Explanation: Both cases are where the worker was hired in front of witnesses.

Question: Let us see (i.e. hear) what the witnesses say! A similar question is posed in Bava Basra (45b) regarding a worker.

Answer: The witnesses do not know the amount of wages they agreed upon.

Implied Question: There, (in Bava Basra 45b) as well, the Gemara could have given this answer. (Why didn't it give this answer?)

Answer: It did not need to give this answer, as it gave a different good answer.

Explanation: The case must be when the employer says that he did not yet pay. If he already paid, he is considered to be denying any claim. Later, the Gemara indeed establishes that this is according to Rebbi Yehudah who requires a partial admittance in order for an employer to have to take an oath.

Question: This is difficult. Why should we say that if his wages are already passed due the employee must bring proof? The Gemara explained earlier that the reason the employer is believed (at the time the wages are due) is because there are two assumptions. There is an assumption that the employer will not transgress the prohibition against paying later, and there is another assumption that an employee does not wait to claim his wages. In this case, the employee clearly waited and the employer transgressed not paying him!

Opinion#1: This means that an oath has to be instituted, and it has to be uprooted from the person who is supposed to take it, namely the employer. We do not make a decree for a decree.

Opinion#2: This is unlike Rashi's explanation that this is the decree of Rav Nachman who says that we make him take a Shevuas Heses.

Implied Question: This is because that oath did not yet exist in the time of the Tannaim, as the Mishnah states that if someone says, "I have nothing of yours in my hand" he is exempt. We also say in Kidushin (43b), "Now that the Rabbanan have instituted a Shevuas Heses etc." (Accordingly, how can this be used to explain the Beraisa?)

Implied Question: This is unlike the Gemara earlier (41a) that discusses a case where the person supposed to take the oath cannot do so. The Gemara there says that we do not turn around a Rabbinic oath, as we do not make a decree for a decree. (How, then, can we say a Rabbinic institution that the employer should swear can be turned around so that the employee should swear?)

Answer: In that case, the oath was originally instituted on the one who is suspected of lying, and they did not want to uproot it from that person. However, here the original institution is that it should be taken by the worker.

Explanation: The Rokeach explains that this is specifically regarding a regular person. However, when someone's status is that he carries out his threats, this does not apply. This is logical.

Question: Even without this logic, he should be believed with a Migu that he could have said he bought it from him. This is as the Gemara in Bava Basra (36a) says that a person who took a sicle and rope (or basket) and said that he was going to chop down a palm tree that he had bought from someone else is believed. This is because a person is not suspected to go cut down someone's palm tree if it does not belong to him.

Answer: The Gemara there is referring to gathering fruit (not cutting down a tree). This is why it mentioned a sicle and rope, and the term of "Gedirah" referring to picking dates (not cutting down the tree, as we thought). This is why he is believed, as it is normal to sell fruit. However, here we are talking about chopping down a palm tree. This is why our Gemara mentions an ax, and going to "kill" the tree. It is not normal to sell a fruit tree that bears fruit in order for it to be chopped down.

Proof: It is also clearly implied in Bava Kama (91b) that a person is not believed if he is going to chop down the tree. This is apparent from the fact that the Beraisa where a person accuses someone by saying, "You killed my ox, you chopped down my tree!" The defendant says, "You told me to kill it, you told me to chop it down!" We only say the defendant is believed if the ox was going to be killed anyway, or if the tree was going to be chopped down.

Explanation: The witnesses noticed he had some vessels, and the borrower claims that the lender hid more than the witnesses noticed.

Opinion#1: It appears from this explanation that the law does not follow Rebbi Chiya who discusses a case in Bava Metzia (3a) where a person claims a Manah (one hundred Zuz) from his friend and his friend denies owing anything. Witnesses testify that he owes fifty. He must give fifty and swear regarding the rest, as his admission should not be greater than the testimony of witnesses based on a Kal v'Chomer.

Opinion#1(cont.): In our Gemara we say that the testimony of witnesses is indeed not as strong as partial admission. This is apparent from Rebbi Yehudah's statement that partial admission is required to make him swear (even though witnesses testified that he took some of what is being claimed).

