Abandonment and Finding
CASE 97
D 41.1.58 (Javolenus libro undecimo ex Cassio)
Quaecumque res ex mari extracta est, non ante eius incipit esse qui extraxit, quam dominus eam pro derelicto habere coepit.
Translation: (Javolenus in the eleventh book of his Abridgement of Cassius)[203]
Property that is drawn out from the sea does not belong to the person who drew it out until the owner considers it to be abandoned.
Discussion Questions:
1) Someone thinks the property is abandoned.
Can he usucapt it?2) Someone throws away another's property. Can it be usucapted?
3) In an emergency at sea the passengers throw their luggage overboard in order to lighten the boat. Can the finder acquire ownership of the luggage?
Compare with this Case:
§ 386 Austrian Civil Code:
Any citizen of the country can assume ownership of movable property that the owner no longer wishes to keep as his own and therefore abandons. In cases of doubt, it is not to be supposed that someone wished to give up his ownership; therefore no finder may consider found property to be abandoned and claim it as his own.[204]
§ 959 German Civil Code:
A movable piece of property becomes ownerless, if the owner abandons possession of the property with the intention of renouncing ownership.[205]
Literature:
Manthe (Case 19) 144 f.
D 47.2.43.8-9 (Ulpianus libro quadragensimo primo ad Sabinum)
(8) Proinde videamus, si nescit cuius esset, sic tamen tulit quasi redditurus ei qui desiderasset vel qui ostendisset rem suam, an furti obligetur.
Et non puto obligari eum. Solent plerique etiam hoc facere, ut libellum proponant continentem invenisse se et redditurum ei qui desideraverit: hi ergo ostendunt non furandi animo se fecisse.(9) Quid ergo, si eUperpa quae dicunt petat? Nec hic videtur furtum facere, etsi non probe petat aliquid.
Translation: (Ulpian in the 41st book of his Commentary on the Ius Civile of Sabinus)[206]
(8) Let us therefore consider whether the finder, who does not know to whom the property belongs, but has taken it up, as if to return it to the person who should seek it or show that it is his, is liable for theft. I do not believe that he is liable. Many people are accustomed to posting a notice that they have found property and will turn it over on request. This therefore shows that they have not handled it with theftuous intent.
(9) But what if someone requests a so-called finder's fee? Also here he does not count as a thief, even if he asks for something, contrary to good manners.
Note on the Text:
On videtur (“counts as”), see on Case 72.
Discussion Questions:
1) Is the honest finder a possessor?
2) Is the dishonest finder a possessor?
3) Is the finder in Rome obliged to give notice?
4) Is theft to be inferred, if the finding is not reported?
5) Under what circumstances can the finder acquire ownership?
Compare with this Case:
§ 390 Austrian Civil Code:
The finder must immediately notify the appropriate person responsible for found property (Subsec. 5 Security Police Ordinance), surrendering the property that was found, and providing information about all the circumstances that are pertinent for discovery of the person who has lost the property.[207]
§ 391 Austrian Civil Code:
The obligations under § 390 do not apply, if
Antiqua">1) the finder delivers the found property to the person who lost the property prior to making the report, or
2) the customary value of the found property does not exceed 10 Euros, unless it can be recognized that the recovery of the property is of importance to the person who lost it.[208]
§ 395 Austrian Civil Code:
If within one year the property is not claimed by the person who lost it, the finder acquires ownership of the property still in his custody at the expiration of the period, [and] in property that was surrendered, with its delivery to him.
The period begins in the case of § 391 subsec. 2 with the time of the finding, otherwise with the giving of notice (§ 390).[209]§ 965 I German Civil Code:
He who finds and takes possession of lost property must immediately notify the person who lost it or the owner or an otherwise authorized recipient.[210]
§ 973 I German Civil Code:
After the expiration of one year from the time of notifying the police authority of the finding, the finder acquires ownership of the property... [211]
n.b. : The BGB devotes no fewer than 19 paragraphs (§§ 965-983) to the topic of “finding” (exclusive of treasure-trove).
Art. 720 Swiss Civil Code:
He who finds lost property must tell the owner of it and, if he does not know who the owner is, either notify the police of the find, or himself take care to make inquiry and publication in a manner appropriate to the circumstances... [212]
Art. 722 Swiss Civil Code:
He who fulfills his obligations as finder [720/1], acquires ownership of the property, if for a period of five years following the publication or notice [720] the owner cannot be identified.
If the property is returned, the finder has a claim for indemnification of all expenses, as well as an appropriate finder's fee... [213]
Literature:
Dull, R. “Auslobung und Fund im antiken Recht.” ZSS 61 (1941) 19-43, at 41 ff.
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