§ 1. Principles Of Natural Law

1. From strict justice a private man is not held to carry away with him and preserve another's thing perhaps found; nevertheless ordinarily there is present an obligation of charity, at least light.

That an obligation of justice is not present is almost clear of itself; for a private man, apart from a special contract, is not held from justice to care for another's thing. But that an obligation of charity is present is also clear, because for the most part there exists some hope of restoring the lost thing to the legitimate owner and of forestalling his damage. But from charity we are obliged to ward off damage from our neighbor, if that can easily be done. This obligation indeed for the most part is only light, unless there is question of forestalling truly grave damage.

2. He who has taken up a found thing is held to guard it diligently and to inquire for the owner of the thing. This obligation arises from justice, so that the violation of it induces an obligation of restitution.

The reason is that such taking up is nothing other than management of affairs freely accepted, which carries with it the obligation of diligently guarding the thing taken up for the legitimate owner. Nevertheless both the guardianship of the thing and the inquiry for the legitimate owner are done at the expense of the owner and not of the finder, because the lost thing remains under the dominion of him who involuntarily lost it, so long as he has a reasonable hope of recovering it.

The finder is held to seek the unknown owner by suitable means; and if he does not do this, or, what is much worse, if he hides the found thing, he sins against justice and is held to restitution, because culpably he brings it about that the owner cannot recover his own thing. But by what modes in individual cases the inquiry for the owner must be made natural law does not determine, but it is customarily determined by civil law; nevertheless these determinations sometimes are directive rather than preceptive, and therefore they do not strictly oblige in conscience. Certainly he who uses the means prescribed by civil laws has sufficiently fulfilled this obligation of seeking the owner of the found thing.

If the owner of the thing has become known, the finder is held to restore it. Hence that saying of St. Augustine: "If you found something and did not return it, you stole it."³² But the finder can demand not only compensation of all expenses made in guardianship and investigation, but also a reward.³³ For the management of affairs done by the finder is not gratuitous, especially if this has also been established by civil law.

³² It is found in the Decree of Gratian, C. 14, q. 5, c. 6.

³³ Commonly Finderlohn, finder's reward.

49. 3. If, after diligent inquiry has been used, there is no longer a founded hope that the owner of the thing will be discovered, the finder can retain the thing for himself; nevertheless more laudably he distributes it to pious uses or to the poor.

Rightly and clearly Wigandt, O. Pr., writes:³⁴ "The most salutary counsel is this, namely, to expend those found goods for the poor or for public and pious uses, especially if the finder is not in need. But if he himself is in need, he can apply the whole or a part to himself for his necessity; but he will act best if for this he uses the counsel of a prelate or confessor." This same opinion is held by very many ancient and modern authors, while nevertheless very many others contradict it, for example Castropalao, Lessius, Cajetan, Billuart, etc., who wish found goods necessarily to be expended on pious causes or on the poor, if the owner cannot be found.

The first opinion is held by St. Thomas, who, distinguishing between treasure and other found things, says concerning these latter: "But certain found things were recently among someone's goods (i.e., a short time before they had a legitimate owner). And then if someone takes them not with the intention of retaining them, but with the intention of restoring them to the owner, who does not hold them as abandoned, he does not commit theft; and likewise, if they are held as abandoned, and the finder believes this, although he retains them for himself, he does not commit theft."³⁵ Therefore according to the Angelic Doctor the finder does not commit theft, nor consequently sin against justice, who retains found things which the owner holds as abandoned. Now, if after diligent inquiry has been made the owner cannot be found, then he is deservedly judged to hold his things as abandoned. St. Alphonsus teaches almost the same thing:³⁶ "When a thing, with the circumstances of length of time or distance of place considered, or because the thing can no longer be recognized by the owner as his own, as happens in ordinary coins, does not seem able to return to the owner; then it becomes a thing belonging to no one, and therefore is acquired by the first occupant, who is not held to give it according to the will of the prior owner, since through the impossibility of recovering it he has altogether lost dominion over it."

