Story LineTumbling KnapsackRabbi Meir Orlean
Zvi and Dovid decided to go adventure hiking in the mountains one day. Each brought a knapsack with various supplies.
“Let’s put all the food in your bag, and move everything else into mine,” suggested Zvi. “It will be easier to manage that way.”
Dovid took out his sweatshirt. “I have the same kind,” noted Zvi. “I’m putting mine top up, and yours top down.” The boys also had each brought a bag of marbles from their collection.
“I have loose bills in my pocket,” said David. “Can you keep them in your wallet?”
“Fine,” said Zvi, “in the knapsack.”
In the afternoon, the two sat down to eat on a flat ridge in the mountain. While they were eating, a large wild animal ran by and kicked Zvi’s knapsack!
It fell off the cliff edge and bumped and rolled its way down a precipice. It landed a few hundred feet below.
The boys finished eating, and carefully climbed down the mountain to retrieve the knapsack.
Finally, they got to it. They assessed the damage.
The bags of marbles had burst, and were all mixed together. About half of them had fallen out of a hole in the knapsack.
One of the sweatshirts had fallen into a ravine far below; the remaining one was turned sideways.
The wallet had some of the bills still in it, but some had blown away in the wind.
All in all, about half the contents were lost; half remained in the knapsack.
“How do we divide the remaining contents?” asked Zvi.
“We had about the same amount,” said Dovid. “We should share the loss evenly.”
“But it’s in my knapsack,” replied Zvi, “so I’ve got the upper hand.”
When they returned home, they decided to ask Rabbi Dayan. “I had money, a sweatshirt, and marbles of Dovid’s together with mine in my knapsack,” said Zvi. “It tore and about half fell out. How do we divide what’s left?”
“The Gemara (Bechoros 18b) states that if a person put his animal in another’s barn and one animal died,” replied Rabbi Dayan, “if the animal cannot be identified, the barn owner can claim that the other’s animal died, because of hamotzi meichaveiro alav hare’ayah (the burden of the proof is on the plaintiff)” (Y.D. 317:2).
“Nonetheless, Terumas Hadeshen (#314) writes that if two people mixed their money and some of it was lost,” continued Rabbi Dayan, “the loss is divided proportional to their respective amounts” (C.M. 292:10).
“Why is that?” asked Dovid. “What’s the difference?”
“Terumas Hadeshen explains that money is all the same,” answered Rabbi Dayan. “A person who entrusts money to another does not expect to get his particular bills or coins back. Thus, the two are like partners in the shared sum, so that the loss is proportional.
“However, people are particular about their animals, so that even when mixed in the barn, each belongs to its rightful original owner,” continued Rabbi Dayan. “Thus, when the dead animal cannot be identified, we apply the rule of hamotzi meichaveiro.
“Similar to money, if someone mixed another’s produce with his and some spoiled, the loss is shared proportionally,” added Rabbi Dayan. “Regarding produce, there is additional logic that the nature of fruit is to spoil proportionally” (Pischei Choshen, Pikadon 8:22).
“Nesivos (292:16) and Machaneh Ephraim (Hilchos Shomrim #26) further note that maaser sheini coins and regular ones that got mixed are assumed to be proportional,” added Rabbi Dayan. “Although they are separate monies, since coins are small and easily mixed, we do not apply hamotzi meichaveiro, but instead divide proportionally, unless only a single coin is lost.”
“How does all this apply here?” asked Zvi.
“Regarding the sweatshirt, hamotzi meichaveiro alav hare’ayah, and Zvi can claim that Dovid’s sweatshirt was lost,” concluded Rabbi Dayan. “Regarding the money, which is considered shared, and the marbles, which are small and mixed, the loss is divided proportionally.”
From the BHI HotlineWhen in Doubt … Pay Out!
Q: The standard procedure in the retail store I own is that a customer brings the goods he wishes to purchase to one employee, who tallies the items and prints out an invoice, which the customer then brings to another employee, who receives the payment and records it on the store’s computer. At the end of each day, the list of invoices is compared to the list of payments, so management can ensure that all items were paid for.
