Rabbi 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.”