פירוש על מכות 3:11

אין אומדין אותו וכו' – for all who are flogged in the Jewish court, it was necessary to estimate at the beginning so that he would not die as a result of the beatings, since it is written (Deuteronomy 25:3): “He may be given up to [forty lashes], but not more, lest being flogged further” for if he must lessen it, they lessen it.

Introduction Mishnah ten continues to discuss the number of lashes a person is to receive.

אלא במכות הראויות להשתלש – and we never add to the estimate.

Our mishnah assumes that when the Torah states that a person is to be lashed 40 (39) times, the meaning is that this is the maximum number of lashes any person can receive. Before a person is lashed, he is to be examined by doctors who will estimate how many lashes he can receive without his life being endangered. This estimate is the number of lashes that he will actually receive.

אמדוהו לקבל ארבעים – minus one, but he used the language of the Bible.

When they estimate the number of lashes he can stand it must be a number divisible by three. As we will learn in mishnah thirteen the lashes are divided into three sets, one set on his front and two on his back. Since they are divided into three sets, the number of lashes that the doctors say that the person can receive must be divisible by three.

אמדוהו אומד אחד – for two sets of floggings, such as they estimated for him to receive forty-two [floggings].

If they estimated him capable of receiving forty, and after receiving some they said he cannot receive forty, he is exempt [from the rest]. If they estimated him fit to receive eighteen, and after he was lashed they said he could receive forty, he is exempt [from the rest]. Estimates made by the doctors are not necessarily going to be accurate. If the doctors err the criminal always receives the benefit of the doubt. If they prescribe a high number of lashes, and as he is being lashed they see that he will not be able to withstand the prescribed number, they stop lashing him. If the doctors prescribe a low number, and after having finished lashing him they see that he can withstand more, they do not give him more lashes. In other words the criminal can never receive more than the prescribed number nor more than they think he can withstand.

ואם לאו – that they only estimated for him to received only for one set of floggings.

If he committed a transgression which violated two prohibitions and they made one estimate [for the lashes for both prohibitions], he is lashed and then exempt [from more]. And if [they had] not [made one estimate for both], he is lashed [for one transgression], is allowed to recover and then is lashed again. If a person committed two violations with one act then there is the possibility that the lashes he receives for both will be joined together. If the doctors give one estimate as to how many lashes he can receive, for instance they say he can receive 42, 39 for the first violation and then 3 more for the second, then he receives the 42 lashes and is not lashed any more. However, if they make separate evaluations, for instance they say he can receive 39 for the first crime and do not state a number for the second, then he receives the lashes for the first crime, is allowed to heal, and then receives the prescribed number of lashes for the second crime. In other words, since the lashes were not estimated together, they are considered separate sets of lashes, and he must be allowed to recuperate in between.

Questions for Further Thought:
• Section three: Do you think that the ruling might be different if instead of performing one act whereby he violated two prohibitions, he instead violated two prohibitions by performing two separate acts?