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Parashat Vayakhel: 39 Chief Melachot by Yaakov Bieler

March 15, 2012 by  
Filed under New Posts

Associating the contents of Tora SheKtav with Tora SheB’Al Peh 

One of the main preoccupations of the Jewish Oral Tradition is to identify textual bases for many of the laws that are detailed in the Mishna and Talmud, but which do not appear to be explicitly mentioned in the Written Tradition of the Tora. The disproportionate relationship between the respective quantities of certain subject matter contained in Chumash as opposed to Talmud is poetically stated in the Mishna:

Mishna Chagiga 1:8

The remission of vows[1]floats in the air” and it has nothing upon which to rely (in terms of clear Biblical sources).

The laws of Shabbat,[2] “Chagigot”[3] and “Me’ilot”[4] they are like “mountains hanging by a hair”. There is very little text and a great deal of law…

Nevertheless, the assumption that the laws of the Oral Tradition designated as “MiD’Orayta” (of Tora origin and status),[5] despite their not being explicitly written down in the Bible, were originally revealed to Moshe on Sinai during the forty days that he spent atop the mountain immediately after the Ten Commandments were given (Shemot 24:15-18), appears to underlie the attempts to identify Biblical textual sources for these laws. Otherwise, many of the directives of the Mishna and Talmud could be subject to the critique that they were first created by the Rabbis, rather than originating from a Divine Source, and therefore in certain respects are to be considered less binding[6] and not as crucial to proper Jewish observance.

Applying these assumptions to a central  aspect of Shabbat observance, the prohibition against performing “Creative physical activity”–Melacha.

Tractate Shabbat turns to the beginning of Parshat VaYakhel when it seeks out a Biblical textual support for the concept that there are 39 “Avot Melachot” (chief categories of prohibited creative activity on Shabbat)[7] as well as what sort of specific action is considered a violation of the Tora prohibition against engaging in “Melacha” on this holy day.

Shabbat 70a

The Rabbis taught (in a Baraita):[8] R. Natan says: (Shemot 35:3) “You shall not ignite a fire in all of your habitations on the day of Shabbat.”—What is the Tora coming to teach (i.e., why is this particular “Melacha” that is prohibited on Shabbat and Yom Tov being singled out for mention at this point in the Tora text)?

Because it says,

(Shemot 35:1-2)

And Moshe gathered together the entire congregation of the Children of Israel and he said to them: ‘Eileh HaDevarim‘ (these are the thingsplural) that HaShem Commanded to do them.

Six days you shall do “Melacha” (creative physical activity[9]singular), and on the seventh day, it will be to you holy, a Shabbat of Shabbats for HaShem; anyone who performs during its course (the seventh day) “Melacha”, will die.

Devarim“; “HaDevarim”; “Eileh HaDevarim” (these are three individual superfluities of language,[10] each evoking a hermeneutic interpretation). 


Devarim” implies (due to its plural form at least) 2;

HaDevarim” implies (due to its being an “article” indicating specificity) 1;

Eileh” has a numerical value of (“Aleph” = 1; “Lamed” = 30; “Heh” = 5) 36.

Altogether, 2 + 1 + 36 = 39.


These (the antecedents of “Eileh HaDevarim”, which we assume Moshe was informing the Jewish people about concerning the manner by which they were to observe Shabbat) are the 39 “Melachot” that were told to Moshe at Sinai.

One might think that (in order to be considered in violation of the prohibition to avoid performing “Melacha” on Shabbat,) you would have to perform all 39 (different actions) during the course of one “forgetting”?[11] (Since “Melacha” is written in the singular in 35:2, once we define “Melacha” as referring to 39 different activities, then it is possible that only when all 39 have been performed, is the individual finally transgressing “Melacha”!)


The Tora comes to teach: (Shemot 34:21) “Six days you shall work, and on the seventh day you shall rest; from ploughing and harvesting you shall rest.” (Since the Tora picks out these two examples of the 39 “Melachot” and lists them separately, one could conclude that just as these are listed apart from the general rule against performing “Melacha” in Shemot 35:2, implying that each of these actions is considered transgressions of the prohibition against violating Shabbat in their own respective rights, the same would be true with respect to the other 37 remaining individual actions on the list in Shabbat 73a).

