Siman 292

It is written: "If a bird's nest chances before you on the way, in any tree or on the ground, fledglings or eggs, and the mother is sitting upon the fledglings or upon the eggs, you shall not take the mother with the young. You shall surely send away the mother, and the young you may take for yourself, etc." This mitzvah is not an obligation to fulfill except when it comes into one's hand, and thus the sages taught regarding the laws of shiluach haken (Chullin 139b): One might think he must search through the mountains and hills in order to find a nest; the Torah teaches "if it chances"—when it occurs before you, see there. However, when it occurs before you, you are obligated to fulfill it, and you cannot say, "I do not wish to take the young nor the mother, and I will pass them by." For it appears from the language of the Shas that he is only not obligated to search after a nest, and it implies explicitly that if the nest comes into his hand, he is obligated to fulfill the mitzvah. And thus wrote one of the great authorities (Chavat Yair, siman 67). To what is this comparable? To a lost object, for one is not obligated to search after a person's lost object, but when he passes before it, it is written: "You may not hide yourself." And here too it is so. And one should not say, "Behold, 'you may not hide yourself' is not written here," for it can be said that here too, according to the plain meaning of the verse, it is so: "If a bird's nest chances, etc.," there is upon you a lav of "you shall not take the mother with the young" and there is upon you an aseh of "you shall surely send away, etc.," and it is like "you may not hide yourself," except that that is with a lav and this is with an aseh (and even though by the law he is not obligated to pursue it, nevertheless it is certainly a great thing to attain this mitzvah, and thus wrote the Birkei Yosef in the name of the Arizal).

And one should not bring a proof to the contrary from that which we learned there (141a): If one said, "I am taking the mother and sending away the young," he is liable, see there; for it implies specifically in such a case, but if he desires not to approach either of them, he is exempt. For it is not so when we scrutinize what this comes to teach us; rather, it comes to teach us that you should not say that the Torah was only particular that one should not take both of them, as it is written, "You shall not take the mother with the young," but by taking one of them he has fulfilled the commandment, and that which is written, "You shall surely send away the mother etc.," it mentioned one of them and the same would apply to the opposite, to send away the young and take the mother. For this it comes to teach us that it is not so, for the Torah specifically said to send away the mother and take the young, and not the opposite. And if so, this is irrelevant to if he desires not to fulfill the commandment at all (and I saw one who wrote that from Tosafot 140b, starting with "shnei," there is a contradiction to this [there in Chavot Yair], but in truth there is no contradiction at all to one who scrutinizes their words, see there; and the Chavot Yair himself wrote that it appears more like the explanation of the Rashba, see there; and in my opinion, even from Tosafot there is no contradiction, and delve into this):

One must deliberate whether that which the Torah wrote, "and the young you shall take for yourself," is an obligation or a permission. One of the great authorities ruled that it is a permission, and if one wishes, he may send away the mother and the young together, or not take the young at all (Chacham Tzvi, siman 83), similar to "six days you shall work" or "six days you shall eat matzot," which are permissions and not obligations. And one may bring a proof for this from what the Rambam wrote in chapter 13 of Hilchot Shechitah, law 6: One who says, "Behold, I am taking the mother and sending away the young," is obligated to send away the mother, etc. Thus far his words. Since he did not write "he is obligated to send away the mother and take the young," one may conclude that regarding the young there is no requirement. There is a further proof from that which we learned in a Mishnah there: If he sent her away and she returned, even four or five times, he is obligated to send her away; see there. If you were to think that one is obligated to take the young, behold, after he has taken them he is no longer obligated in sending away, as we learned there: If he took the young and returned them to the nest and the mother returned, he is exempt from sending away; see there. Rather, it is certainly so that there is no obligation in this. However, one could reject this, such as where he did not yet have the opportunity to take them, but nevertheless an obligation exists. And also regarding the Rambam one could reject this, for after he wrote "he is obligated to send away the mother," it automatically follows that he is obligated to take the young as is written in the verse, and he is merely teaching us the primary law that he cannot switch them, as was written in the previous section.

