Strengthening of question: Also, it is not considered testimony, for we expound "from [the witnesses'] mouths, and not from what they wrote"!

Rashi explained in his Perush on Chumash that this teaches that witnesses cannot write their testimony in a letter, and send it to Beis Din.

Answer #1: Chachamim enacted that it is considered testimony, in order to be Mevatel Chazakah through even a small level of testimony. We are Mevatel a Chazakah through a small matter;

Even if it becomes clear to us that the Machazik did not hear the Mach'ah, it helps to be Mevatel the Chazakah.

Also Moda'a is an enactment of Chachamim to save one from Ones (and they were Machshir written testimony for it).

Also validation of documents is an act of Beis Din, and all acts of Beis Din may be written without the consent of the one whom they obligate.

Answer #2: The Ri heard from R. Tam that witnesses are accustomed to send their testimony in a letter to Beis Din, and it is considered testimony;

Implied question: We expound in the Sifri "from [the witnesses'] mouths, and not from what they wrote"!

Answer: This comes to exclude only a mute, who cannot testify [verbally]. However, for one who could testify, [verbal] testimony is not Me'akev.

Implied question: It says in Kesuvos (20a) "one may write his testimony on a document, and testify about it many years later, if he remembers it himself, but not if he does not remember it! (According to R. Tam, if he could testify, also his written testimony is valid. Why must he remember it?)

Answer #1: This is when he does not show in Beis Din what he wrote.

Answer #2: Perhaps one witness in writing is not considered a document, because a document is only with two witnesses. Therefore, it does not help in the case in Kesuvos, even if he shows in Beis Din what he wrote, unless he remembers through seeing the [written] testimony.

Question: This requires investigation regarding one written witness below (165a. Abaye and Ameimar argue about whether a Get is valid if one witness signed and one witness testifies orally that it is valid.)

Question: What is the Chidush that he need not say "write"? This is obvious, since it is advantageous for him!

Partial answer: Regarding Mach'ah, we can say that it mentioned 'he need not say "write"' just like it said so regarding the others [for parallel structure]. Regarding Mach'ah, the Chidush is that it is in front of two;

However, regarding Moda'a, this is difficult. Why did it need to teach [that he need not say "write"]?

Full Answer: We can say that it teaches that even though he did not command them to write, and they wrote that he commanded, it is Kosher. It does not look like Sheker, for presumably this is why he made a Mach'ah or Moda'a in front of them, in order that they will write!

Explanation (R. Tam): This does not come to exclude only that it is not considered a Kinyan when it is done not in front of two [for Kinyan does not need witnesses].

Source #1: We say in Kidushin (65b) that witnesses were created only for liars. (A Kinyan takes effect without any witnesses);

Source #2: We say in Bava Metzi'a (46a) regarding one who was in the granary [and wanted to give his coins to another, so the other could redeem it without adding a fifth], if coins can be acquired through Chalipin, he should be Makneh to him through a Sudar (scarf)! We answer that he does not have a Sudar.

Citation (46a): He should be Makneh to him Agav (along with) land! [The case is,] he does not have land. It says that he is in a granary (presumably, it is his)! It is not his.

Citation (46a): Did the Tana teach about a naked man who has nothing?! Rather, this teaches that coins cannot be acquired through Chalipin.

Inference: If it is not considered a Kinyan without witnesses, we should answer that there were no witnesses!

Source #3: In Sanhedrin (6a), Rabanan said that compromise can be with a lone [judge], even though compromise requires a Kinyan, like we conclude there.

Explanation: We write without permission, as long as he did not retract.

However, he can retract, like we say below (77a) "acquire this field for Ploni and write the document for him", he can retract [authorization to write] the document, but he cannot retract the field.

Implied question: It says in Kesuvos (55a) [if one said] "write, sign and give to him", and they acquired from him, they need not consult with him [before writing and giving the document];

This is not only because he said to them "write". It is even if he did not say to them, like we say here!

Answer: Rather, because he wants to say that if they did not acquire from him, they must consult with him, even though he told them "write".

Implied question: Rav Nachman himself holds in Sanhedrin (5b) that if two judged, the verdict stands!

Answer: Kiyum Shetaros (validation of documents) is different, like the Rashbam explained.