But one still could conclude that regarding ploughing and harvesting one would have to bring two separate sacrifices,[12] but until one violates all 37 of the others (during a single “forgetting”), no sacrifice would be required?

The Tora comes to teach: (Shemot 35:3) “You shall not ignite a fire in all of your habitations on the day of Shabbat.”

The prohibition of igniting was included in the preceding verse (“Six days you shall do ‘Melacha’ and on the seventh day, it will be to you holy, a Shabbat of Shabbats for HaShem; anyone who performs during its course ‘Melacha’ will die”).[13]


So why “did it go out” (i.e., why was igniting mentioned specifically, if it had just been alluded to in 35:2 “…Kol HaOseh Bo Melacha Yumat” as part of the entire group of “Melachot”, along with the other 38 “Melachot”)?

To connect (the remaining “Melachot”) to itself and to say to you: Just as igniting is a chief category of “Melacha” and one is responsible (to bring a sacrifice for its inadvertent violation) for itself alone (and not in combination with the other “Melachot”), so too with regard to each of the other chief categories of “Melacha” one is responsible for each unto itself (to bring a sacrifice in the event of its inadvertent violation).

The Jerusalem Talmud contains an alternative interpretation to Shemot 35:1 in order to provide a different means for associating the 39 “Melachot” with a Biblical verse.

Talmud Yerushalmi Shabbat 7:9

We learn in a Baraita:[14] The Rabbis of Caesaria said: A “Siman” (hint, reference, mnemonic device) for the 39 “Melachot” on Shabbat stemming from the Tora—“Eileh” (this source focuses exclusively on the pronoun at the beginning of the phrase in 35:1, and pays no attention to the word “HaDevarim” that follows as the Babylonian Talmud cited above had done). “Alef” = 1; “Lamed” = 30; “Heh” = 8 (?),[15] the Rabbis not refraining from interpreting a “Heh” as if it were a “Chet”, resulting in the sum total of 39.[16]

In addition to the “Gematria” analyses of Shemot 35:1 that are recorded in the two Talmudic traditions identified with Babylonia and Israel, the Talmud Yerushalmi employs an alternate approach based upon “word-counting” for justifying the existence of 39 chief categories of “Melacha” on Shabbat:

Talmud Yerushalmi Shabbat 7:2

R. Shmuel bar Nachman in the name of R. Yonatan: These correspond to the 40 minus 1[17] instances of the term “Melacha” that are written in the Tora…[18]

R. Yosi b. Rebbe Bun in the name of R. Shmuel bar Nachmani: These correspond to the 40 minus 1 instances of the terms “Melacha” and “Avoda” that are written within the context of the Tabernacle.[19]

What does introducing the people to the laws of Shabbat in great detail before instructing how to fabricate the Mishkan suggest spiritually?

However, all of these various interpretations justifying the existence of 39 chief categories of “Melacha” prohibited on Shabbat proceed from the premise that just before Moshe gave the people the instructions regarding how to fabricate the Tabernacle,[20] its various implements and the clothing to be worn by the Kohanim, very complex detail regarding the laws of Shabbat first had to be imparted. While the particular activities that were acutely necessary for the construction of the Tabernacle, become the very same things that are prohibited for Jews to perform on Shabbat, the psychological and theological connection between Shabbat and Tabernacle is explored in the following Midrash:

Midrash MiKitvai Yad HaGeniza (Tora Shleima, VaYakhel, p. 3, #7)

When the Holy One, Blessed Be He, Spoke to Moshe, He first Told him about the Tabernacle, and afterwards Commanded him concerning Shabbat. Why? Because it was obvious before the Holy One, Blessed Be He, that Moshe would be observant of Shabbat. Therefore He Told him first regarding the Tabernacle. But Moshe knew that among the Jewish people, there were some who were lacking in seriousness. He said: It I tell them about the Tabernacle first, they will build it both on Shabbat as well as during the week. For this reason he preceded to warn them about Shabbat first, as it is said, (Shemot 35:1) “And Moshe gathered…” and this is placed alongside of (Ibid. 2) “Six days you shall do ‘Melacha’…”  The “Melacha” that they are to do for six days is the “Melacha” of making the Tabernacle, and on the day of Shabbat they are not to do any “Melacha” (including working on the Tabernacle). From where do you know that the reference to doing “Melacha” for six days in this context is specifically with respect to the Tabernacle? Because they were already commanded to observe Shabbat from their experience at Sinai (Shemot 20:7-10). Here it is specifically in connection with the Tabernacle that Moshe is mentioning Shabbat. For this reason he mentions to them Shabbat followed by the Tabernacle.


