Finders keepers?

By Legal Eagle

You remember the school yard taunt, don’t you? “Finders keepers, losers weepers!” Well, I think it’s my duty as a sometime teacher of Property Law to warn the public that it’s not quite accurate. This came to my mind because of a story I read in the Herald Sun today:

A couple will be charged on summons with theft by finding for failing to return in excess of $100,000 left in a suitcase they bought from a Salvation Army shop.

Police have confirmed a 43-year-old man and 34-year-old woman from Berwick will be charged with theft by finding after allegedly discovering the cash and siphoning it away.

I was shocked to see that in the Herald Sun’s poll attached to the article, about 60% of people wouldn’t return $100,000 they found in a suitcase.

I am going to use this article as an excuse to tell you about my two favourite “finders” cases.

The first is a very old case, Armory v Delamirie (1722) 1 Stra. 506; 93 ER 664, where a chimney sweeper’s boy won a case in the Court of King’s Bench. There’s a real David and Goliath flavour to the case, which is probably why I love it so much. In the course of carrying out his duties, a chimney sweeper’s boy found a jewelled ring in a chimney and carried it to the defendant’s shop to find out what it was. The defendant was a goldsmith. The sweep gave the jewel to the goldsmith’s apprentice, who took the jewel away under pretence of weighing it. Instead, the apprentice showed the jewel to his master, who told the sweep he’d give him three halfpence. The sweep refused the money, and the jeweller refused to give him back the stone. He merely returned the empty socket without the stone. The court confirmed that the general principle is that the finder has the best right to the ring in the world other than the true owner of an object. The court said that if the goldsmith did not produce the jewel, it would estimate the worth of the finest jewel which would fit in a socket of that size, and award damages accordingly. The goldsmith failed to produce the jewel, so they awarded the maximum damages against him.

My second favourite case is Parker v British Airways Board (1982) 1 QB 1004. Here is the beautiful explanation by Donaldson LJ:

On November 15 1978, the plaintiff, Alan George Parker, had a date with fate — and perhaps with legal immortality. He found himself in the international executive lounge at terminal one, Heathrow Airport. And that was not all that he found. He also found a gold bracelet lying on the floor.

We know very little about the plaintiff, and it would be nice to know more. He was lawfully in the lounge and, as events showed, he was an honest man. Clearly he had not forgotten the schoolboy maxim ‘Finders keepers’. But equally clearly, he was well aware of the adult qualification ‘unless the true owner claims the article’. …[H]e gave the bracelet to an anonymous official of [British Airways] instead of to the police. He also gave the official a note of his name and address and asked for the bracelet to be returned to him if it was not claimed by the owner. The official handed the bracelet to the lost property department of the defendants.

…Thereafter matters took what, to the plaintiff, was an unexpected turn. Although the owner never claimed the bracelet, the defendants did not return it to the plaintiff. Instead they sold it and kept the proceeds which amounted to £850. The plaintiff discovered what had happened and was more than a little annoyed. I can understand his annoyance. He sued the defendants in the Brentford County Court and was awarded £850 as damages and £50 as interest. The defendants now appeal. (emphasis added)

Note that Donaldson LJ stresses the adult qualification to “finders keepers” – you have to try and find the real owner of the property first before you can keep it. And if you don’t…well, that’s theft, and you end up like the couple in the story above.

You might be wondering what happened to Mr Parker and the gold bracelet? British Airways Board attempted to argue that it had the better right to the bracelet because (a) it was a bailee (temporary keeper) of the bracelet or (b) it was the occupier of the space in which the bracelet was found, so it had the best right to everything found in that space.  However, neither of these arguments succeeded. In relation to (a), it was keeping the bracelet for Mr Parker if the real owner didn’t turn up, so he still had the better right. And in relation to (b), the court found that the space was quasi-public, so that British Airways Board did not have the requisite control over the space and everything in it. Mr Parker won in the end.

