Explanation #1: That seeing [at night] is like testimony, and we do not accept testimony at night;

So it is proven in Rosh Hashanah (25b) that acceptance of testimony is like the beginning of judgment, and [during the] daytime, which is proper for acceptance of testimony, they can judge based on what they see during the day, for hearing should not be greater than seeing. (Since one may judge based on testimony that he hears, all the more so he may judge based on what he himself saw!)

Explanation #2: [This is unlike] the Rashbam explained, that if they accepted testimony that was said in front of them at night, they judge the next day based on that testimony. They need not testify again in front of them during the day.

Explanation (Rashbam): This is only if they entered to visit, but if he invited them to testify, after this they cannot judge, even if others will testify in front of them, for they are witnesses, and a witness cannot become a judge.

Source #1 (Rashbam): It says in Makos that R. Yosi holds that if one of them was found to be a relative or Pasul, the testimony of all of them is Batel. (He is considered a witness even though he never testified);

Also according to Rebbi, when they say that they came to testify, the testimony is Batel, and Rav Nachman rules that the Halachah follows Rebbi, and we hold like Rav Nachman in monetary laws;

The case in Rosh Hashanah, in which we seat from their colleagues by the individual, discusses when they did not go initially to see, for if so, later an individual (one of the three) could not be a judge.

Source #2 (Rashbam): In a Teshuvah, Rashi inferred that there is no need to say "you are witnesses about me", for if he said "be witnesses about me", why may they judge if they want? He explicitly made them witnesses!

Implied question: Rashi explained that he can be a judge when they saw at night, since witnesses testify in front of him!

Answer: It is worse when he intends to testify.

Question: When the Gemara asks (Rosh Hashanah 25b) [why do] we seat from their colleagues? They should stand in their places and be Mekadesh, for hearing should not be greater than seeing...

Why don't we answer that the case is, they intended to testify, so they cannot become judges?

Answer: If they intended, the individual could not become a judge.

Objection #1: His Perush is wrong. The reason why a witness cannot become a judge is either because it is testimony that cannot be Huzam, for since they themselves are witnesses and judges, they will not accept Hazamah about themselves...

Or, it is because we require 'v'Amdu Shnei ha'Anashim" - these are the witnesses; Lifnei Hash-m - these are the judges, but the witnesses themselves cannot return and sit and judge;

Based on these reasons, we should not disqualify one who intended to testify, rather, only a witness who testified.

Rejection of Source #1: There is no proof from Makos. There, a Gezeiras ha'Kasuv equates three to two. Even if they are 100, if one of them is found to be a relative or Pasul, the testimony is Batel.

Objection #2 (Ri): The Rashbam compares "a witness cannot become a judge" to "one of them is found to be a relative or Pasul." If so, according to R. Yosi, who holds that through mere sight, without intent for testimony, if one of them is found to be a relative or Pasul, the testimony is Batel, similarly, he cannot become a judge;

If so, he does not hold "hearing should not be greater than seeing." In Rosh Hashanah, we asked simply that hearing not be greater than seeing. This connotes that no one disagrees!

Strengthening of Objection: Rav Yehudah contradicts himself. In Makos (6a), Rav Yehudah rules like R. Yosi, that through mere seeing he becomes a witness, and a witness cannot become a judge;

If so, how can Rav Yehudah say that if they want, they do judgment? They became witnesses, even though they did not intend!

Resolution #1 (Ri): Rather, surely we cannot compare ["a witness cannot become a judge" to "one of them is found to be a relative or Pasul"].

Resolution #2 (Ri): Also there, through mere intent, that at the time they saw they intended to testify, their testimony is not Batel. [It is Batel] only when they testify afterwards in Beis Din.

Proof: If you would not say so, no Get or Kidushin is Kosher when it is given in front of relatives, if they intended to testify!

Implied question: Why does it say "what will two brothers do if they saw someone murder?!" (What is difficult?) Their testimony is Batel only when they testify afterwards in front of Beis Din!

Answer: Sometimes this brother does not know that his brother testified, and [also] he testifies [and then the testimony is Batel].