One might have thought that the proper place to discuss the 39 chief categories of “Melacha” is when Shabbat is first introduced. However, the Midrash is claiming that in order to be effective, the lesson of Shabbat has to be accompanied by practical, “hands-on” examples rather than via purely theoretical lists and teachings. The lesson of not going out on Shabbat beyond the furthest boundaries of the encampment was taught by means of the restrictions placed upon gathering the Manna in Shemot 16:27-30. So too the definition of “Melacha” is presented in conjunction with the directives for constructing the Tabernacle. The heuristic methodology being utilized is “Michlal Hein Ata Shomeia Lav” (from the implication of what you may/must do [for the six days during which building the Tabernacle is permitted]) you will learn what is prohibited to be done (on Shabbat). Usually, over time, one obtains more skill and experience with regard to how to perform the tasks that are incumbent upon him. It is counterintuitive for man, once he “gets the hang” of the “Melachot” that he must perform, to suddenly stop for a day and bring to a halt  the process with which he had been working so hard to familiarize himself. Apparently, while building and then regularly visiting a Tabernacle is a high form of Divine Service, an even higher one is refraining from building and constructing in order to contemplate HaShem and His Universe. Furthermore, this is a lesson particularly important for slaves to learn. Their entire existence had been defined by the work of their hands. This is what gave them purpose and their existence meaning. God suddenly Demands that the Jewish people realize that action without understanding and reflection is worthless and meaningless, and that one’s industry must periodically and regularly be shut down in order to be able to be in tune with oneself.


[1] BaMidbar 30:3 states: “An individual who vows a vow to HaShem or swears an oath to prohibit something upon himself should not profane his words; in accordance with whatever issues from his mouth he should do.” Although the subsequent verses (4-16) provide for either a father of a minor daughter or the husband of an adult woman being given veto rights over vows that the daughter or wife may make, there does not appear to be any comparable means for a man to extract himself from a verbal obligation which he has undertaken. Although the 3rd and 9th chapters of Tractate Nedarim discuss how a scholar is able in certain circumstances to cancel another’s vow, there does not appear to be any Biblical basis for such a proviso. The best that the Talmud can do is infer from the above cited verse, i.e., “he (the vow-er himself) should not profane his words”—however another could profane, i.e., release the man who has vowed, from the commitments that he has verbally undertaken.

[2] An aspect of these laws will be the focus of the rest of this essay.

[3] Festival sacrifices to be brought during the Pilgrimage Festivals of Pesach, Shavuot and Sukkot. Nowhere in the Bible is the word “Chagiga” mentioned. The obligation to bring special sacrifices in honor of the festivals is derived from inferences found in VaYikra 23:41 and Devarim 16:16; yet this is the subject matter of the entire tractate “Chagiga”.

[4]Consequences of illegal appropriations by private individuals of property belonging to the Tabernacle/Temple.  The only textual reference to this category can be found in VaYikra 5:15-6; yet this is the subject matter of the entire tractate of “Me’ila”.

[5] Naturally, we are referring to the contents of the Oral Tradition that is identified as “D’Orayta” (with Tora standing), in contrast to “D’Rabbanan” (of Rabbinic origin). Material that summarizes Rabbinic legislation, such as decrees to distance people from transgressing Tora law, or to meet certain situational needs during particular historical epochs, while sometimes being associated with biblical texts in order to help remember them (“Esmachta”), there is no pretense being made in such cases that the laws are Toraitic rather than Rabbinic.

[6] Although the obligation to observe Rabbinically legislated laws also stems from the Tora—Devarim 17:10-11—nevertheless, in certain situations when e.g., one finds himself obligated simultaneously to fulfill Toraitic and Rabbinic Commandments, the Tora Commandment trumps the Rabbinic one. Similarly, when one is in doubt regarding whether he has already properly fulfilled a Commandment, with regard to Tora law, he has to assume the worst and repeat the performance, while Rabbinic Commandments do not have to be repeated and it is assumed that they were properly fulfilled.

