– July 17, 2020 Reading Time: 6 minutes
leftover food

From the sun-drenched tables outside the small-town bakery, I look between the quaint houses toward the frigid sea. The expanse of bay, crisp blue against a backdrop of snow-covered mountains, is the perfect scenery for making my thoughts wander, making connections I’m blissfully unaware of. 

This fine Friday afternoon, I am reminded of a conversation I had with Jeffrey Tucker (the editor of AIER) two years ago. He had brought up the concept of “Ambiguous Property Rights,” something I had never heard of or even considered. Something is either owned or unowned, I objected, with little space in between. Sure, ownership can be contested, and we can fight over whom a plot of land or item belongs to (or should belong to), but once legally settled there’s rarely anything ambiguous about who owns what.

“Consider trash,” he said, “the kind left behind at a restaurant or a bar – who owns that?” Hesitating for a moment, I answered, “The people who left it.” I then corrected myself as real-world scenarios popped into my head: “Actually, the restaurant owner, as the employees of the restaurant clear the trash once the customers leave.” At some point then, the customer’s food becomes the restaurant’s trash; there’s a transfer. 

“So,” Tucker added, with a characteristic grin of a wise old master who had had this conversation many times before, “Who gets to use the trash after the customer has left, but before the restaurant staff cleans the table?” Nobody? Anybody? For some time, most definitely the customer, in case they come back. Is it unowned? Can any passersby grab the leftover food?

I don’t remember ever solving the riddle, and the topic quickly disappeared from my mind – until this sunny afternoon before that splendid mountain view: The couple at the table next to ours leaves their half-eaten sandwich behind and as I stare at the scrap of paper, bread and cheese, the odd question comes back to me. 

When my traveling companion returns from the restroom, I pose the question to him. Always curious about ideas and willing to engage even the oddest of queries, he ponders it for a moment before he says that ownership probably reverts to the restaurant: “You’d have to ask permission from the restaurant before eating it, which implies that the leftover food belongs to them.” He tells me that this is what he and his high school friends used to do at a place they often frequented; in addition to whatever they were consuming, they would get the leftovers from neighboring tables – but only after having previously arranged that with the owner. Just taking it would probably be frowned upon, and possibly illegal.  

A few hours later, we sit at a similar table, admiring almost the same view, now lavished in early-evening sunlight. Dinners finished, we’re still a bit hungry, but not enough to order more. The family sitting next to us on one of those long, wooden picnic tables often found in outdoor seating is eating a pizza large enough to cover their half of the table. Suddenly, in what seems like midway through their meal, they ask for the bill and make their way towards the parking lot. I look at the pizza, four or five plate-sized slices of perfectly fine and uneaten, crispy pizza covered with ham and cheese, waving invitingly to me. I look at my friend who has already noticed the same thing – and we both burst out laughing! 

“This is ambiguous property rights!” he exclaims, while gasping for air in between laughters. “What do we do now?” The waitress sees us laughing hysterically, so we point to the pizza and ask if we can have it. She shrugs her shoulders and says “Sure, what do I care? Go ahead!”

After another few bursts of uncontrollable laughter, we gradually down most of the free pizza, satisfied that our hobby philosophizing for once materially paid off. Another waitress, unaware of the previous owners to this delicious pizza and the exchange we had with her colleague, sees our munching, and asks how we like the pizza. Naturally, we lose it, laughing our guts out to the puzzled look of this poor waitress.  

Who Owns Trash?

We’ve all been in situations like these, seeing others leave perfectly edible food or drinks at the table. Had it been cash, we probably wouldn’t hesitate in either taking it for ourselves – or chasing the stranger down the street to give it back to them. Being nondurable food that’s destined for the bin, the story gets trickier. 

Standard theories of property rights argue that unowned property can be acquired by anyone. John Locke, the 17th century English philosopher and Enlightenment scholar, famously stated that property was established by mixing one’s labor with unowned land, thereby appropriating unowned resources. Finders, keepers

While most countries’ legal systems aren’t exactly Lockean, in some specific areas – like cash – most countries do let finders take over ownership of unowned items. Since cash is pretty much untraceable and ownership almost impossible to prove in hindsight, it is considered to belong to whoever holds it. If I find a $20 note on the street – lucky me! Beautifully shaped rocks on a public beach usually don’t belong to anyone else and I can safely acquire them for myself. Depending on the legal jurisdiction we’re in, archeological remains or oil or mineral deposits may belong to me – but more often revert to the state or whoever bought exploration rights in my area.  