Question: The Ri says that this is not a proof, as it is possible to establish that the case is where he returned whatever the witnesses saw that he took.

Implied Question: The Gemara's statement in Bava Metzia (ibid.), "if Rebbi Chiya is correct" is not proof that we do not rule like him. (Why not? It sounds as if the Gemara is saying that he is not correct, but if he would be etc.)

Answer: We also say in Kesuvos (70b), "If Rav Huna is correct that a woman can say etc.," and we still rule that his statement is indeed the Halachah.

Opinion#2: It seems one could somewhat prove that the law follows Rebbi Chiya from the Gemara in Bava Metzia (5a) that says that Rebbi Chiya rules like the Rabbanan of Rabban Gamliel who say that if a person claims wheat and the defendant claims barley, the defendant is exempt. The Gemara there establishes that there are two Pesukim, one teaching us that one must partially admit, and one teaching he must partially admit to the type of claim made by the claimant. We indeed rule he is exempt.

Question: Rabeinu Yosef ben Harav Baruch says that this is not valid proof. Even the opinion that says one is exempt in such a case (claims wheat and admits barley) might argue on Rebbi Chiya.

Question(cont.): This is because one can ask, the case of claiming wheat etc. and partial admission both do not involve the possibility of the defendant becoming a Zomem (as opposed to witnesses creating the partial admission where they can become Zomimim). Rebbi Chiya clearly does not learn that this is a question, as stated in the Gemara in Bava Metzia (3b).

Proof: This also must be stated according to Rebbi Yochanan, who argues on Rebbi Chiya in the first chapter of Bava Metzia in the Yerushalmi, despite the fact that he says one is exempt if someone claims wheat from him and he only admits to owing barley. One must say that Rebbi Yochanan asks the question regarding Zomimim as well (and therefore argues on Rebbi Chiya's law).

Text#1: Rashi has the text that we only say this regarding things that are normally lent and rented. Rashi explains that this means that in cases where he is not believed, he is (also) not believed regarding such items. (The Tosfos Ha'Rosh explains that this is in a case where all of the previous reasons that he would be believed cited in the Gemara earlier did not apply.)

Question: Rabeinu Tam finds this explanation to be difficult. The Gemara later says that Rava took a scissors used by those who comb clothes and a book of Aggadah from orphans (whose father had taken these things from someone else), as they are things that are normally lent and rented. This implies that for this reason alone he took them away. In Bava Metzia (116a) as well, only this reason is mentioned. (In other words, these Gemaros imply that this reason alone is enough not to believe him, even if the previous exceptions in the Gemara did apply!)

Text#2: Rabeinu Tam understands that the text of Rabeinu Chananel and the She'arim of Rav Hai Gaon is correct. Their text is that all of these things (the above exceptions mentioned in the Gemara where he is believed, as explained below) are only regarding things that are not normally lent and rented. However, regarding things that are normally lent or rented, he is (never) believed.

Text#2(cont): This is what this means. Regarding all of these cases he is only believed to say that he bought these items if they are things that are not normally lent or rented. For example, if he is a modest person or they are items that are normally hidden or the owner was someone who normally sells his items. However, regarding things that are made to lend or rent out he is not believed, even if all of these things are in his favor. This is even if the owner says they are stolen.

Text#2(cont.): Little animals (i.e. goats) do not have a Chazakah, even if a person claims that they were stolen from him. This is because they are things that are made to lend and rent. When he says that he bought them it is obvious that he is not believed.

Opinion: Rabeinu Chananel himself explains as does Rashi.

Question#1: This does not appear to be correct. The Gemara does not seem to say this.

Question#2: Additionally, Rabeinu Chananel himself shows that this is not the correct explanation, from the fact that he changed here to say, "And regarding all of these (exceptions) we only say this etc." This implies that he does not hold as he did previously, that this is a case where he otherwise would not be believed.