[7]Shabbat 73a:  1) Planting seeds; 2) ploughing; 3) harvesting; 4) making sheaves; 5) threshing; 6) winnowing; 7) separating; 8) grinding; 9) sifting; 10) kneading; 11) baking; 12) sheering wool; 13) whitening it ; 14) combing it; 15) dying it; 16) spinning it; 17-20) weaving operations; 21) tying a knot; 22) untying a knot; 23) sewing two stitches; 24) tearing in order to sew two stitches; 25) trapping a deer; 26) slaughtering it; 27) skinning it; 28) salting the skin; 29) tanning it; 30) scraping it; 31) cutting it; 32) writing two letters; 33) erasing in order to write two letters; 34) constructing; 35) deconstructing; 36) extinguishing a fire; 37) igniting it; 38) striking the final hammer blow; 39) carrying from one domain to another.

[8]A textual source from the period of the Mishna, but which was excluded by R. Yehuda HaNasi from his work, the Mishna.

[9] HaKetav VeHaKabbala on Shemot 35:1, quoting R. Naftali Hirtz Weisel, defines “Melacha” as opposed to “Avoda” (work) as follows:

“Avoda” includes all actions that a person engages in, even if such actions do not require special knowledge or wisdom, do not change anything among his actions, and do not improve anything, e.g., carrying loads of stones, running from one place to another, to carry the clothing of one’ s teacher as he goes to the bathhouse, and to help him dress, and other actions along the same lines that are acts of a servant, and that is precisely the sense of the word “Eved” (servant, which shares the same root as “Avoda”). None of these actions could be categorized as “Melacha”. And throughout the Biblical text you will not find these actions called “Melacha”.

The term “Melacha” relates to an action that innovates something among natural things, and changes them via the action into something that they previously were not. By means of this innovation, the object becomes improved, whether it is an act of building, or even an act of destruction, it always changes. And when there is inherent within the action an improvement in the state of the world/ society, this is “Melacha”. Therefore erasing in order to write, deconstructing in order to build, are considered “Melachot”. For every “Melacha” there is study and knowledge concerning when and how properly to carry the action out. For this reason “Melacha” applies to all actions associated with the act of Creation for the sake of inhabiting this world and improving it that Hashem Created to do. Agricultural activities are therefore “Melacha”, ploughing, seeding, etc. Because HaShem, may He be Blessed, Prepared for all these activities a specific time and a specific set of practices, and a person must conduct himself in accordance with these preparations, and only then will his activities prove successful. One who destroys by his actions is not considered to have done anything, because his actions do not result in an improvement of the world. For this reason, the Rabbis have said (e.g., Beitza 13b; Bava Kama 26b): The Tora prohibits (with regard to Shabbat and Yom Tov) only “Melechet Machshevet” (lit. thoughtful, premeditated “Melacha”—based upon Shemot 35:33, where this is the phrase used for the activities that will be utilized in order to construct the Tabernacle). Consequently all actions that are purely destructive are not considered Tora violations (on Shabbat and Yom Tov).

What results from this, in my opinion, is a rule:  Every Divine Action that He Performed over the course of the six days of Creation are to be called “Melachot” rather than “Avodot”.  For this reason it is written (Beraishit 2:2) “…And He Rested on the seventh day ‘MiKol Melachto’ that He Did”…

Behold all of the activities that HaShem, may He Be Blessed, Prepared for the sake of man during the Creation are numerous. Some of them are functions of the earth, seeds, plants, all for man’s consumption; some are related to his needs such as his implements and clothing, like creating things out of wood and metal, sewing, dying, and the like; and some are for his abodes, like building, etc. And these are the 39 chief “Melachot” that were received by ChaZaL and taught in the chapter known as “Kellal Gadol” (the 7th chapter of Tractate Shabbat). And they were received as part of the category known as “Halacha LeMoshe MiSinai” (law that was given to Moshe at Sinai). The Wisdom of God Included in this list of 39 all of the many “Melachot” that are known, any not being mentioned are defined as “Toldot” (derivatives) and are included under the rubric of these chief “Melachot”…

For this reason, regarding the Mishna listing the 39 Melachot (Shabbat 73a), the Talmud does not ask the question “Mena Lan” (from where [in the Written Tradition] do we know that these categories of activity are prohibited on Shabbat). All of them are included within the general prohibition of not doing “Melacha” (see e.g., Shemot 20:9; 35:2; VaYikra 23:3).

