§ 2. Statutes Of Modern Civil Laws

In general it is to be noted that the statutes of civil laws must be observed in conscience, unless the principles of natural law manifestly determine otherwise. But certain statutes seem to be directive norms rather than preceptive ones.

50. I. German Law.

1. He who finds and takes up a lost thing is held to return it to the legitimate owner; or if the owner is unknown and the thing exceeds the value of three marks (of the former currency), he must announce the finding to the public police.⁴³

2. The finder is held faithfully to guard the thing, or if this guardianship is impossible or joined with great expenses (for example if someone finds a cow), he must sell it at auction, with the police nevertheless having been forewarned, and preserve the price of the sold thing or hand it over to the police.⁴⁴

3. The finder can demand from the owner not only compensation of all expenses, but also the legitimate reward of finding, namely 5% up to the value of 300 marks; but concerning a found thing which exceeds this value, beyond 15 marks, still 1%. Therefore if someone, for example, finds 500 marks, he can demand 17 marks as the reward of finding. The reward of finding is only 1% if there is question of found animals.⁴⁵ If the owner refuses compensation and the legitimate reward of finding, the finder can retain the thing.⁴⁶

4. If the owner of the thing has not appeared and claimed the thing within a year (to be computed from the day of denunciation in the public police), the found thing pertains to the finder.⁴⁷

5. If the finder omits the obligation of announcing or conceals the finding, he loses the right to the reward of finding or to the dominion of the thing.⁴⁸

6. If someone finds a thing in the business premises (Geschäftsräumen) or in the vehicles of some public office or business, for example on the railway, in a tramway, in theaters, in inns and hotels, etc., he is held to hand over the thing to the officials or to the head of that public office. If within three years the owner of the thing has not appeared, the thing falls either to the treasury or to the public office itself. But the finder receives nothing.⁴⁹ This statute is indeed very useful for finding the legitimate owner, but in some way hard for the finder himself. Whether it obliges in conscience is not so clear. If the handing over of the thing is morally necessary so that the legitimate owner can be found, for example if someone finds a garment or a book on the railway, then this statute seems to oblige in conscience, because otherwise the finder does not use sufficient diligence for finding the legitimate owner of the thing. But if such handing over is not necessary, because from the beginning it is morally established that the legitimate owner cannot be found, then this statute does not seem to oblige in conscience. For example, if someone finds a coin of money on the railway, he can ordinarily retain it for himself, because it is almost impossible that the legitimate proprietor can prove that this coin is his own.⁵⁰

⁴³ Cod. civ. Germ. § 965.

⁴⁴ §§ 966 and 967.

⁴⁵ §§ 971 and 972.

⁴⁶ § 974.

⁴⁷ § 973.

⁴⁸ § 971.

⁴⁹ §§ 978-983.

⁵⁰ Thus also Lehmkuhl, Bürg. Gesetzbuch § 978.

51. II. French Law.

1. French law distinguishes between "maritime wrecks" (épaves maritimes), "river wrecks" (épaves fluviales), and "land wrecks" (épaves terrestres). But under the name "wrecks" (épaves) is understood every movable good lost by its proprietor. Goods abandoned from shipwreck can be claimed by the proprietor within the space of 3 or 12 months. If the claim has not been made within this time, those goods pertain totally to the finder if he drew them up from the bottom of the sea; but a third part of them, if on the surface of the sea; and nothing, if they were found on the shore. These latter determinations do not seem to induce a grave obligation in conscience.

2. Found things must be handed over to the public authority.⁵¹ But if the owner has not claimed them within 3 years, they are returned to the finder, who then becomes proprietor. This ordinance is indeed very good, but it does not seem to have a grave obligation either in the civil forum or in the forum of conscience. Therefore it suffices if the finder in another way diligently inquires concerning the proprietor of the lost thing. If he has not appeared within three years, the thing pertains to the finder by title of prescription by force of the adage: "In the matter of movables, possession is equivalent to title" (En fait de meubles, la possession vaut titre).⁵²

3. Things left behind through forgetfulness in public inns and hotels (chez les hôteliers) do not pertain to the owner of the inn or hotel, but must be sold by public authority.⁵³ But the price obtained, after the expenses of the innkeepers have been deducted, is deposited "at the Deposits and Consignments Fund" (à la Caisse des dépôts et consignations) for the benefit of the proprietor. This statute also, as not so consonant with the law of nature, does not seem to oblige in conscience.

