Makos, 22a-b

1- Our Mishna discusses the verses:  “If the guilty one has incurred [the penalty of] lashes, then the judge shall…. flog him in front of him, commensurate with his crime, in number.

With forty [lashes] he shall flog him; he shall not exceed, lest he give him a much more severe flogging than these [forty lashes], and your brother will be degraded before your eyes.”

The Mishna says that the order of the words “In Number – Forty mean to imply that only 39 Malkus are given.

2- We spoke about the opinion of most of the Rishonim that the number 39 is Min HaTorah as opposed to the Rambam who says that it is a “Seyag’ enacted by the Chachomim in to ensure that one does not go over the 40.

Here is the Rambam – Sanhedrin 17, 1.

How are lashes administered to a person liable to receive them? According to his strength, as indicated by [Deuteronomy 25:2] “According to his wickedness by number.” The number 40 stated in the following verse is mentioned to teach that more than 40 lashes are never administered even if the person is as healthy and as strong as Samson. When, by contrast, a person is weak, the amount of lashes is reduced. For if a weak person is given many lashes, he will certainly die. Therefore our Sages said: that even a very healthy person is given only 39 lashes. For if accidentally an extra blow is administered, he will still not have been given more than the 40 which he was required to receive.

We mentioned the Chinuch who is unable to explain the Rambam’s opinion.

We read the text of the Kesef Mishna who explains the Rambam’s words based upon the concept that the Rambam designates all Halachos that are derived from the 13 principles (Shlosh Esrei Midos) and Halacha L’Moshe Misinai as “divrei Sofrim”.

The classic example is Kidushin- engagement to a woman using money or a ring. In our printed edition of the Rambam he states that Kidushei Kesef is “divrei Sofrim!”.

But that is semi problematic since some manuscripts of the actual Rambam seem to imply that the Rambam changed his mind and subsequently amended  it to say that all the above are considered Divrei Torah.

Here is quote from a fine article on the topic. Page 165.

It must be noted here that there are manuscripts of Mishna Torah containing variations in the text of the two Halakhot mentioned above.  In these texts, Rambam says the exact opposite, namely that all three of the methods of kidushin are “din torah” – Biblical. According to R’ Avraham ben HaRambam and R’ Moshe HaKohen of Lunil, although initially Rambam held that kiddushei kessef is Rabbinic, he subsequently changed his position and amended the text of Mishna Torah to say that they are all Biblical. The earlier manuscripts of Mishna Torah which had already been in circulation at that point were never changed, and these were later used as the source for the printed editions. 

3- We discussed the concept if the Torah rounds off numbers.

See here.

For example:When the Torah lists the number of people in each of the 12 tribes  we find mostly a multiple of either 50 or 100. There are differing views regarding whether or not these numbers are exact.

4- We quoted the Rosh in Pesachim that makes note of three instances that one must say that the number mentioned in the Torah means “up to that number“.

1- Sefira- It says “Count 50 days”. When in in reality we only count 49 since it also says “count seven weeks” which equals 49! So it implies that “Count 50 days” means “up to that number“.

2- When enumerating the count of Ya’akov’s family that descended to Mitzraim the Torah itemizes 69 and then summarizes them as “a total of 70”! So here again it implies that the 70 means “up to that number“.

[commentaries make note of the Gemora and Midrash that Yocheved was born “at the gate” thus reconciling both numbers]

3- Malkus- We know from Halocha L’Moshe Misinai that the number is 39.

Thus the number 40 mention in the Torah means “up to that number“.