The American treatment of trash is another such interesting gray area story. After a Supreme Court decision in the 1980s, discarded material is in the public domain – unowned property, up for grabs to whoever wants it. But as dumpster divers (people who go into trash containers to uncover edible food or still-functioning clothes or furniture) have found out the hard way, local regulations often outlaw taking trash from stores. Many jurisdictions, like California, don’t outlaw the taking of trash, but occasionally arrest people for trespassing or littering. In Germany, dumpster diving is illegal and all trash considered the property of those who are discarding it.  

Other rules and norms probably guide the taking of perishable food like the tepid pizza me and my friend munched on. In a few hours, it will spoil anyway and the attentive waitress will probably throw it away long before then. Quite a few people seem to have experience with this, including Ruby Lott-Lavigna, a writer at Vice. Going out of her way to snatch up leftover food at the diner she had targeted, she was first reprimanded by a fellow customer who hadn’t actually finished his food, and then told off by staff when asking what would happen if anyone “hypothetically” would do that. Please leave the restaurant, came the answer. She writes: 

“The social rules of dining out are that you definitely do not touch people’s leftover food, possibly for health reasons, but also because of a stigma around eating leftovers as an act associated with those who are homeless or have little money.”

A number of people in this Quora post tell of similar experiences, one even suggesting that Starbucks had a policy against it. Another Starbucks employee allegedly lost his job for eating leftover food that had been marked past its expiry date: the coffeehouse chain cited stealing from the company as the reason for termination, meaning that the company asserted its ownership over trash.   

If the strict line for ambiguous property rights goes at durability – the waste aspect of it – then beer, or smokes, or furniture or other kind of belongings left in the open shouldn’t be up for grabs. Nobody would consider an iPhone left at a restaurant table to be up for grabs – and it could hardly revert to the restaurant as it was never theirs in the first place. Maybe that’s because the restaurant isn’t producing iPhones? But a phone forgotten in an Apple store would hardly shift ownership either, and whoever comes back for it later could reasonably expect the phone to be in the same condition and still be their property. 

Maybe the market value of the item matters. Items of high value could be exempted – as are items of sentimental value, as nobody would consider a forgotten family heirloom to now pass into the hands of a restaurant or its other customers. An interesting qualification, it points to a more pragmatic solution to who owns leftover trash not yet in containers. Ownership doesn’t really transfer to anyone – the food still belongs to the previous customer – but a few dollars’ worth of beer or a half-eaten meal isn’t worth bickering about. Besides, the restaurant needs to clear the table for new customers, in which case its staff re possess the food and throw it away, even if it isn’t strictly theirs.  

Phones or t-shirts or heirlooms found in a waste container, however, have clearly been discarded by their previous owners – and should in the U.S. be treated as unowned property.  

“It would depend on the norms of the community,” says my friend thoughtfully when we once again ponder the limits of taking other people’s food at restaurants. That’s probably true, but makes the answer to this strange conundrum a boring, pragmatic one. Figuring out the exact property rights isn’t worth the hassle: it’s too little and too rare to care about enforcing whatever legal right might be applicable in various jurisdictions. 

In practice, the ownership of leftover food is up to the social norms in the country you’re in, or even the attitude of the staff at the particular establishment you’re visiting – an informal institution, guided by vague and constantly negotiated social interactions. Push comes to shove, the food isn’t yours: it’s not up for grabs until it’s been discarded. On the table, it’s either the restaurant’s or the other customer’s. But since it has very little value to the restaurant, ask nicely, and they might give it to you.

Joakim Book

Joakim Book

Joakim Book is a writer, researcher and editor on all things money, finance and financial history. He holds a masters degree from the University of Oxford and has been a visiting scholar at the American Institute for Economic Research in 2018 and 2019.

His work has been featured in the Financial Times, FT Alphaville, Neue Zürcher Zeitung, Svenska Dagbladet, Zero Hedge, The Property Chronicle and many other outlets. He is a regular contributor and co-founder of the Swedish liberty site Cospaia.se, and a frequent writer at CapXNotesOnLiberty, and HumanProgress.org.

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