[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 3^rd and 9^th 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 7^th 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 be 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.)