Statement: Here, this is a Machlokes ...

Question #1: Whilst in Perek Af-al-Pi (Kesuvos, Daf 59b [See Tosfos there, DH 'Konamos']), the Gemara says that 'Konamos do not take away from the Shibud of the husband, which the Rabanan strengthened.

Question #2: Similarly, at the beginning of 'ha'Madir' (Ibid., Daf 70a) - it says that 'The Rabanan strengthened the Shibud of the woman, and he cannot be Madir her, when the Gemara asks that, since he is Meshubad to her, how can he be Madir her (Hana'ah), since we learned in the Mishnah 'Konem she'Ani Oseh le'Ficha ... ?'

Question #2: Whereas in Yevamos, Perek Almanah (Daf 66b) in connection with a woolen coat, the Gemara says that the Rabanan did not strengthen the woman's Shibud, but that the coat becomes forbidden when it is spread over the corpse?

Answer: We must therefore say that there are some places where one needs to strengthen the Shibud of the husband and of the wife more than others.

Implied Question: Even though with regard to 'Shen ve'Ayin' he goes out neither for the man nor for the woman ...

Answer #1: That is because the man does not have the power to free the woman's Kinyan ha'Guf ...

Answer #1 (cont.): But as far as the Din of 'Yom O Yomayim is concerned, where he is under his jurisdiction and where he has the power to force him to do his work, it is logical to say that, since 'Kinyan Peiros is like Kinyan ha'Guf', he should also be considered his with regard to the Din of 'Yom O Yomayim'.

Answer #2: And ha'Rav R. Yitzchak b'Rebbi .Baruch answers that according to Rebbi Meir too, the Eved goes out with Shen ve'Ayin for the husband.

Explanation of Sugya: And earlier the text reads 've'Iba'is Eima de'Kula Alma Leis l'hu Takanta de'Usha (this is also the Text of Rashi), u'bi'Pelugta de'Hani Tana'i ... ', and not 've'Hacha be'inyan Peiros ... '.

'le'Ishah ve'Lo le'Ish': And the Beraisa that states 'le'Ishah ve'Lo le'Ish' holds like Rebbi Yehudah ...

'Lo le'Ish ve'Lo le'Ishah': Whereas the Beraisa which says 'Lo le'Ishah ve'Lo le'Ish holds like Rebbi Eliezer, who says that neither is subject to the Din of 'Yom or Yomayim', since he Darshens 'Kaspo ha'Meyuchad lo'.

'Lo le'Ish ve'Lo le'Ishah' (cont.): And here too, we say 'Eved ha'Meyuchad lo', and an Eved Milug belongs to neither of them exclusively ...

Reason: Since one of them owns the Guf and the other, the Peiros, in which case neither is called the owner.

. 'Lo le'Ish ve'Lo le'Ishah' (cont.): And even jointly they are not able to sell him, and similarly, they are not able to set him free.

Conclusion: That the reason that the Gemara says that 'They do not hold of Takanas Usha' - is because even if they sell him jointly, he simply cannot be sold at all (See Mesores ha'Shas).

'Lo le'Ish ve'Lo le'Ishah' (cont.): And if the woman sells the Nechsei Milug and is subsequently divorced, even though it now belongs entirely to her, the purchsaser received nothing of it ...

Reason: Because when she sold it, it was like a person selling something that is not his.

Conclusion: Consequently, according to Rebbi Eliezer, Takanas Usha is not applicable at all, since according to him, there is no need for it ...

Conclusion (cont.): Since Takanas Usha is only necessary where, if the woman sells it and is then divorced, it belongs to the purchaser.

Conclusion (concl.): And if she dies, the husband takes it, because the Rabanan give him precedence over the purchasers, as the Gemara explains in 'Yesh Nochlin' (Bava Basra, Daf 139: [See Tosfos there, DH 'Hasam' & Tosfos there 50a, DH 'Kasavar']).

Clarification: It seems that we learn selling ffrom Shichrur, since Shichrur is a form of sale ...

Proof: Because if we would learn it from the Din of 'Yom O Yomayim', why would we shortly need the Drashah of 'Avdo ha'Meyuchad lo' (See Tosfos, Bava Basra, Daf 59b, DH 'Rebbi Elazar)?

Clarification: Rashi explains that it is comparable to a regular partnership ...

Reason: Where each one has a portion in the whole article to take half ...

Reason (cont.): Whereas here, one of them has acquired the entire Eved vis-a-vis the Guf, and the other one, the Peiros (i.e. the usage), in which case, he belongs neither to one exclusively, nor to the other.

Clarification (cont.): And in the same way we will explain the case that is cited shortly of 'An Eved belonging to two partners' - where one owns the body, and the other, the Peiros.

Clarification (concl.): And likewise that of 'A Chatzi Eved ve'Chatzi ben Chorin' - where he (the Eved) paid him his full value and is lacking only a document of freedom that will permit him to marry a 'free woman' (Ibid.).

Clarification: If they saw it in the daytime they may judge according to what they saw, due to the principle 'Hearing should not be better than seeing!' (Rosh ha'Shanah, 25b); But if they saw it at nighttime, they cannot judge based on what they saw

Reason: Because seeing is like the acceptance of the witnesses, which in turn, is like the commencement of the litigation, as is evident in Rosh ha'Shanah (Daf 28b [See Tosfos there, DH K'gon']), which must tak place by day, even with regards to Dinei Mamonos ...