So: if you find something lying about, it’s more complicated than “finder’s keepers” – you have to make reasonable efforts to find the true owner. In any case, the thing might belong to the owner of the land if it is in a private space, or if it is attached to the land. Or, if you find it in the course of your employment, the thing could arguably belong to your employer.

You didn’t know the law of property could be so fascinating, did you?

Update

A brief note about the suitcase case – from comments below, it seems that people have difficulty in distinguishing between ownership of the suitcase and ownership of the contents.

The original owners intended to abandon title to the suitcase. If the suitcase turns out to be an incredibly valuable antique suitcase, then that’s bad luck, and the new owners get to keep it. The new owners are entitled to do whatever they want with the suitcase. They can sell it, burn it, paint it, whatever they want.

The original owners did not intend to abandon title to the cash. It still belonged to them. This is why it’s theft. If you find something valuable concealed in something worthless which has been abandoned, you need to find out whether the original owners really intended to abandon that valuable thing before you take it.

39 Comments

  1. Tim
    Posted April 6, 2010 at 9:50 pm | Permalink

    Thanks for this post! I love property concepts.

    But I wonder. Is the Salvation Army case better addressed under contract law? Meeting of the minds and all that. Mutual mistake? Or quasi-contract concepts like unjust enrichment?

    Here in Michigan, we have a famous “cow case” in which the parties thought they were buying and selling a barren cow. It turned out to be fertile. The state Supreme Court reversed the transaction, if I recall correctly. The cow’s name, incidentally, was “Rose the second of Aberlone.”

    Years ago, my dad gave me a tee shirt with a depiction of the cow and the case name on it. And I wrote a poem about the case, and my contracts prof let me read it in class. I got a few laughs.

  2. Posted April 6, 2010 at 10:08 pm | Permalink

    As a non-lawyer, I frequently find property law fascinating. But reading every significant High Court decision on matters indigenous over a 10 year period will do that 🙂

    I find the economic theory of property rights even more intriguing.

    The basic law here–you only get to keep it if you make reasonable attempt to find the owner but, failing that, the finder has the best claim–seems to me entirely sensible. The original owner did not intend to relinquish it, so has first claim. The person who actually located it has the next best claim, because they are the person who put it back into the pattern of designated control known as “property law”.

    Salvage provides a good comparison case. The thing is lost to the web of property unless someone goes to the effort of recovering it, so they get salvage rights (as in “salvaging it for the world of property”).

  3. broomy
    Posted April 7, 2010 at 12:48 am | Permalink

    Help me out here.

    The above two cases don’t apply. The suitcase lined with money was NOT found. It was legally purchased.

    As purchasers of the suitcase the new owners are entitled to do with it as they please.

    Could someone explain to me what “theft” occurred? There was a legal transfer of goods.

  4. Posted April 7, 2010 at 2:42 am | Permalink

    Oh noes, do we have (drumroll) a total failure of consideration?

  5. Posted April 7, 2010 at 6:07 am | Permalink

    I’m with Broomy on this one, In the first instance the salvation army get their goods for sale by donation, so there is a deliberate disposal of the suitcase by its presumed owner and then secondly there is the legal purchase of the case by the person who bought it and found the cash hidden inside. In many of the op shops that I frequent there is either the explicit or implicit understanding that all items are sold in an ‘as is’ condition. To suggest that someone who finds a real treasure that they purchase at a bargain price is in any sense stealing it just seems entirely wrong to me. For example what if you bought an old painting and it turns out to be a lost masterpiece? Is it stealing to then benefit from your good fortune at recognizing what it really is?

    It seems to me that they call their business Op(portunity) Shops for a reason and one part of that is that they provide the public with the opportunity to find treasures amongst the dross that they sell. To then whine when they discover that they have sold something truly valuable for a pittance is just a legal nonsense.

