appears, when the thing has been spent or consumed for pious uses?
Resp. 1. If it was spent or consumed for pious uses when the owner was judged now no longer able to be found, no restitution is to be made, because the thing could rightly be held as abandoned, and therefore it was legitimately acquired by the first occupant.
Resp. 2. If it was spent or consumed for pious uses while hope still shone forth of finding the owner, then the damage must be repaired. The reason is that in the case either the thing was to be preserved, or at least its price 6, since dominion still remained with the owner. - St. Lig., n. 590, 603; Hom. apost., n. 69. - See Casus, n. 516 and following.
6 The difficulty is how long the thing or its price ought to be preserved, as still pertaining to its former owner; and indeed not even those things which St. Alphonsus discusses after Cardinal De Lugo solve that difficulty. On this matter this much is sufficiently manifest: a prudent judgment concerning whether the hope of finding the owner of the found thing is to be cast aside or not cast aside depends very much on circumstances; and therefore the measure of time varies according to their variety.
But two things seem not to be omitted. One is that the norm seems a little too severe which certain words of Cardinal De Lugo seem to insinuate (De Iust., disp. 6, n. 139), as though it must be waited until there is present some possibility, not indeed probability, of finding the owner, however fortuitous, so that the hope is cast aside only when the owner could be found only by a miracle. The reason is that a prudent norm of human actions is accustomed and ought to be taken from things which commonly happen, not from fortuitous and extraordinary things.
The other is that some norm is supplied by certain civil codes, which decree generally that whenever the diligence prescribed has been used for seeking the owner of the thing, and he does not appear after two years, the thing yields to the finder. For even if that law is not in force somewhere, nevertheless, since it can be held as a dictate of prudence, one will rightly infer that, after two years have elapsed after suitable diligences have been used, the finder can dispose of the thing as his own in such a way that, whether he has consumed it or has prescribed by possessing it as his own, he is held to nothing, even if perhaps the owner afterward appears.