The second opinion can be proved neither by any text of law nor by any convincing reason.³⁷ For the principal reason brought forward does not prove the opinion of the adversaries. For they say that found goods must be expended according to the presumed will of the legitimate owner. But the presumed will of the owner regularly is that they be expended for uses useful to himself or to his own, or at least to the republic, and therefore for the relief of the poor, for Masses, or for other pious uses. I say: this reason does not prove the point, for it is by no means established that this will is regularly to be presumed; on the contrary, the will of the prior possessor is to be presumed that his goods remain in such a state in which he can recover them more easily. But the owner can recover them more easily if they remain with the finder, because thus they can be better recognized and preserved, than if they are consumed in pious causes or by the poor. Moreover, it does not seem that much care is to be given to the presumed will of the prior owner, because otherwise this will would also have to be attended to in the occupation of treasure; yet no one will say this. Some weight is brought to the stricter opinion by the surely very great authority of the Roman Catechism, which seems to favor it, saying:³⁸ "Therefore those also are thieves who buy things taken away by theft, or who in any way retain things found, occupied, or taken away; for St. Augustine says: 'If you found something and did not return it, you stole it.'³⁹ But if the owner of the things can in no way be found, those goods must be conferred for the uses of the poor." But it seems not so clear whether the final phrase is to be referred to things taken away by theft only, or to all things, whether taken away by theft, found, occupied, or taken away. This latter does not seem likely, for at least things legitimately occupied no one is held to confer upon the poor. Therefore the authority of the Roman Catechism either proves too much or proves nothing for the opinion of the adversaries. Consequently in practice the opinion permitting the finder to retain found goods for himself is safe, provided that he has used sufficient diligence in finding the legitimate owner. Civil codes do not speak of an obligation of expending found things for the uses of the poor, but otherwise dispose of them. Therefore even from civil codes an argument cannot be found for the stricter opinion.

4. Although the finder can retain the found thing for himself after prudent hope of finding the true owner has ceased, nevertheless finding alone does not seem to be a sufficient title of property, but it is necessary that the title of prescription be added according to the laws of each region.⁴⁰

There are several authors, for example Noldin⁴¹ and Lehmkuhl,⁴² who teach that the finder acquires dominion of the found thing by occupation and not by prescription. But in practice this doctrine can suffer difficulties. Let there be an example: Peter found a purse in a public street, in which there is the sum of 100 francs; he seeks the proprietor in the best way he can, but in vain. Then he consumes the 100 francs on a pleasure trip. After three months the true owner of the lost purse unexpectedly appears, and Peter is compelled by the judge to return the purse with 100 francs. If Peter acquired the purse and the 100 francs by true occupation as soon as every prudent hope of finding the owner ceased, he is not held to return the found thing, and if nevertheless he is compelled by the judge to return it, he can secretly compensate himself; which, however, hardly anyone would say in the present case. Therefore finding itself does not seem to be a sufficient title of dominion, but it is necessary that the title of legal prescription be added, concerning which below, n. 57 sqq.

³⁴ Tribunal confessar. tr. 8, exam. 3.

³⁵ S. theol. 2, 2, q. 66, a. 5 ad 2.

³⁶ Theol. mor. l. 3, n. 603.

³⁷ Forcefully and at the same time most truly Dom. Soto says (De iure et iust. l. 5, q. 3, a. 3): "By the law of nature and of nations those things belong to the finder, and there is no evangelical or ecclesiastical law which attributes them either to the poor or to anyone else. Therefore the finder can take them for himself."

³⁸ P. 3, c. 8, q. 7.

³⁹ Sermon 178, c. 8 (Migne, Patr. lat. 38, 965). This saying of St. Augustine has become almost an adage in Germany: "If you make a find and do not make it known - you are a robber that very hour" (Tust du einen Fund und machest ihn nicht kund - ein Räuber bist du zur Stund).

⁴⁰ Cf. Cod. civ. Germ. § 973; Helv. art. 722; Austr. § 392; Hisp. art. 615.

⁴¹ De praeceptis n. 393.

⁴² Theol. mor. I, n. 1090.