If there are only two, why is the Kiyum (the judges' signature) any better than the document above it? This has two signatures, and this has two signatures!

This is like two witnesses who heard from the witnesses above that the document is Kosher. Ed mi'Pi Ed (a witness who testifies about what he heard from another witness) is Pasul [for testimony];

However, when there are three, it is recognized that they are a Beis Din, that witnesses testified in front of them about their signatures, and they were Machshir the document. This is like a verdict.

Implied question: It says in Kesuvos (22a) that if three sat to validate a document, and one of them died, they must write "three of us sat together, and one is not..." Rav Nachman said that if it says "Beis Din", they need not [write this].

Citation (22a) Question: Perhaps it was a brazen Beis Din [of two]! Shmuel taught that if two judged, the verdict stands!

The Gemara answers that it says "the Beis Din of Rabanan of Rav Ashi's academy." It asks that perhaps Rabanan of Rav Ashi's academy hold like Shmuel (that two suffice for Kiyum)!

Answer: This does not mean that Shmuel holds that two suffice for Kiyum. Rather, it means that perhaps Rabanan of Rav Ashi's academy hold regarding Kiyum Shetaros like Shmuel holds elsewhere (that two suffice);

However, Shmuel can properly hold that three are needed for Kiyum Shetaros, even though elsewhere, if two judged, the verdict stands, like Rav Nachman taught.

Question: Rav Nachman himself taught in Bava Metzi'a (31b) regarding the episode in which Isur the convert and Rav Safra made a joint business venture [and Rav Safra divided it, without Isur]...

It connotes there that two are not a Beis Din, since [Rav Nachman] said to him "bring three in front of whom you divided, or two of the three"!

Answer: There we discuss when he did not explicitly make them a Beis Din. Rather, he divided in front of them Stam;

Note: It seems to me that Rav Nachman did not know the details about in front of whom he divided! Further, he said "or two witnesses that you divided in front of three." Why didn't he say "in front of Beis Din", if two can suffice? Perhaps this was not in Tosfos' text. In our texts, Rav Safra came in front of Rabah bar Rav Huna.

Therefore, if it was in front of two, it seems that he intended to make them witnesses. If it was in front of three, it seems that he intended to make them a Beis Din.

However, in a case that he explicitly made them a Beis Din, two suffice.

Question: About what is the Moda'a?

If it is about a Get or a gift, this is a mere Giluy Milsa. Surely there is an Ones that prevents him from coming to Beis Din!

If it is a sale, Rava taught that we do not write a Moda'a about a sale!

Suggestion: Rabah and Rav Yosef argue with Rava. (They hold that we write a Moda'a about a sale.)

Rejection #1: Even so, the Gemara should have asked, and answered, like it asks against Neharde'ei below!

Rejection #2: Abaye and Rava themselves both said "even against me and you." If so, we do not discuss a Moda'a of a sale [for Rava holds that we do not write it]!

We cannot say that we discuss a case like the orchard (40b; a lender consumed it for three years due to Mashkanta, and threatened that if the owner will not sell it, he will claim that he bought it and ate the years of Chazakah), for [then] surely we write Moda'a even against one who obeys Beis Din!

Question #1 (Ri): This text is difficult. What was the question "what do they argue about"? They explicitly argue about Stam!

Question #2: Below, we rule that we are concerned in a Stam case. If so, how do we collect all gifts, since [the giver] does not tell the witnesses "write in the market, in public view'?

Answer: Since now the custom is to write in gift documents "he said to us, write this gift in the market, and sign it in public view", therefore even when he said to them Stam, he intends to say like they write in documents;

In the days of the Amora'im, the custom was not to write this. Therefore, he needed to say explicitly "write in the market..."

Alternate text: R. Chananel's text says 'he said to them "do not sit in the market, in public view"';

This is called Stam, for he does not tell them to hide. He says [only] not to publicize. This is Stam, i.e. he did not publicize, and he did not hide them;

However, if he said [only] "write", this is not called Stam. It is Kosher according to R. Chananel's Perush.

Consequence: Our custom to write in gift document "write this gift in the market, and sign it in public view", is merely to enhance the document (to dispel any possible objections).

Disclaimer: The wording [of the Gemara] "Stam" connotes unlike [his Perush].