Scott,

We discussed your question, and related issues, in our Insights to the Daf there (www.dafyomi.co.il/makos/insites/ma-dt-22.htm ). I copy below we wrote on the issue.

Best wishes,

Mordecai Kornfeld

Kollel Iyun Hadaf

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3) FORTY LASHES MINUS ONE

QUESTION: The Gemara quotes Rava who comments how foolish people are who stand up for a Sefer Torah but not for one who learns the Torah. They should respect the Chachamim more than the Sefer Torah, since the Sefer Torah says that Malkus is comprised of 40 lashes, and the Chachamim stated that only 39 lashes are administered (alleviating some of the suffering of the person being punished).

What does the Gemara mean when it says that the Chachamim decreased the number of lashes by one to 39? The Mishnah (22a) states that it is the Torah's own intention that 39 lashes be given and not 40; it was not the Chachamim's innovation!

ANSWERS:

(a) The Gemara may be understood in a straightforward sense based on what the Gemara in Kidushin (66a) teaches. The Gemara there says that Yanai ha'Melech made a decree that all of the Chachamim should be killed. At that time that his advisors suggested that he kill the Chachamim, he wondered what would happen to the Torah if there are no Chachamim. He was answered that "the Torah is resting over there -- whoever wants can come and learn it." The Gemara says that by accepting this claim, Yanai expressed heresy. While the Torah she'Bichtav will endure, Torah she'Ba'al Peh will not endure without the Chachamim. This principle is referred to in the Gemara in Sanhedrin (99b), where the Gemara says that one who says that we have no need for the Chachamim is an Apikorus.

It is to such people that Rava is referring when he says that those who stand for the Sefer Torah but not for the Chachamim are foolish. Rava is saying that all of the Derashos of the Torah, such as the Derashah which teaches that we give 39 lashes and not 40, are part of the Mesorah of Torah she'Ba'al Peh. Therefore, those who do not give respect to the Chachamim as they do to the Sefer Torah are foolish, for without the Chachamim, one would not know how to understand the Sefer Torah. It is the Chachamim who teach us how to understand the Torah, sometimes even providing rulings that seem, at first glance, more lenient than what the Torah says.

(The question of whether the Derashos of Chazal are considered part of Torah she'Bichtav or Torah she'Ba'al Peh is, according to some, a Machlokes Amora'im in Gitin 60b. See MAHARSHA and GILYON HA'SHAS there. See also RASHI to Sukah 31a, DH Lo Makshinan.)

(b) The YAE'AROS DEVASH (2:11) suggests that the Gemara can be explained based on the Midrash (Bamidbar Rabah 5:5), which says that the 40 lashes of Malkus correspond to the 40 days that Moshe Rabeinu was on Har Sinai receiving the Torah. One who transgresses the Torah which was given to Moshe in 40 days is punished accordingly with 40 lashes. However, according to Rebbi Akiva's opinion that the Torah was given on the seventh of Sivan and Moshe ascended on the following day, he was only there for 39 days, until he came down on the seventeenth of Tamuz. According to that opinion, Hash-m originally told Moshe that the Torah would be given on the sixth of Sivan but Moshe delayed it for one day until the seventh of Sivan and Hash-m agreed with his decision, as the Gemara relates in Shabbos (88a). Because the Torah was actually given to Moshe in 39 days, a person who transgresses the Torah receives only 39 lashes! The Torah, though, writes that Malkus is comprised of 40 lashes based on what should have been had Moshe not pushed off the day of Kabalas ha'Torah. (Since Hash-m knew that Moshe Rabeinu would delay the giving of the Torah by one day, Hash-m provided a hint, through a Derashah, that only 39 Malkus would actually be given)! Thus, it emerges that since Moshe Rabeinu delayed the giving of the Torah for one day and Hash-m agreed, one who transgresses the Torah receives only 39 lashes. This is what the Gemara means when it says that people should respect the Chachamim at least as much as the Torah, because the Chachamim caused the Torah to require only 39 lashes, while the Torah itself would have required 40 lashes.

(c) The RAMBAM seems to provide an original answer to our question. The Rambam writes (in Hilchos Sanhedrin 17:1) that in truth the Torah considers it fitting for a person to receive 40 lashes. However, the Chachamim said that even the healthiest person is given only 39 Malkus, so that if one lash is accidentally added, we still will have given him only 40 lashes, which is an appropriate amount. According to the way that the KESEF MISHNEH and others understand the Rambam, the Rambam seems to be understanding Rava's statement literally, that even the Chachamim who argue with Rebbi Yehudah in the Mishnah agree that there should be 40 lashes mid'Oraisa, and that mid'Rabanan the number was decreased to 39 as a form of a "Seyag," a protective measure (by stating, "Lo Yosif...," the Torah is telling us to take precautions not to give extra lashes). Further support to this can be adduced from the Mishnah's expression, "They estimated that he can receive 40," implying that Beis Din can evaluate a person as being fit to receive 40 lashes, and not just 39.

This is also evident from the words of the Rambam in Perush ha'Mishnayos here (and from what he writes in Hilchos Sanhedrin 17:4; see OR SAME'ACH). The Acharonim point out that strong support for this view can be found in the Midrash Rabah and Midrash Tanchuma (end of Parshas Korach). The Midrash says that mid'Oraisa there are 40 lashes, but the fortieth lash is not given in order for us not to transgress "Lo Yosif"; the Chachamim decreased the number of lashes to 39 because of "Lo Yosif."

There are a number of difficulties with the Rambam's explanation.

1. In the Mishnah, the Chachamim learn that there are only 39 lashes from a Derashah from the verse, "b'Mispar Arba'im." How, then, can the Rambam say that the number 39 is only mid'Rabanan? (SEFER HA'CHINUCH, Mitzvah 594)

The LECHEM MISHNEH answers that according to the Rambam, that Derashah teaches only that 40 lashes is the maximum , and is not the required amount. Since the Torah does not require that we give 40 lashes, but rather as many lashes as the Chachamim see fit to give up to 40, the Chachamim have the right to diminish the maximum number by one and never give more that 39 lashes. This also seems to be the intention of the Rambam in Perush ha'Mishnayos (see KAPACH edition).

2. The Mishnah says that the number of lashes must be divisible by three. How, then, can the Malkus mid'Oraisa be forty?

The answer to this question is that according to the Rambam, just as Rebbi Yehudah holds that although lashes must be divisible by three, it is a Gezeiras ha'Kasuv to give a fortieth lash if the person is strong enough to withstand it, so, too, according to the Chachamim there is a Gezeiras ha'Kasuv stating that we may give a fortieth lash. (See MINCHAS CHINUCH.)

3. If we are concerned with giving an extra lash, then when the Beis Din assesses that the person can receive 18 lashes, they should not give 18, lest they add an additional lash above their assessment! (See PORAS YOSEF, MINCHAS CHINUCH.)

We may answer that the Chachamim were not concerned that the Shali'ach of Beis Din would give an extra lash if there is a chance that that lash will kill the transgressor. In such a case, the Shali'ach Beis Din will see that the person is about to die and will avoid hitting him further. They were concerned only that he would give an extra lash when the transgressor is exceptionally strong, and even if he is given more than 40 lashes he will not be in danger of dying. In such a case, the Shali'ach Beis Din will not be bale to discern that the additional lash is inappropriate.