Opinion#1: Rabeinu Tam says that being that the Gemara does not decide which opinion is correct, if it is not clear that there was ever money owed we do not make him swear because of this doubt. This is because we apply the principle that whoever wants to take money from his friend must bring proof to this effect. Even so, Rabeinu Tam would not protest when judges would make someone take an oath in this case (the claimant says the defendant owes money, and the defendant denies there is any truth whatsoever to his claim).

Opinion#2: It seems that making him take an oath is appropriate, as some say that the second version of the discussion is always secondary to the first version of the discussion, as stated by the Riva.

Opinion#1(cont.): However, Rabeinu Tam says that in such a situation we should follow the lenient opinion.

Implied Question: This (that the first version is considered the main version, see Maharsha) is also implied in Bava Metzia (5a) regarding the incident with the shepherd, where Rav Nachman's statement is quoted as discussing the first part of the Mishnah (as per the first version of our Gemara). (How, then, can Rabeinu Tam say we follow the lenient version and not the first version?)

Answer: Rabeinu Tam pushes this aside, as one can say that the Gemara there merely quoted what was said first. It also asks from the second part of the Mishnah, that we make him swear where there is clearly money that was owed. In that case there was also clearly money owed (at one point), as they used to give him their sheep to watch every day.

Answer: Additionally, there were witnesses who saw he ate two of the sheep.

Opinion#3: Rav Hai Gaon explains that while we do not make him swear, we do put him in conditional Cheirem (excommunication). In other words, we say that if he is liable and does not pay, he is in Cheirem.

Opinion: In Kesuvos (88a), Rav Papa states that if he was smart (the Bach takes out Nachman and Shimon, as they are not in our text), he would make the other side take a Shevuah according to Torah law. Rashi explains that this is because while someone has to hold a holy object during an oath according to Torah law, he does not have to do so while taking a Rabbinic oath.

Question#1: This does not seem correct, as this difference is not stated in our Gemara.

Question#2: Additionally, in Gitin (35a) regarding a widow, Rav Yehudah says he should make her take a vow in Beis Din, and make her swear outside of Beis Din. Rashi himself explains that she does not want to swear in Beis Din because she must take a holy object in her hand. This is despite the fact that an oath regarding a widow (the collection of her Kesuvah) is Rabbinic (and is seemingly unlike Rashi's position here).

Question#3: In Kesuvos (87b), Rashi explains regarding Rami bar Chama's thought that Shevuah is a Torah law that the difference is regarding making the other person (who is not supposed to) take the oath. (Rashi does not differentiate between whether or not he must hold a holy object in his hand.)

Opinion#1: The Rivan says in the name of Rashi that the Halachah follows Mar bar Rav Ashi regarding reversing an oath. This is also stated in the responsa of Rabeinu Gershom "Me'or Ha'Golah" -- "Light of the Exile" and by Rav Hai Gaon.

Proof: He proves that the Halachah is like Mar bar Rav Ashi from the fact that the Gemara later (41a) says that if someone takes out a loan document and the defendant says, "Swear that I did not pay you," we ask the claimant to swear. If in that case where the defendant clearly owes money (based on the document) according to Torah law, the defendant can change this into a case where the claimant must take an oath, certainly where the defendant only owes a Torah oath he can make the claimant swear!

Observation: According to his words, whoever argues on Mar bar Rav Ashi will certainly disagree with the law quoted above that is brought later in the Gemara.

Implied Question#1: However, the Gaonim argue regarding the Gemara later, whether if when the defendant says, "Swear that I did not pay you," the claimant can turn around and say, "You swear to me and you will not have to pay." If the claimant can say this, there is no proof to Rav Hai.

Implied Question#2: Additionally, the cases are not similar. In the Gemara's case later, the Rabbanan certainly decreed this because it is common that after a loan has been paid, the loan document languishes in the hands of the lender. This is as stated in Bava Metzia (16b) that the person is avoiding the claim, as he tells him that he will give him the document tomorrow as he does not presently have the document. Alternatively, the lender wants the value of the document (i.e. the parchment). However, regarding a Torah oath, why should they decree that it should be turned around? This would mean that the Gemara later is even according to the opinion that argues on Mar bar Rav Ashi.