(The commentator does note that the last “Melacha” in the list of 39, “carrying” does not fit the general definition that he posits, and therefore the Talmud does ask with respect to it: [Shabbat 96b] “’Carrying’, where is it written in the Tora that it is prohibited?”)

[10] The manner in which I typically explain why the Oral Tradition makes so much of apparently “extra” language, is what I have termed, “The Law of Conservation of ‘Pesukim’”. According to this “principle”, the working assumption of Biblical commentators is that the Tora text is as laconic as it possibly could be. Consequently, every sentence, line and even letter needs to be accounted for.

[11]The Talmud is considering the number of sacrifices one would have to offer in the event that s/he inadvertently violated Shabbat. With regard to inadvertent violation, the actions have to take place while the individual is in a state of not being aware that it is Shabbat and that these activities are therefore prohibited. In the event that there are multiple transgressions, they would be all considered a single action assuming that the person continues to not know that it is Shabbat. However, if for some time the individual were to subsequently realize that it was Shabbat, only to forget once again, then the separate “forgettings” would necessitate separate sacrifices since the transgressions are interrupted by the temporary realization of the prohibitions of the day.

[12] The Talmud’s discussion regarding how to understand the interrelationship between a general rule (“Don’t do ‘Melacha’”) and individual examples of actions included under this rule (“Don’t do ploughing, harvesting, igniting a fire) is in effect an exploration of one of the 13 hermeneutic principles attributed to R. Yishmael and listed in a Baraita at the beginning of the Sifra (Midrash Halacha on VaYikra)—see ArtScroll Siddur, pp. 50-1:

#8 Anything that was included in a general statement (e.g., Do not do “Melacha”) but then was singled out from the general statement in order to teach something (e.g., Do not do ploughing, harvesting, igniting), was not singled out to only teach about itself, but to apply its teaching to the entire generality (e.g., you don’t have to transgress all 39 categories in order to first be considered in violation of the prohibition against doing “Melacha”, but rather transgressing even one of them alone is sufficient).

Since the Baraita refers to a single element that is listed separately from the rule, ambiguity is created when there are multiple exceptions as in our case (the Tora lists not only igniting, but also ploughing and harvesting). Are the several exceptions to be deemed a rule unto themselves, or can they also serve to define the general rule. While a verse that lists two exceptions (ploughing and harvesting) may have to be considered a separate rule, dividing “Melacha” into two groups of 37 and 2, this is more difficult to say in the case of a single exception, as in the case of igniting. Furthermore, there are some who wish to claim that the “ploughing and harvesting” mentioned in Shemot 34:21 is in fact referring to activities prohibited during the Sabbatical Year as opposed to an individual Shabbat, thereby resulting in “igniting” being the only case of “Melechet Shabbat” that is separated from the general rule of not doing “Melacha” and thereby fitting better into R. Yishmael’s hermeneutic rule.

[13]This is in contradistinction to the verse containing the examples of ploughing and harvesting, where Shemot 34:21 stands alone, and is clearly not a continuation of what immediately precedes it–

Shemot 34:20

And a first-born donkey you will redeem with a sheep. And if you do not redeem it, and you will break its neck. Every first-born son you will redeem. And you will not appear before My Face (i.e., come to Jerusalem for a pilgrimage Festival–Pesach, Shavuot and/or Sukkot) empty-handed (i.e., without bringing the appropriate Festival sacrifices).

[14] Material dating from the period of the Mishna, but which was not included in R. Yehuda HaNasi’s compendium. Hence, “Bar-aita”, i.e., “Bar” = outside, i.e., statements that were left out, that remained on the “outside”.

