Shabbat Parashat Balak| 5770

Tamuz 8-14, Makot 16-22

This week in the Daf Hayomi we continue learning the third chapter of Makot, which deals with the punishment of lashes. The Torah states: "and if the wicked man shall be found deserving of being beaten, the judge shall make him lie down and he shall be beaten before him, in accordance with his wickedness, by a certain number. Forty lashes he shall hit him and not exceed…" (Devarim 25, 2-3). It seems explicit that the punishment is forty lashes. However, the Mishna (22a) quotes a dispute regarding this.  According to the Tana Kama, only 39 lashes are issued, while according to Rav
Yehudah, 40 are issued. The Mishna adds that the person's health is checked to see how many lashes he can tolerate, and, if necessary, the number of lashes is reduced. The Halacha follows the Tana Kama (Rambam Sanhedrin 17, 1).

How can we explain the opinion of the Tana Kama, which seems to be in contradiction to what the Torah explicitly states? The Gemara (22b) says that the two verses should be read continuously; "by a number of forty." According to this, the Torah refers to the number which adds up to and completes forty, which is 39. Nevertheless, we still must ask why the Torah didn't just write 39?

The Rosh (Pesachim 10, 40) offers an original answer to this question. He explains that, whenever the Torah mentions a number that is one off from being a multiple of ten, the Torah rounds it up to complete the ten. This is why the Torah states 40 even though only 39 are issued. This is also why the Torah states regarding Sefirat Ha'omer "count 50 days" (Vayikra 23, 16) even though only 49 are counted. And this is why The Torah states that the family of Ya'akov was 70 people (Bereishit 46, 27) when they were really only 69 (although see Ibn Ezra 46, 23 who rejects this explanation regarding this point).

The Rambam (Perush Hamishna Makot 3, 11 and Sanhedrin 17, 1) explains the intent of the Mishna and the Gemara in a completely different fashion. He explains that the Torah first states that he should be hit "in accordance with his wickedness by a certain number." The Torah means that a proper number of lashes should be determined, according to his health and ability to receive them. Then the Torah states "forty lashes you shall hit him do not exceed." In other words, at the most, forty lashes may be issued, and one is prohibited from exceeding this. According to this, there is no obligation to issue specifically 40 lashes, but rather that is the maximum amount. However, if the one appointed by the court to issue the lashes shall exceed 40, he would transgress the prohibition of exceeding forty. The Sages therefore instituted that no more than 39 lashes should be issued, so that, even if a mistake would occur, and an extra lash would be issued, the prohibition of exceeding forty would not be transgressed.