While reviewing the ledger one evening, one of my employees noticed that a certain customer, whom we know to be a trustworthy person, did not pay the invoice that had been printed for him. No one suspected that he had stolen intentionally; we figured that he was probably distracted by a phone call and inadvertently left the store without paying.
I called the customer, who was shocked to hear about the problem. He said that although he doesn’t specifically recall paying, it is unlikely that he would have left with goods without paying for them.
Is he obligated to pay?
A: This is a classic case of “bari v’shema,” where the plaintiff is certain about his claim (bari), and the defendant is uncertain (shema).
The halachah in such cases is as follows:
If the defendant is uncertain whether he ever owed the money (eini yodei’a im nischayavti) – for instance, if Reuven says that Shimon borrowed money from him, and Shimon doesn’t recall borrowing it but cannot say for certain that he didn’t – beis din technically cannot obligate the defendant to pay, but he does have an obligation to pay latzeis yedei Shamayim (to avoid facing judgment in Heaven). If, however, the defendant admits that he owed the money at some point, but he is unsure whether he ever repaid it (eini yodei’a im parati), beis din can obligate him to pay. Since we know that a debt existed and we don’t know that it was paid, the chazakah places us back into the last state of certainty – which is that he owes money to the plaintiff (Shulchan Aruch, Choshen Mishpat 75:9).
If the plaintiff is also uncertain of the circumstances, however, then the defendant has no obligation to pay even if he is sure that he owed money at one point and is uncertain whether he paid (ibid. 75:10 with Taz, and se’if 18 with the commentaries).
In our case, the store owner’s claim, based on the examination of his ledger, is reliable enough to be considered bari (see Choshen Mishpat 91:4; Shach 24; Shu”t Rabbi Akiva Eiger 3:83). The customer is considered a shema.
The question, then, is how we view his uncertainty – is this akin to a person who has already admitted to owing money but is uncertain whether he paid, or to someone who is unsure whether he ever owed money?
If we view this case as one in which the customer is admitting that he owed money at some point, and is uncertain whether he paid, beis din would obligate him to pay. But we might view this case as one in which the customer never admitted to owing money at all, because assuming he is correct in his assertion that he paid for the goods, he did so before leaving the store, in which case he never owed money to the store owner, and his obligation to pay is only latzeis yedei Shamayim (see Tumim 75:22, cited in Pischei Teshuvah 75:27, and Chiddushei Chasam Sofer to Shach 332:15, but see also Shu”t Chasam Sofer, Choshen Mishpat 187).
In all likelihood, in this case the obligation to pay would be latzeis yedei Shamayim, since we cannot say for certain that the customer ever owed money. [We should note that this sort of case is uncommon nowadays, when commercial data systems are capable of tracing payment, or lack thereof, to a very high level of certainty. The principles discussed apply to many other cases, however.]
Additionally, even in a case where the above does not apply and the defendant would not be obligated to pay (e.g., see Urim v’Tumim 88:38; Ateres Chachamim 7, cf. Mishnas Hamishpat 75:28), nevertheless if the defendant believes in his own heart that the plaintiff is telling the truth, he should pay latzeis yedei Shamayim (see Minchas Pitim 17 and Shiyarei Minchah, and Hashmatos).
Q: What are the different types of brokers recognized in Halachah? What are their respective rights, responsibilities and liabilities?
A: There are three basic types of brokers:
1. One who buys in order to resell, commonly called a sarsur (C.M. 186:2).
2. One who is hired as an agent to buy or sell for his sender, such as a real-estate agent. He is considered an employee, whose wages must be paid on time, if he demands them (C.M. 185:1; 339).
3. One who mediates a deal on his own initiative, such as a shadchan. He is not considered an employee who receives payment for his labor per se; instead, the obligation to pay him is because of the benefit that the parties received from him (Rema 185:6; Gra 185:13).
The last two types are commonly referred to as metavchim (middlemen).
To each of these three types of brokers apply specific halachos, which we will discuss, be”H, in coming weeks.