Implied question: Initially, we wanted to say there that through mere seeing, without testifying, they are disqualified if one of them is found to be a relative or Pasul, since we asked "the murder victim should save (the murderer from death, for he is a Pasul witness)! The Nirva (the passive party in Mishkav Zachar) should save. The murderer or Rove'a (the active party in Mishkav Zachar) should save!" (They should invalidate the testimony, even though they will not testify!)

Answer: According to the conclusion, we must say like Rava concludes, that the Torah said "Yakum Davar" - the Torah discusses those who establish the matter, i.e. witnesses, for the matter is established through them - [if one is found to be a relative or Pasul, the others] are disqualified only when they testify in Beis Din and establish the matter.

Explanation: This refers to a witness who testifies, and it is only [for testimony] mid'Oraisa, but mid'Rabanan he may become a judge, like is proven in Gitin (5b) and Kesuvos (21b);

Implied question: R. Akiva says in Bava Kama (90b) that they are all witnesses, and even a witness who sees cannot become a judge!

Answer: This is only regarding capital cases, like is proven in Rosh Hashanah (26a). It explains the reason - since he saw him kill, he will not see merit for him [to acquit him].

Question: In Makos (12a) it gives a different reason!

Citation (12a - R. Akiva): What is the source that if a Sanhedrin saw [someone kill], they do not kill him until he stands in Beis Din? It says "Ad Amdo Lifnei ha'Edah l'Mishpat" - until he stands in another Beis Din.

Answer: The Drashah in Makos is primary. The Gemara in Rosh Hashanah means only that we do not learn other laws from it. Only for capital cases a witness who sees cannot become a judge, due to "v'Hitzilu ha'Edah."

Question (Ri): If so, every Matanas Shechiv Mera of all [his property], or one who commands [to give away his property] because he expects to die, we should be concerned lest he retracted!

Suggestion: Perhaps this is true, and [the recipient] needs witnesses that [the giver] did not retract until he died!

Rejection #1: In Bava Metzi'a (19b), it says that if there was a first [recipient] and a latter, the latter acquired, and the first did not acquire;

Inference: If there was not a latter, the first acquired, even though we do not know whether he retracted!

Rejection #2: It says (152a) that a gift document is Mevatel an [earlier] gift document!

Answer: Rashi explained that he asks that since he can retract and be Mevatel the Din (ruling), it is not a Din. Even though he did not [yet] retract, we are concerned that he will retract.

Rebuttal (Ri): If so, [Rav Kahana] should have asked "he can retract"!

Correct Interpetation: We should not make a Din out of concern that he may later retract and result in having exerted Beis Din for no reason..

Implied question: No one argues about half (143a - if one told his wife 'my property is to you and your sons', she gets half, and her sons get half. Why do we need to rule like Rav Yosef?)

Answer: We need to rule like Rav Yosef because Abaye challenged him.

Question: Rav Yosef properly answered Abaye!

Answer: One might have thought that because Rav Yosef forgot his learning, his answer was not proper. [The Gemara] teaches that this is not so.

Suggestion: We can prove from here that the Halachah follows Rabah against Rav Yosef in the entire Gemara (except for these three Halachos), for here we rule [like Rav Yosef] even in a matter about which Rabah did not argue!

Rejection: Presumably, it comes to teach only that the Halachah does not follow [Rav Yosef] only in our Masechta, for these three [Halachos in which we rule like Rav Yosef] are in Bava Basra.

Observation: However, we can prove from Gitin (74b, that these are the only exceptions in the entire Gemara), for it says "we hold that the Halachah follows Rabah, and in this, the Halachah does not follow R. Shimon ben Gamliel";

Inference: It did not say "in this, the Halachah follows Rabah", like it said regarding R. Shimon ben Gamliel. This connotes that in the entire Gemara, the Halachah follows Rabah.

Consequence: In Bava Kama (56b), Rabah and Rav Yosef argue about a Shomer Aveidah. The Ri says that the Halachah follows Rabah, that he is a Shomer Chinam. This is unlike others who rule like Rav Yosef. There, we explained.