⁵¹ "Au greffe du tribunal" according to the circular of 5 August 1825.

⁵² Cod. civ. Gall. a. 2279.

⁵³ Law of 31 March 1896.

52. III. Swiss Law.

1. If someone finds a thing, he must either himself diligently inquire concerning the legitimate owner or report the found thing to the public police. But he is held to report a found thing to the public police if it exceeds the value of 10 francs. But if he finds a thing in an inhabited house or in some public transport establishment (Verkehrsanstalt), for example in an inn, in a theater, on the railway, etc., he is held to hand over the thing to the owner (lessor) of the house or to the head of the public transport establishment,⁵⁴ who then, by a fiction of law, is judged to be the finder, but they cannot demand the reward of finding.⁵⁵

2. The found thing must be faithfully guarded; but, public authority having been obtained beforehand, it can be sold at auction if it cannot be preserved, or if guardianship causes excessive expenses. Then, however, the price of the found thing must be preserved.⁵⁶

3. The finder who has fulfilled the precepts established by these laws acquires the found thing if for 5 years the legitimate owner has not appeared; but if he has returned the thing to the legitimate owner, he has a right to a suitable reward of finding.⁵⁷

⁵⁴ Cod. civ. Helv. a. 720.

⁵⁵ Art. 722; cf. what was said above n. 50 (6) concerning a similar statute of German law.

⁵⁶ Art. 721.

⁵⁷ Art. 722.

53. IV. Austrian Law.

1. The finder is held to make the found thing known in the accustomed manner if the value of the thing exceeds one florin (of the former currency); but if the value exceeds 12 florins, he must report the thing to the local superior.⁵⁸ But if the finder has neglected these statutes, he loses the right to the reward and besides must be gravely punished.⁵⁹

2. The finder has the right to the reward of finding, and indeed 10%. But if the reward thus to be paid reaches the sum of 1000 florins, afterward only 5% is granted.⁶⁰ This reward of finding seems to be excessive. Nevertheless it must be paid at least after the sentence of the judge.

3. If within a year the owner of the thing has not appeared, the finder becomes its usufructuary, and after three years, proprietor by force of legitimate prescription.⁶¹

⁵⁸ Cod. civ. Austr. § 389.

⁵⁹ § 393.

⁶⁰ § 391.

⁶¹ § 392 and 1466.

54. V. English And American Law.

Those things which the civil law of England prescribes concerning found treasures, goods lost by shipwreck, and vacant goods do not oblige in conscience before the sentence of the judge.⁶² Concerning lost things there do not seem to exist special civil laws obliging in conscience. Hence in England (and North America) the confessor must attend only to the principles of natural law. Someone could nevertheless doubt whether a law obliges in conscience which establishes that the finder, after diligence for finding the owner has been applied in vain, indeed acquires dominion of the found thing, but with the obligation that, if the owner appears after any length of time, restitution be made to him. Therefore the law of England does not admit prescription against the owner of the lost thing.

⁶² Thus Slater, Princ. Theol. mor., de Iust. c. 4, a. 1.

55. VI. Italian And Spanish Law.

1. The civil codes of Italy and Spain establish almost the same things concerning the finding of a lost thing.

2. If someone finds a thing whose owner he does not know, he must hand it over to the syndic (sindaco, alcalde) of the place where it was found. He will publish notice of the found thing on the two immediately following Sundays.

3. After two years have elapsed after these publications, the found thing (or its price) is handed over to the finder, unless the proprietor has appeared.

4. The reward of finding is 1/40 (and if the value of the thing exceeds the sum of 2000 francs, it is 1/20) of the value of the thing.⁶³

⁶³ For Italian law see Cod. civ. a. 715-718; cf. Piscetta, Theol. mor. III, n. 124. But for Spanish law see Cod. civ. a. 615 sq.; cf. Larraga-Saralegui n. 708.