. The mishna says an artisan can not say about a certain object that he bought it. Rabah says that is only when witnesses were present when the object was given to him to fix. But if there are no witnesses, he is believed - because he could have said it never came to him as an object to fix, but rather he bought it outright in the first place. Abyee asks then even with witnesses [but we do not see the object with him now] he should be believed that he bought it, because he could have said "I gave it back to you." Rabah answered he would then have had to give it back in front of witnesses. [If he received it in front of witnesses, he has to give it back in front of witnesses]
R. Tam asked Abyee should have answered even with witnesses [but not seeing it right now] he still should be believed because he could say the object was stolen or lost in some other way that was not his fault [like lost or stolen for a non paid guard or stolen at gun point for a paid guard].
My question is this seems difficult to say. Why should we should believe him that he bought the object because he could have said "It was stolen" and then have to take an oath. The oath part of it makes the thing that "He could have said" to be not desirable to say.
After I wrote this it occurred to me that the second answer in Tosphot is exactly that. He says that the intention of Rabah is to say this. The Mishna says an artisan can not say he bought the object. Rabah says that is only if he wants to be believed without an oath, but with an oath he is believed. This is when there are witnesses but the object is not seen with him right now. Thus in fact there is this idea he could have said the object was stolen an be believed with an oath. So now also we believe him with an oath. [Still it is hard to understand why this is a question in the first place to the other Rishonim.]
"He could have said thus and thus and be believed so we should believe him when he says a weaker plea." actually came up with me in a case before the Israel Supreme Court when that was the exact reason they acquitted me of wrongdoing in a certain case.
I think that you have to say for R. Tam that the oath in the case where the object was stolen is only from the words of the scribes, not from the Torah. And therefore the fact that a plea of stolen will require an oath from the words of the scribes will not affect the law of the Holy Torah which considers both the case of the artisan that says he bought the object and the case of his saying it was stolen both to be without an oath. So the oath requirement will not affect the fact that the Torah believes him because of "he could have said"
The reason the oath of a stolen object is from the words of the scribes is that to R. Tam, in order for an oath (that something was stolen) to be from the Torah it is needed that there be two objects. One that he admits to and the other the object that he claims was stolen. This you can see in Bava Batra page 70b in Tosphot and also in Bava Metzia page 98a
R. Tam asked Abyee should have answered even with witnesses [but not seeing it right now] he still should be believed because he could say the object was stolen or lost in some other way that was not his fault [like lost or stolen for a non paid guard or stolen at gun point for a paid guard].
My question is this seems difficult to say. Why should we should believe him that he bought the object because he could have said "It was stolen" and then have to take an oath. The oath part of it makes the thing that "He could have said" to be not desirable to say.
After I wrote this it occurred to me that the second answer in Tosphot is exactly that. He says that the intention of Rabah is to say this. The Mishna says an artisan can not say he bought the object. Rabah says that is only if he wants to be believed without an oath, but with an oath he is believed. This is when there are witnesses but the object is not seen with him right now. Thus in fact there is this idea he could have said the object was stolen an be believed with an oath. So now also we believe him with an oath. [Still it is hard to understand why this is a question in the first place to the other Rishonim.]
"He could have said thus and thus and be believed so we should believe him when he says a weaker plea." actually came up with me in a case before the Israel Supreme Court when that was the exact reason they acquitted me of wrongdoing in a certain case.
I think that you have to say for R. Tam that the oath in the case where the object was stolen is only from the words of the scribes, not from the Torah. And therefore the fact that a plea of stolen will require an oath from the words of the scribes will not affect the law of the Holy Torah which considers both the case of the artisan that says he bought the object and the case of his saying it was stolen both to be without an oath. So the oath requirement will not affect the fact that the Torah believes him because of "he could have said"
The reason the oath of a stolen object is from the words of the scribes is that to R. Tam, in order for an oath (that something was stolen) to be from the Torah it is needed that there be two objects. One that he admits to and the other the object that he claims was stolen. This you can see in Bava Batra page 70b in Tosphot and also in Bava Metzia page 98a