Question: The Rashbam's Perush is difficult. He explains that "in the grave" refers to his wife. Her husband does not inherit her if property fell to her after she died.

We cannot explain like this "even a woman [regarding] her son" to teach that a son does not inherit his mother when she is in the grave;

This is wrong, for a son inherits his mother when she is in the grave, when she died in the life of one who bequeaths to her, like it says above, and also below, we include the son of the daughter (he inherits what his mother inherited from her father).

Explanation: If we explain regarding a husband's inheritance, that he does not inherit [his wife] when he is in the grave, to bequeath to his brothers, "even a woman [regarding her son]" is fine. A son does not inherit his mother when he is in the grave, to bequeath to his paternal brothers.

Question: Why is the law of a husband [in the grave] more obvious to him than the law of a son?

Answer #1 (Rivam): The law of a husband is more obvious because She'eirus (the marriage bond) ceased through death, like through divorce.

Rejection: It says in Yevamos (55b) that also after death, she is called She'eiro!

Answer #2 (Ri): The reason is because the law that one inherits in the grave to bequeath to his relatives only through Mishmush, and below we learn Mishmush from "u'Ven Ein Lo", i.e. those who inherit due to kinship;

However, a husband, who does not inherit [his wife] due to kinship, we do not find Mishmush.

Question (Rashba): If so, why do we need a verse above to teach that a husband does not inherit his wife regarding Ra'uy, until we learn from Pinchas? We should know because we do not find Mishmush in an inheritance that comes through She'eirus!

Answer (Rashba): This is the reasoning of the Rashbam, who mentioned inheriting the wife when she is in the grave;

Surely he should have said that the husband is in the grave! He did not explain so, for he holds that this itself we know only from what we find that he does not inherit his wife when she is in the grave, like we learn above from the verse of Pinchas;

Granted, [death] is not totally Mevatel She'eirus, like it says in Yevamos. In any case, due to She'eirus in the grave, we find that he does not inherit. Therefore, he should not inherit when he himself is in the grave;

Similarly, a son, even though he inherits his mother when she is in the grave, since it says v'Ein Lo, in any case he does not inherit her mother when he is in the grave to bequeath to his paternal brothers, for we learn from a husband (who does not inherit when he is in the grave).

Observation: Below (159b), we learn from another verse. It says Sivah (diverting inheritance) regarding the son, and it says Sivah regarding the husband...

And we learn from another verse that a husband does not inherit Kofer of his wife (if an ox killed her), in Bava Kama (42b);

It explains the reason there, because [Kofer] is Ra'uy. It is paid only after death.

Explanation (Ri): Also damages (paid to her), and a loan that she gave, according to the opinion that considers it Ra'uy, because they are not from people who bequeath to her, require another verse.

In Bava Kama (42b DH v'Havah) I explained that we could not learn from other cases of Ra'uy from Kofer, for one might have thought that Kofer is different, for it is always Ra'uy, and we cannot learn Kofer from inheritance, because the wound occurred in her lifetime.

Question #1 (Ri): If so, also a man diverts inheritance from Shevet to Shevet, if he marries [a woman] from another Shevet, and he dies, and his son inherits him, and afterwards his son dies, and his wife, who is from another Shevet, inherits him!

Why did the Torah warn a woman "v'Chol Bas Yoreshes Nachalah" more than a man?

Question #2: If when there is no father, the mother inherits, if so inheritance will not pass through Mishmush to the father's relatives. (Maharsha - Tosfos does not want to say that this is when also the mother died, for if Mishmush applies, it is as if he is still alive, so this is even when the mother is alive.) Below (115b), we learn from a verse Mishmush of inheritance (it is mid'Oraisa)!

Suggestion: Both (parents) inherit the son (each gets half).

Rejection: (The Torah says that his family inherits him.) The mother's family is not called family!

Answer (R. Tam, Ri): Regarding a convert, it says that she inherits her son. We do not say that [after he dies without children] his property is Hefker.