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.
Dovid took out his sweatshirt. “I have the same one,” noted Zvi. “I’m putting mine top up, and yours top down.” The boys had each brought a bag of marbles and loose bills. Everything went into Zvi’s bag.
In the afternoon, the two sat down to eat on a flat ridge. While they were eating, a wild animal ran by and kicked Zvi’s knapsack. It fell off the edge, rolled its way down a precipice, and landed a few hundred feet below.
When the boys retrieved the knapsack an hour later, they saw that the bags of marbles had burst. Half the marbles had fallen out of a hole in the knapsack and the other were all mixed together. One of the shirts had fallen into a ravine far below; the remaining one was turned sideways. Some of the money was still in the bag; the rest of the bills had flown away. All in all, about half the contents were lost.
“How do we divide what’s left?” asked Zvi. They decided to ask Rabbi Dayan.
“The Gemara [Bechoros 18b] states,” Rabbi Dayan said when presented with the details of the case, “that if a person put his animal in another’s barn and one animal died, the barn owner can claim that the other’s animal died if it cannot be identified since hamotzi meichaveiro alav ha’reya [the burden of the proof is on the one who wishes to take something].” [Yoreah De’ah 317:2]
“The Terumas Hadeshen [#314], though, writes that if two people mixed their money and some of it was lost,” continued Rabbi Dayan, “the loss is divided proportionally.” [Choshen Mishpat 292:10]
“Why?” asked Dovid. “What’s the difference?”
“The Terumas Hadeshen explains that money is all the same,” answered Rabbi Dayan. “A person who entrusts money with another does not expect to get his particular bills or coins back. Thus, the two are like partners in the shared sum, so the loss is divided proportionally.”
“However, people are particular about their animals, so even if they get mixed up, each belongs to its original owner. Thus, when the dead animal cannot be identified, we apply the rule of hamotzi meichaveiro.
“Produce is similar to money,” added Rabbi Dayan. “If someone mixed another’s produce with his and some became spoiled, the loss is shared proportionally. It is also the nature of fruit to spoil proportionally.” [Pischei Choshen, Pikadon 8:22]
“The Nesivos [292:16] and Machaneh Ephraim [Hilchos Shomrim #26) note that ma’aser sheni coins and regular ones that became mixed are treated like other monies,” said Rabbi Dayan. “Although they are different kinds of money, we do not apply hamotzi meichaveiro since coins are small and can easily become mixed. Rather, the loss is absorbed proportionally unless only a single coin is lost.”
“How does all this apply here?” asked Zvi.
“Regarding the shirt, hamotzi meichaveiro alav harea’yah, and Zvi can claim that Dovid’s shirt was lost,” concluded Rabbi Dayan. “Everything else – the money and the marbles (which are small and mixed) – is divided proportionally.”