[15] In this instance, not only is the esoteric homiletic approach of “Gematria” (calculating the numerical value of letters) being utilized, but the value of “Heh” is patently misrepresented. Starting from the beginning of the alphabet: “Alef” = 1; “Bet” = 2; “Gimel” =3; “Daled” = 4; “Heh” = 5; “Vav” = 6; “Zayin” = 7; “Chet” = 8!  However, looking upon the shapes of these two letters respectively, the “Heh” ה, and the “Chet” ח, one can understand why the letters would be interchanged when there is some lesson to be drawn, as apparently in this case. The physical difference between the two letters is a small line connecting the lower half of the left-hand leg of the “Heh” to the top horizontal line. ShLaH HaKodesh (Shemot, Parshat Bo, Derech Chayim, Tochechot Mussar) utilizes this comparison in a most topical context to this time of year:

Commentators have already gone on at length regarding the symbolism of “Chametz” and “Matza” that they correspond to the two inclinations in man. “Chametz” is the despised
”fermenter” and leavening is a reference to the “leavening in the dough”, i.e., the evil inclination that leads to arrogance and sin. The body of man is like dough in which is mixed flour and water. Man is made of a comparable mixture like this, and the evil inclination causes the dough to “rise”. “Matza” reflects the influence of the good inclination that causes man to be subservient and humble and prevents him from “rising to the top” which is the quality of “Matza”. He is then subservient to his Creator and does not come to sin. This is a manifestation of (Tehillim 34:15) “Turn from evil and do good.” And the difference between the letters comprising “Chametz” and those making up “Matza” is only the closure (connecting the leg of the “Heh” to the roof of the letter, thereby turning it into a “Chet”). This hints at the comments in Menachot 29b—“Why is the leg of the ‘Heh’ disconnected? This hints at the penitent reentering the world from the side (through the space between the leg and the roof). And they ask, “Why does he not reenter from the bottom (i.e., the Talmud projects the image that the individual who sins falls out of the world and therefore plunged through the open space at the bottom of the “Heh” symbolizing the world of order and Mitzva compliance)?” The Talmud answers, “Such an opportunity would not arise; no Divine Assistance would be provided (i.e., the assumption is that in order to repent, one must take a more arduous path than what led to sinning in the first place. And while the desire to repent will precipitate God’s Help, nevertheless the journey will be a challenging one).” Consequently in “Matza” there is a “Heh” that represents repentance; in “Chametz” there is a “Chet” that is sealed from above (if the individual is unrepentant, there is no path by which he can “rejoin” the world).

Interpretations regarding the various shapes of the Hebrew alphabet also appear in Shabbat 104a. 

Tora Temima on Shemot 20:12 #82 suggests, however, that the interchanging of these letters for homiletical purposes has more to do with the portion of the mouth by which they are pronounced, rather than the shape of the letters. The commentator proceeds to list numerous instances where such an interpretation is made, demonstrating that this is a common Midrashic “move”: Yerushalmi Peah 1:5; Berachot 30b; Ibid. 35a; Shabbat 32b; Ibid. 55b; etc. See also fn. 12 regarding alternate interpretations for Shemot 34:21.

[16] Whereas the Derasha in the Bavli whereby the Gematria of “Eileh” is combined with inferences drawn from “HaDevarim” appears to remain within the boundaries of homiletic and hermeneutic interpretation, the calculation of a “Chet” in place of a “Heh” would appear to beg credulity to a greater extent. Even the citations supplied in Tora Temima that are listed in fn. 15, do not take the “Gematria” of “Chet” and replace that of “Heh”, but rather involve word plays whereby a word spelled with a “Heh” is read as if there was a “Chet” in the text. When Tora Temima mentions that “Heh” and “Chet” are pronounced from the same region in the mouth, it seems to me that this would account for a “Derasha” of interpretation rather than one of calculation. In fact, the entire issue of whether there are in actuality 39 chief categories of “Melacha” seems to me to be somewhat of an artifact in light of the extreme overlap with regard to “Melachot” dealing with selecting. It would appear that among the 39 “Melachot” listed in Shabbat 7:2 (see fn. 7), 6) winnowing, 7) separating and 9) sifting all achieve the same purpose with only slight differences in methodology. So it could have been legitimately maintained that there are only 37. Furthermore, there is a controversy with respect to igniting as to whether it is a full-fledged “Melacha” resulting in “Karet” (ritual excision) for its violator, or whether it constitutes no more than a “Lav” or “Lo Ta’aseh” (negative prohibition) maximally punishable by lashes. If it is not a full-fledged “Melacha”, then perhaps it should not be included in the group, leaving us with only 36 “Melachot”, etc. it appears that the Oral Tradition saw something special about the number 39 (see fn. 17) and therefore made sure that there would be 39 elements in the list, as well as “Derashot” based on Biblical text that would support such a number of “Melachot”.