Opinion#2: Rabeinu Yitzchak found in the earlier responsum that we do not turn around a Torah oath. This is also the opinion of the Bahag. The Seder Tanaim v'Amoraim says that we always rule like Mar bar Rav Ashi aside from in this case of turning around a Shevuah and in the case of Odisa (an admittance document).

Implied Question: However, the Seder Tanaim v'Amoraim's statement that the case of turning around a Shevuah is when the person who is supposed to take the oath cannot because he is suspected of lying, and that Mar bar Rav Ashi holds that the oath is therefore given to the other party, does not appear correct.

Implied Question(cont.): We only discuss someone who is suspected of lying later when the Gemara says that the difference between them is someone who is suspected to lie.

Observation: Rather, the case is as stated by Rashi, that the defendant says to the claimant that he should swear and take the money.

Opinion#2(cont.): The Rach also rules that the law is like Mar bar Rav Ashi throught the Gemara, aside from the case of turning around a Shevuah and "white" (see below). The sign that it is these two cases is, "he turned white." "White" in Chulin (76b) is regarding a case of the "Tzomes ha'Gidin" -- "intersection of the sinews." Mar bar Rav Ashi says there that even if they are slightly white, and not totally white, they are considered part of the Tzomes ha'Gidim.

Question: This is slightly difficult. The Rabbanan are only discussing a case that is considered stealing because of "Darchei Shalom" -- "keeping the peace." However, where there is actual stealing involved, they will agree that we go and take from his property. The same should also apply regarding a Rabbinic Shevuah.

Question: Rav Acha should ask this on our Mishnah (45a) that says that one who comes to collect from the possessions of orphans may only do so with a Shevuah! The reason for this is that perhaps if their father was alive he would claim and say, "Swear to me!" This implies that the defendant can make him swear.

Answer: It seems that this is not the reason (why we make claims for orphans). Even if their father could not make this claim, we (Beis Din) make claims for the orphans.

Proof: This is apparent from Kesuvos (86b) where we say that if he wrote to his wife, "Clean (are you from taking) the vow, clean (are you from taking) the oath" she can only collect from the orphans with an oath. This implies that the Rabbanan instituted to make claims for the orphans even if their (dead) father could not have forced his wife to swear.

Implied Question: According to Rav, the Mishnah should have inserted at this point in the Mishnah that Rabban Gamliel argues, as it did later in the Mishnah regarding a case where the claim was for wheat and the admission was for barley. Similarly, Rabban Gamliel should have been inserted now according to Shmuel (40b). Shmuel says that the Mishnah means that when a person claims two Kesef and the defendant says he only owes a Perutah, the admission is not relevant to the claim (as it is from a different type of item). (Why did the Mishnah wait until later to discuss Rabban Gamliel's position?)

Answer: Rather, the Mishnah waited until the Rabbanan were done with their statements, and then quoted Rabban Gamliel who argues on all of them.

Question: One must try to understand why we need so many cases in our Mishnah.

Answer: Regarding some of them we indeed say that because a previous case was stated, this case was stated as well.

Implied Question: There is no difficulty according to Shmuel. (Why not?)

Answer: This is because he can answer that when the Mishnah says, "I gave it to you" it means in front of Ploni and Ploni, and they went overseas.

Answer(cont.): Based on our explanation that Shmuel holds one is believed to say he paid without witnesses with a Migu that he could have said I paid you in front of Ploni and Ploni, it is even more understandable. (It is more understandable, as this more simply fits into the explanation of the words, "I gave it to you (implying without witnesses)," as this is exactly what he is saying.)

Question: Why is this difficult? Perhaps his claim is that he paid without witnesses, and this is why he is liable? (After all, Shmuel only says he is exempt when he says that he paid in front of witnesses who went overseas!)

Answer: Shmuel means that being that he can claim that he paid in front of witnesses who went overseas, if he says that he paid privately he should also be believed with a Migu (that he could have said he paid in front of witnesses who went overseas).

Implied Question: However, Rav Papa later clearly does not hold of this Migu, as he says later that one must actually pay with witnesses. (How can we answer Shmuel according to Rav Papa?)