Source: As the Gemara states in Perek 'Echad Dinei Mamonos (Sanhedrin, Daf 34b).

Clarification (cont.): That is why they need to testify again in the day - and since they need to testify, the witness cannot become a Dayan.

Explanation #1: A witness who merely saw however, but who is not testifying - where for example, there are other witnesses testifying before Beis-Din, can become a Dayan, even by Dinei Nefashos, according to the Rabanan.

Explanation #2 (Refuted): Not like the Rashbam, who explains in 'Yesh Nochlin', in the case of - 'Three people who entered Beis-Din to visit' - 'specifically to visit, but if they came to testify, they write but cannot litigate, seeing as they are witnesses, and 'A witness cannot become a judge'.

Explanation #1 (cont.): Whereas according to Rebbi Akiva, even a witness who merely saw what happened cannot become a judge in Dinei Nefashos, as is implied here.

Reason: And the reason for this is as the Gemara in the second Perek of Makos (Daf 12a) citing Rebbi Akiva himself 'From where do we know that if someone who witnesses a murder, they cannot sentence the murderer to death until he stands in Beis-Din (and testifies)? Because the Torah writes " ... until he stands before the Sanhedrin for judgement" - 'until he stands before another Beis-Din' (i.e. he cannot be the Dayan).

Question: In Perek Rauhu (Rosh ha'Shanah, Daf 26a & 26b) the Gemara attributes the reason (that 'Ein Eid Na'aseh Dayan') to the Pasuk "ve'Shaftu ha'Eidah, ve'Hitzilu ha'Eidah", 'and since they witnessed the murder, they will no longer be able to find a merit on his behalf'.

Answer: The reason given in Makos is the authentic one ...

Answer (cont.): And the Gemara in Rosh ha'Shanah is only coming to explain why we cannot learn from it, since Dinei Nefashos are different, inasmuch as they require "ve'Hitzilu ha'Eidah".

Explanation #1 (cont.): And in d'Rabanans, even a witness testifies can become a judge , as is evident in the first Perek of Gitin (Daf 5b) and in the second Perek of Keuvos (Daf 21b [See Tosfos there, DH 'Hanach']).

Reason #1: There are some commentaries who explain that a witness who testifies cannot litigate since it is a testimony which is not subject to Hazamah, because seing he is both the witness and the judge, he will never accept testimony against himself.

Question: However the Ri from Orleans poses a Kashya on this reason in that, by the same token, witnesses who are related to the Dayanim should not be alllowed to testify before them either, since it too, is too, is 'a testimony which is not subject to Hazamah'?

Question (cont.): Only jus as there one can declare them Zomemin in another Beis-Din, so too, is that possible in our case.

Reason #2: The Rashbam therefore explains that it is because the Pasuk writes "And the two men shall stand", and as the Gemara in Shavu'os (Daf 30a) explains, this refers to the two witnesses, and "lifnei Hash-m", to the Dayanim ...

Reason #2 (cont.): Implying that the witnesses must stand before the judges and not that the witnesses themselves should sit and litigate.

Reason #3: And another reason the Ri gives to explain why 'Eid Na'aseh Dayan' is based on the Pasuk "be'Yom Hanchilo es Banav" ...

Reason #3 (cont.): Which implies that it is through his bequeathing by day that the visitors heard from the sick man, who distributed his property to all his sons, that they alot each one his portion ...

Reason #3 (cont.): But not via what they heard at nighttime ...

Reason #3 (cont.): Because what they heard at night-time is not subject to litigation, as Tosfos explained a little earlier

Reason #3 (concl.): And since one cannot litigate on the basis of what they saw at night-time, until they testify by day, they become witnesses, and they cannot testify because 'Ein Eid Na'aseh Dayan' ...

Conclusion: So we see that it is from here that we learn that 'Ein Eid Na'aseh Dayan'.

Explanation of Gemara in Sanhedrin: With this we can understand the Gemara in Perek Echad Dinei Mamonos (Sanhdrin, Daf 34b) - 'And Rebbi Meir, who learns that even the conclusion of the Din can only be performed by day, because Dinim are compared to Nega'im.

Explanation of Gemara in Sanhedrin (cont.): What does he learn from "be'Yom Hanchilo"? And the Gemara learns from it that 'One can only divide up inheritances by day, but not by night', since at night-time one can write but not litigate'.

Explanation of Gemara in Sanhedrin (cont.): The Gemara goes through the Sugya there, concluding with (Rav Chisda's statement) 'Havah leih Eidim, ve'Ein Eid Na'aseh Dayan'.

Conclusion: And the reason that it finds it necessary to cite Rav Chisda there is because the main purpose of the D'rashah "be'Yom Hanchilo" was in order to learn from it 'Ein Eid Na'aseh Dayan', as Rav Chisda explains ...

Conclusion (cont.): Because otherwise, why would Rebbi Meir need "be'Yom Hanchilo" at all?

Conclusion (concl.): And that also explains why the Gemara cites Rav Chisda using the words 've'Amar Rav Chisda', and not 'Amar Rav Chisda', without a 'Vav'.

Explanation #1: Rashi explains that Rebbi Yehudah Nesi'ah holds like Rebbi Tarfon.

Refutation: This is unnecessary however (See Hagahos ve'Tziyunim) ...

Explanation #2: Since he can hold even like Rebbi Akiva ...

Reason: Who does not learn from Dinei Nefashos, as Tosfos explained earlier (See Mesores ha'Shas)..