Winter had arrived. The beach was almost completely deserted; the water was too cold for swimming.
One Sunday morning, the sun shone, warming the air. The Rosens decided to utilize the opportunity to take their children to play in the sand and watch the ships sailing by.
They brought plastic pails and shovels to dig in the sand, a sieve to run the sand through, and food to have a picnic lunch.
After the children had played for a while building sandcastles, Mrs. Rosen got lunch ready. When everything was ready, the family began to wash. Mrs. Rosen instinctively reached to remove her ring, but realized that it had fallen off in the sand! She looked around, but saw nothing.
“We must find the ring!” Mrs. Rosen implored her husband. “We’ll have to sift the sand until we find it.”
While the children ate, Mr. Rosen methodically sifted the sand in the area. While he was sifting, some Jewish teenagers passed by.
“What are you doing?” they asked.
“We lost something in the sand, and are looking for it,” said Mr. Rosen.
“I’ll look also,” said one of the boys. After ten minutes, he called out: “I found a ring!”
“That’s what we were looking for!” Mr. Rosen exclaimed. “It slipped off my wife’s finger.”
“I’m happy to return the ring,” said the boy, “but would appreciate some reward. After all, I found the ring, and by right could keep it!”
“What do you mean?” asked Mr. Rosen. “You have a mitzvah of hashavas aveidah!”
“I’m not sure that applies here,” said the boy. “The ring was swallowed in the sand and completely lost.”
“I’d like to check this,” said Mr. Rosen. He called Rabbi Dayan and asked:
“Was the boy obligated to return the ring?”
“The Gemara (B.M. 26b) teaches that if someone lost a coin in the sand, the finder is not required to return it, because the owner has yei’ush of it,” replied Rabbi Dayan. “Even if the owner sifts the sand, this does not contraindicate yei’ush of his own coin, but rather his thought is that others also lost coins so that he would find something.”
“Some Rishonim equate a coin lost in the sand to an item washed out to sea, lost from everyone, which the Torah permits as hefker or inherent yei’ush, even if it has identifying features (Ritva and Shita Mekubetzes 26b s.v. v’amar).
“However, Rambam (Hil. Gezeilah v’Aveidah 14:9) — although he also compares this case to something lost in the sea — limits this halachah to an item without identifying features.
“Tur and Shulchan Aruch, though, rule simply, without qualifying, that the finder may take the coin, because the owner certainly had yei’ush, even if he sifted the sand (C.M. 262:14).
“Among contemporary poskim, Hashavas Aveidah K’halachah (2:16c) writes that Shulchan Aruch maintains that the halachah applies even when there are identifying features, such as a ring, whereas Pischei Choshen (Aveidah 2:11) cites this halachah when there aren’t identifying features, like the Rambam.
“In addition, Rashba (21b) considers an item washed out to sea as hefker that the Torah permits to all even if the owner chases after it and declares that he does not have yei’ush. Nonetheless, he maintains that here — because it is possible to sift the sand and retrieve the coin — when the owner explicitly states that he is sifting the sand to find his coin and does not have yei’ush, it is no longer like something washed out to sea, so the finder must return it.
“Similarly, Aruch Hashulchan (262:20) writes that if the owner immediately states that he is bringing a sieve, others may not take the coin, because then we see that the owner does not have yei’ush (see also Drisha 259:13).
“Thus, although the Shulchan Aruch does not qualify this halachah, many Rishonim and Acharonim restrict it either to a coin without identifying features or when the owner does not immediately express explicit intent to find his lost item. Therefore, the boy must return the ring.
“Regardless,” concluded Rabbi Dayan, “it is proper, lifnim mishuras hadin, to return a lost item even when the owner had yei’ush” (C.M. 259:5,7).
Verdict: When a person loses a small item in the sand, we presume yei’ush, even if he begins sifting the sand. However, many poskim restrict this halachah if the item has identifying features or if the owner explicitly states that he is sifting to recover his item.
Based on writings of Harav Chaim Kohn, shlita
