Commentary for Deuteronomy 25:1

כי יהיה ריב IF THERE BE A QUARREL [BETWEEN MEN] they will in the end have to approach the judges (because of a bodily injury inflicted by one on the other, since Scripture goes on to state, “and if the wicked man be worthy of lashes”, a punishment that can only follow, in the case of a quarrel, upon one of the parties receiving a blow). You must thus come to the conclusion that nothing good can come out of a quarrel. Just think: what was it that caused Lot to leave the righteous man (Abraham)? You must admit it was a mere quarrel (cf. Genesis 13:7—11; Sifrei Devarim 286:1).

IF THERE BE A QUARREL BETWEEN MEN. According to the tradition of our Rabbis that stripes are administered to those who are guilty of having violated negative commandments³⁶⁶Makkoth 13b. [and not in civil cases, the question arises] what is its [the stripes’] connection with a quarrel between two people? He who eats n’veilah (carrion) in his home is liable to stripes! So also he who sows his field or his vineyard with diverse seeds, or he who cohabits with any of the women forbidden by a plain prohibitive law [i.e., one not involving the court-imposed death-penalty], and all the rest of the negative commandments [are all typical of the transgressions punishable by stripes. All involve negative commandments, not civil suits as is the case in the verse before us.] Additionally, what is the meaning of the phrase and they shall justify the righteous³⁶⁷In Verse 1 before us. [since a civil case does not involve questions of wickedness and righteousness]? Therefore, the Rabbis have interpreted³⁶⁸Makkoth 2b. the verse as referring to plotting witnesses. Scripture says: “In case, If there be a quarrel between two men, and they come high unto judgment and they will judge them through the testimony of two witnesses, as we have been commanded.³⁶⁹Above, 19:15. [Afterwards, two other witnesses came to court and testified that the first pair of witnesses were elsewhere at the time when the event they testified about allegedly took place. Thus the person found guilty as a result of the original testimony is shown to be ‘righteous’ while the plotting witnesses have been proven ‘wicked.’] Then the judges will justify the righteous [through the second pair of witnesses] and condemn the wicked contrary to the first judgment; then it shall be if the wicked man [i.e., the first pair of witnesses] deserve to be beaten. ”³⁷⁰Verse 2. This applies to where the command and ye shall do unto him, as he had purposed to do unto his brother³⁷¹Above, 19:19. There are cases, however, as the text continues, where this law cannot be applied, for example if they testified that a priest is the son of a divorcee, thus disqualifying him from the priesthood. If the witnesses were non-priests, that punishment is obviously inapplicable. And even if they were priests the punishment cannot be inflicted because their intent was to disqualify not only the priest himself but his offspring as well, but Scripture implicitly excludes the offspring from liability [for it says, and ye shall do unto him, but not to his offspring] as he had ‘purposed to do unto his brother.’ Therefore the witnesses are scourged for their false testimony (Makkoth 2 a-b). cannot be carried out upon them — such being the case if they testified [against a priest] that he is the son of a divorced woman [and therefore not qualified to be a ministering priest in the Sanctuary], or that he is a slave or a bastard [who is prohibited from the priesthood or from marriage to a Jew], or if they testified against someone that he transgressed one of the negative commandments [which are punishable by stripes] — in all these cases they [the plotting witnesses] are punishable by stripes.
It is possible that there be a quarrel between men resulting in stripes — such as where someone assaulted his fellow [causing a damage of] less than a perutah,³⁷²If the assault did result in a significant damage, he is liable on five counts: for injury, for pain, for medical expenses, for loss of wages, and for humiliation. The rule is that wherever the damages have a monetary value greater than a prutah [a small coin], there are no stripes. But if the damages are less than a prutah, he is punishable by stripes. (Kethuboth 32b). or that he cursed his fellow with the Name of G-d,³⁷³Shebuoth 36a. or that someone exacted a utensil necessary for the preparation of food as security for a loan, and similar cases. Scripture speaks of the common occurrence that the party to a dispute [with his fellow] will bring him to court and he will be punished with stripes because of him.
Now, the reason for the forty stripes, according to the Midrash,³⁷⁴Tanchuma (Buber), Bamidbar 28. is because he transgressed against the Torah which was given in forty days and he caused death upon himself who was formed in the forty days following conception; let him, therefore, be given forty stripes, and be freed of his punishment [of death].
I have already mentioned the subject of levirate marriage and the secret thereof, as well as of Chalitzah (the loosening of the shoe) and its reason.³⁷⁵Genesis 38:8 (Vol. I pp. 469-470).

כי יהיה ריב בין אנשים, “if an argument between two men results in their taking their case to the court;” Nachmanides writes, basing himself on a long standing tradition, that the penalty of 39 lashes is administered for deliberate transgressions of negative commandments when no specific penalty has been decreed by the Torah. Why would the Torah expand on this penalty when speaking about a fight between two people, when the same penalty is applied for people who eat meat that has not been slaughtered, or who indulge in a number of other forbidden activities? Furthermore, what law did these two people break when they engaged in a fight? The whole structure of our verse, which speaks about exonerating someone after judgment had been given and labeling the second party as “wicked” is problematic. Why do we need a verse telling us that the person found “justified” be so declared as such by the judges? Such considerations prompted our sages to understand the whole paragraph as dealing with a scenario involving a second set of witnesses appearing after initial judgment having been given. This second set of witnesses challenges the witnesses on the basis of whose testimony the guilty party has been convicted by claiming that those witnesses had been with them in a different location at the time the fight was supposed to have occurred, so that they could not have witnessed that fight at all. Normally, in such a case the first set of witnesses would be given the penalty that they had intended to be applied to their victim. (Deut. 19,19) When this is impossible, such as when they claimed that seeing the accused party was the son of a legally forbidden union and could not partake of certain privileges reserved for children of legitimate unions, then the court will impose the penalty of 39 lashes, as it is impossible to change those witnesses’ legal status in the community. The judges, when reversing the conviction, will have to make a public statement that the party originally convicted of the crime in question had in fact been righteous and had remained righteous throughout. According to a homiletic approach the reason why the number of lashes is described as being “40,” (excluding the 40th), is that the guilty party had violated a commandment that Moses had been given during the 40 days he had been on Mt Sinai without food and drink. Moreover, by sinning, the guilty party had condemned himself to death as it takes 40 days in the womb of its mother for the embryo to begin to evolve into a living human being. The 40 lashes are intended to absolve the sinner from further guilt.