  6. Posted April 7, 2010 at 7:24 am | Permalink

    I Don’t know LE you donate a container how can you claim that you are only donating it and not its contents as well? People donate suitcases and bags with other items in them all the time to the likes of the Salvo’s; are you suggesting that doing so means that the contents of those bags or cases are not legitimately donated? Like wise I once bought an old car for dismantling and when I took out the back seat I found a diamond ring. I felt that It was clearly mine because I had legitimately bought the car (including all of its contents) so there was absolutely no question of “theft by finding”. I think that this will be an interesting case but by no means a forgone conclusion for the previous owner of the cash.

  7. Posted April 7, 2010 at 8:44 am | Permalink

    If I’m completely honest with myself, I have to admit to a suspicion that if sold a suitcase with a hundred bucks floating around in the lid, I’d pocket the money without much thought. A suitcase with a 100,000, though? I’d have that down the cop shop — never mind back to who sold it to me — in a jiffy. I’d assume it was drug money, and that whoever dumped it in the suitcase would come looking for it. Probably while armed.

    The film Millions (directed by Danny Boyle) is an excellent riff on this theme.

  8. Posted April 7, 2010 at 8:51 am | Permalink

    I believe in finders/keepers. Up to a point. I’ve returned something like 10 mobile phones directly to their owners – seriously.

    But I’ve also found several pairs of designer sunglasses. Apart from an initial cursory look ’round I don’t bother. You shoulda taken more care. Sorry but they should’ve.

    $100 000 requires a bit of effort. And it’s foolish not to make it. But still what dickhead donates a hundred grand to the Salvos unwittingly? They deserved to lose it.

  9. tami
    Posted April 7, 2010 at 9:57 am | Permalink

    Comments on the fact that the people who purchased the suitcase from the salvos have possessory rights over the suitcase and just not the money would only be correct IF the original owner had intended to abandon it, but he hadn’t.

    The facts were that he had entrusted the suitcase with the money to his good friend, and both parties knew of the money inside the suitcase – it was the wife of the friend who unwittingly decided to take the suitcase to the Salvos. The original owner didn’t abandon title to anything – he just had the suitcase in what you could liken to a bailment situation that has obviously gone wrong.

    So even if you took the money out of the situation, the original owner would still have valid ownership rights over the suitcase.

  10. Posted April 7, 2010 at 11:56 am | Permalink

    it was the wife of the friend who unwittingly decided to take the suitcase to the salvos. the original owner didn’t abandon title to anything – he just had the suitcase in what you could liken to a bailment situation that has obviously gone wrong.

    Yeah but what dickhead does that!

  11. tami
    Posted April 7, 2010 at 12:27 pm | Permalink

    obviously not a very smart one.

  12. Posted April 7, 2010 at 12:49 pm | Permalink

    LE: No, don’t stop!

    Bees are great, there is a whole economic literature on the transaction costs and externalities of bees and how orchard farmers deal with them.

  13. Posted April 7, 2010 at 12:49 pm | Permalink

    My link did not work. It is here.

  14. Posted April 7, 2010 at 1:15 pm | Permalink

    “a whole economic literature on the transaction costs and externalities of bees ”

    Get me a subscription!

    Sorry, couldn’t resist.

  15. Posted April 7, 2010 at 1:17 pm | Permalink

    Bees… those in “the planet is the common inheritance of all” might delve further into this… and the finders-keepers attitude to resources… let alone terra nullius and colonialism.

    I wonder if the magpie that befriended us was claiming/protecting rights to the friendship and proceeds of the relationship (titbits) when keeping other magpies away from us when we’d walk through “enemy territory” (actually, more like 3 consecutive territories), especially during swooping season?

  16. Posted April 7, 2010 at 6:05 pm | Permalink

    Lorenzo’s article on the economics of beekeeping is actually fascinating. I never thought something like that would be fascinating but it is.

  17. Posted April 8, 2010 at 4:49 am | Permalink

    DB: Terra nullius: just don’t go there.

  18. Pedro
    Posted April 8, 2010 at 11:47 am | Permalink

    “You didn’t know the law of property could be so fascinating, did you?”