Answer: One is pressed to say according to this explanation that Rav Papa and Shmuel argue regarding the words of Rebbi Yehudah ben Beseirah (quoted later in our Gemara).

Question: There is another difficulty. Why does the Gemara ask a question on Shmuel from the second part of the Mishnah? How does the Gemara know that this is the explanation of Shmuel's statement, especially after Rav Papa clearly indicates that he does not agree with this understanding?

Answer: It therefore appears that the questioner in the Gemara understands that the Mishnah's statement, "Because the borrower must give him the money in front of witnesses," implies that it must be made clear that he paid with witnesses. This is slightly implied throughout this Gemara.

Opinion: Rabeinu Tam says that this is the Halachah.

Proof: This is as Rebbi Abba says in Bava Basra (170a) that we hold that someone who lends money to his friend with witnesses does not have to pay back his friend with witnesses. Rava and Rami bar Chama also hold this way in the Gemara later (45b).

Opinion#1: Rashi explains that the lender claims that these are false witnesses.

Question: How is the lender believed to say they are liars?

Answer: Being that he said, "In front of Reuven and Shimon" the borrower meant that he accepts that as long as the lender claims that he was not paid he has a good claim, unless he pays in front of Reuven and Shimon, as explained later.

Implied Question: However, the Gemara later which says that he specifically said, "In front of Reuven and Shimon" in order that he should not push him aside (and claim he paid when he did not) is not compatible with Rashi's explanation.

Implied Question(cont.): How is pushing aside (i.e. claiming he paid by himself) relevant here? He is bringing witnesses! The Gemara should have said that the lender said this in order to ascertain that the borrower would not be exempt if he brings other witnesses.

Opinion#2: This is why the Ri says that the case is where he says he paid in front of witnesses who have now went overseas.

Opinion#2(cont.): There are commentaries that indeed write this explanation. This is also the explanation of Rabeinu Chananel.

Explanation: He answered jokingly, and not because he must fulfill his condition.)

Explanation: Abaye does not agree with this rule.

Implied Question: When the Mishnah says that when the lender asks him the next day for the money and the defendant claims he does not owe anything, he is liable to pay. The reason apparently is because he said he never borrowed, it is as if he admits he has not paid. (This is unlike Abaye!)

Answer: In the Mishnah, there are not witnesses who say that he paid as there are over here. This is why Abaye himself holds in Bava Basra (6a) that whoever says that he did not borrow etc., being that there are no witnesses that he paid. (In other words, Abaye does agree with this rule when the witnesses do not also say that he paid, as they do in our case.)

Question: Why don't we answer that when he says he did not borrow he means that he did not remain as a borrower, but rather he paid his debt? This is akin to the Gemara in Kerisus (12a) that explains that when a person says, "I did not become impure," he could very well mean, "I did not remain impure, but rather dipped in the Mikvah."

Answer#1: The Riva answers that in our Gemara he is clearly not just saying that he didn't borrow, but rather that he totally denies ever borrowing. This means that one cannot explains his terminology as meaning anything else.

Question: However, there is a difficulty from the Gemara in Kesuvos (88a). The Gemara says that if orphans say that their father told them before he died that he never borrowed money from a specific person (and that person has a loan document proving otherwise), he can collect from them without an oath. This is because whoever says they did not borrow is as if they say they did not pay. (Why don't we interpret his words as meaning that he did not remain a borrower, but rather paid his debt?)

Answer: It is possible to say that while their father could claim that this was the intent of his words, we do not claim for the orphans something that is uncommon.

Answer#2 (to d): Additionally, it is possible to differentiate that when people are claiming money from him in Beis Din, it is up to him to answer back in a way that he will be found innocent. We have no responsibility to explain his words.

Question: This is difficult. The Gemara in Bava Basra (170a) discusses an incident where Rav Yitzchak bar Yosef lent money to Rebbi Abba. The Gemara says that even though we say that if someone lent money with witnesses the borrower does not have to pay back with witnesses, if he says that he paid in front of witnesses he must clarify that fact and bring them to testify. Why? Why don't we say that he wasn't even careful to think whether he indeed had paid with witnesses being that he did not have to pay in front of witnesses (as we do here)?