[17] The curious manner in which the number 39 is represented in the Talmud, i.e., 1 less than 40, paraphrases the language in Mishna Shabbat 7:2 “The chief categories of ‘Melacha’ are 40 minus 1…” Commentators suggest that referring to the number 39 in this manner parallels an interpretation of Devarim 25:3 “He shall be struck 40 times, not a single time will be added…” that appears in Mishna Makkot 3:10 “How many times is he struck? 40 minus 1, as it says, ’40 times’—a number that is close to/approaches 40…” Among the explanations that Tora Temima on Devarim 25:3 offers for the Mishna’s interpretation of the verse is that since in the previous verse, 25:2, the phrase “in accordance with his evil” appears, the Tora is suggesting that each case of corporeal punishment is to be evaluated separately, taking into consideration the physical ability of the convicted criminal to withstand the beating as well as other factors. Consequently, 40 lashes is the outer limit, and the maximum should therefore be up to 40, which allows for the possibility that some individuals will receive considerably less than even 39. Consequently, while referring to 39 as 40 minus one does not have intrinsic significance for the laws of Shabbat, it is another way in which the Oral Tradition can reinforce the principle of the upper limit of the number of lashes that can be administered to someone found guilty by the court of violating certain Tora laws.

[18] Unfortunately, there are more than 39 times that “Melacha” is used in the Tora, 62 by my best count. If we eliminate references to non-Shabbat contexts (e.g., Yosef coming in to do his “Melacha” in Beraishit 33:14; references within the context of ritual impurity in VaYikra 7:24; 11:32; 13:48, 51; and discussions of the various Pilgrimage Festivals, Rosh HaShana and Yom HaKippurim, we can arrive at 40 instances. Since the Talmud presents the idea as “40 -1” times that “Melacha” is written in the Tora, “Midrashic license” could be invoked to justify this interpretation. 

Beraishit    2:2 (2X), 3.

Shemot     12:16; 20:8, 9; 22:7, 10; 31:3, 14, 15 (2x); 35:2 (2x), 21, 24, 29, 31, 33, 35 (2x); 36:1-3, 4 (2x), 5-6, 7 (2x), 8; 38:24 (2x); 39:43; 40:33.

VaYikra     23:3 (2x).

Devarim    5:12-13.

[19] With respect to “Melacha”, the verses from the list in fn. 16 that would be relevant are: 31:3, 14, 15 (2x); 35:2 (2x), 21, 24, 29, 31, 33, 35 (2x); 36:1-3, 4 (2x), 5-6, 7 (2x), 8; 38:24 (2x); 39:43; 40:33, all told 27.  Consequently 12 instances of “Avoda” would have to be added to complete the requisite 39. In fact 13 references are extent, once again resulting in 40 from which 1 has to be subtracted:

Shemot     27:19; 30:16; 32:13; 34:21; 35:21, 24; 36:1, 3, 5, 38:21; 39:32, 40, 42.

[20] Although the Tora first mentions the Tabernacle in Parshat Teruma, Shemot 25, many commentators assume that the Tora’s presentation of these events is not in chronological order. Here is one example of such an approach.

RaShI on Shemot 35:1 “And Moshe gathered”

This takes place the day after Yom HaKippurim when Moshe came down from the mountain…

(It is assumed that Moshe finally rejoins the Jewish people on Yom HaKippurim after 3 40 day periods on Sinai and presents them with a new set of Tablets, replacing those he smashed in Shemot 32 on Shiva Asar B’Tammuz. Consequently RaShI writes on Shemot 34:29 “And it was when Moshe descended”—“When he brought the last Tablets on Yom HaKippurim.” Commentators who agree with the assumptions articulated by RaShI therefore conclude that the Mishkan concept was first shared with the Jewish people only at this point, after they had been granted forgiveness for the sin of the Golden Calf, despite its earlier references in Parshiot Teruma and Tetzave prior to the sin. Although Shabbat does not appear in connection to the original descriptions of the Tabernacle that is to be built, its mention now by Moshe prior to the beginning of the actual construction is deemed of particular significance.)

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