    Try telling that to a junior lawyer, they’ll laugh in your face.

    Adrien I wish you’d found my I phone and not the prick who has it.

    The bee story is interesting, but note that the apple orchards don’t have a market solution, they have an agreement between neighbours to act fairly. I bet plenty of free-riding still happens.

  19. Thomas
    Posted April 9, 2010 at 12:09 am | Permalink

    I would think that a case can be made that because the money was hidden in the lining of the suitcase it was technically part of the suitcase itself. Whereas had it been stashed in one of the compartments, it would be a separate item.

  20. Nick Ferrett
    Posted April 11, 2010 at 7:53 am | Permalink

    Two things:

    (1) Armory v Delamirie is remembered as the precursor to Jones v Dunkel in JPQS Pty Ltd v Cosmarnan Constructions Pty Ltd & 3 Ors [2003] NSWCA 66. JPQS is worth reading as a prime example of the acidity of Roddy Meagher.

    (2) LE, I don’t know if the law is that clear. Doesn’t the determination of rights on most occasions depend upon objective analysis of conduct rather than subjective intention? The case is not really one merely of abandonment, in any event. The briefcase was given to the charity, so there was an intentional transfer of title in the briefcase as opposed to a renunciation of title in it (and quaere whether abandonment of property is even possible: Re Jigrose [1994] 1 Qd R 382).

    I think there are two important questions: First, as between the charity and the donor, is the conduct of the donor such as to demonstrate an intention to donate the case and its contents or just the case? Secondly, as between the charity and the buyer, what did the conduct of the charity suggest?

  21. Heather
    Posted May 2, 2011 at 10:38 pm | Permalink

    Legal Eagle/Mrs Barnett…. this blog has helped me more than you can imagine! I am currently studying property law and writing a research assignment on this issue, invaluable points are located on this blog and you have just saved me a multitude of time and stress. Thank you!

  22. Fool
    Posted June 3, 2011 at 5:31 pm | Permalink

    Well lesson learnt (never give the police anything) I handed in a found iphone 4 and the police told me it was picked up two days after.
    I found out 3 months later when i went to ask if I could claim it.
    No formal letter to say it was claimed (suprise suprise), so the corrupt pigs kept it for themselves.
    Fuck the victorian police

  23. Posted September 4, 2012 at 11:18 pm | Permalink

    ‘Finders Keepers’ is a terribly messy concept. We’ve recently completed a case study on an instance when 3 people laid claim to over $100,000 found in a fire extinguisher left in a house after a move. The former homeowner was unaware of its presence (her husband had passed away), the new homeowners made the former sign away content rights (without telling her what they’d found), and the contracter who discovered it laid claim as well (since he was the ‘finder’).

    The whole detailed article can be found in our knowledge base.

  24. Dan O'Hara
    Posted November 18, 2012 at 2:19 pm | Permalink

    I friend of mine lost some property – her family dog. Someone took the dog to the humane society shelter, where my friend found the dog 4 days later. The shelter claims that because of a city bylaw, they are now the legal owner of the dog, since it wasn’t claimed in 3 days. The shelter won’t return the dog unless she pays $50 per day in boarding costs, another $350 to have her dog spayed (which she doesn’t want to do), and another $700 to spay / neuter her other 2 pets who are at home and were never lost. Roughly $1400 which she can’t afford in total. Otherwise, they will sell the dog to somebody else, or donate it for scientific research. How is this legal? Can a city really pass a bylaw that overrides basic property law in this way?

  25. Eamonn Gray
    Posted June 26, 2013 at 9:23 am | Permalink

    is there a lenght of time that any item found belongs to you, ie if i found a bracelet in a carpark, where there is no one to hand it to, is there a lengt of time that it becomes mn and what step should i take.

  26. Tim
    Posted March 15, 2018 at 11:45 am | Permalink

    Does anyone here know the case name for the money in suitcase case? I’ve looked in the Austlii database but can’t find it. Help appreciated….

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