Opinion: It appears that this is certainly true regarding other Sefarim that it is normal to lend. This is as stated in Kesuvos (50a), "And his righteousness will stand forever," refers to someone who writes Sefarim and lends them to others.

Question: Being that Sefarim are made to lend and rent, this is difficult. The Mishnah says in Bava Kama (114b) that if someone recognizes that his vessels and Sefarim are in someone else's possession (and that person claims he bought them), the person who bought them should swear how much he had to pay for them, and the claimant takes them after reimbursing the buyer. (This is only if there was a rumor that his things had been stolen.) The Gemara asks, perhaps he (the claimant) himself spread the rumor! The Gemara concludes the case is where people slept in his house. He woke up in the middle of the night, and there was a hole dug into his house, and the people who slept by him had disappeared. Everyone was saying how his vessels and books had been stolen.

Question(cont.): Why does the Gemara need to say that so much happened? We should merely believe him (the claimant) with a Migu that he could say they were lent to me! The other person is not believed to say that he bought them, being that they are normally lent and rented. This reason alone is enough to make him unbelievable, as I explained earlier (in the previous Tosfos).

Question(cont.): One cannot say in the Gemara in Kesuvos (ibid.) that the reason that is because we do not maintain that people have the status of thieves, as stated there. This is because the Gemara there does not say that the defendant stole them, but rather that thieves stole them (and he bought the item from them, not realizing it was stolen). There are many thieves in the world!

Answer#1: Rabeinu Tam says that the Gemara in Kesuvos is referring to a person who he does not normally deal with. It is clear that he did not lend him anything. In our Gemara, Rava who took the Sefarim away, knew that the owner of the Sefer would normally lend the orphan's father different things when he was alive.

Answer#2: Rabeinu David explains that this would be a Migu that would cause us to take money away. We do not say such Migus. [See Tosfos in Bava Metzia 116a, DH "v'Ha."]

Question: Rabeinu Tam asks that the Gemara in Sanhedrin (27a) discusses a sinner who eats Neveilos in order to anger Hash-m. Abaye says that he is invalid for testimony, while Rava says that he is valid, as to be invalid one must be an evildoer because he steals money. The Gemara asks a question from the Beraisa that states, "Do not put an evildoer as a witness" refers to thieves and those who lie when taking an oath. This implies that anyone who lies when taking an oath, whether it is merely lying about something that happened or monetary matters, is invalid. This implies that one does not require being a monetary evildoer to be invalid! The Gemara answers that this is incorrect. Both are referring to monetary oaths. Why doesn't the Gemara there ask a question from our Mishnah, which explicitly disqualifies a person who swears falsely from being able to take an oath? Nobody argues on our Mishnah! It would seem that the same law would apply regarding him being unfit to testify.

Answer: We say there that a person who swore falsely may testify, being that he is not a monetary evildoer. However, here where he is already evil to others if he is someone who lies and denies owing money, when he swears falsely he is considered evil towards Heaven (as well). This is why he cannot take an oath.

Opinion#1: Some want to explain, based on our Gemara, that anyone who transgresses a Cheirem should not be considered unfit to swear, being that when he accepted the Cheirem it could be that he swore truly (he just did not end up keeping it).

Opinion#2: Rabeinu Tam says that he is invalid. Our Gemara only says that "it is not said," meaning that it is not talking about an oath he took sincerely (the fact that it did not mention this does not mean he may still take oaths).

Proof: Proof to this can be found in Kesuvos (85a). The Gemara says there that there was a woman who was obligated to swear in Rava's Beis Din. The daughter of Rav Chisda (Rava's wife) said to Rava, "I know that this lady is suspected of lying under oath." (She must have been talking about transgressing oaths she made. Rava indeed did not let this woman swear, showing this alone makes one unfit to take oaths.)

Proof (cont.): The Bahag's text is that Rava's wife said, "I know that this woman says the name of Hash-m for no reason." This means that she swears and does not keep her oaths. For example, she swears she will not eat and she ends up eating. Rava made the other person swear. Even though one can say that she meant to keep these oaths when she swore, she is still suspected to lie.