And one should not ask that if so, why do we need at all this verse of "and the young you shall take for yourself," for it can be said that it is needed for the exposition "for yourself" and not for your dogs—that when the young are treifah, one is exempt from shiluach, as will be explained. And also one should not ask that if there is no obligation in taking the young, why indeed did the Torah exempt when they are treifah, for this is no question at all; for are the reasons of the Torah revealed to us? Behold, it is a decree of the King, and even though the commentators of the Torah gave certain reasons, this is merely for general explanation, but in truth, "her paths wander, you cannot know." And nevertheless, one whom Hashem has granted merit in this mitzvah should fulfill the verse as it is written, for every voluntary act in the Torah is like a mitzvah, only in relation to an obligation is it called voluntary. Furthermore, according to the reasons of wisdom stated regarding this mitzvah in the commentary of the Ramban and Rabbeinu Bahya, and even more so in the Zohar and Tikkunim, it is specifically intended to take the young.

The Rambam wrote there: One who takes the mother with the young and slaughters her, the meat is permitted for eating, but he is lashed for the slaughter of the mother, as it is said, "You shall not take the mother with the young." And likewise, if she died before he sent her away, he is lashed. If he sent her away after he took her, he is exempt. And likewise, every negative commandment that is attached to a positive commandment, one is obligated to fulfill the positive commandment within it, and if he did not fulfill it, he is lashed. If another person came and snatched the mother from his hand and sent her away, or if she fled from his hand without his knowledge, he is lashed, as it is said, "You shall surely send away," until he sends her away of his own accord, and behold, he did not fulfill the positive commandment within it. Thus far his words.

The explanation of the matters is that "you shall surely send away" is a negative commandment linked to a positive commandment, for even if he took the mother in his hand and did not send her away, he can send her away afterward. As the Rambam wrote afterward, and this is his wording: If one took the mother from the young and clipped her wings so that she cannot fly and sent her away, he is given lashes for disobedience and keeps her with him until her wings grow and he sends her away. And if she died before this, or escaped and was lost, he is lashed, for he did not fulfill the positive commandment within it. Thus far his words. For the positive commandment is only fulfilled as he wrote afterward, and this is his wording: And how does he send her away? He holds the mother by her wings and makes her fly away. Thus far his words. For the language "you shall surely send away" refers specifically to his hand, that he should hold her and make her fly away. But if he shouted at her and she flew away because of the sound, he has not performed the mitzvah at all. And likewise, if he took her and clipped her wings and sent her away, he has transgressed the positive commandment, for we require that he make her fly away, and since he clipped her wings, she is unable to fly. Therefore, he is obligated to keep her and send her away. And it appears in my humble opinion that even though the young will no longer be there afterward, nevertheless, he is obligated to send her away because of the obligation of the initial taking which he did not fulfill according to the law, and he is now obligated to fulfill it.

And behold, in Makkot (16a) there is a dispute regarding every negative commandment that is linked to a positive commandment, for which one does not receive lashes; nevertheless, if one nullified the positive commandment through a direct action, everyone holds that he receives lashes. But if he did not nullify it through a direct action, but rather merely did not fulfill it, R. Yochanan and Resh Lakish disagree: one says he receives lashes and one says he does not receive lashes. And several of the early authorities ruled that only if he nullified it through a direct action does he receive lashes, and not for not fulfilling it. However, the Rambam in chapter 18 of Sanhedrin ruled that for not fulfilling it he receives lashes, and only in the definition of "did not fulfill it" he does not interpret like the explanation of Rashi—that he did not fulfill it immediately—but rather that it was nullified on its own until it is impossible for him to fulfill the positive commandment at all, and he did not nullify it through a direct action. And all of this we explained in Choshen Mishpat siman 97 section 5, see there (where we explained that the Rambam's version of the text is that R. Yochanan holds "he fulfilled it" and "he did not fulfill it," and not Resh Lakish, and therefore he ruled accordingly, see there).

And according to this, his words here are clarified very well, and that which they questioned him on (the Kesef Mishneh and Lechem Mishneh) is answered. And first he says that if he slaughtered it, he certainly receives malkot, for he has nullified it with an action. And afterwards he says, and likewise if it died he receives malkot, meaning that this is not a nullification through an action, but he can no longer fulfill the positive commandment. And afterwards he says, and if he sent it away after he took it, he is exempt, thus far his words. Meaning, that the essence of the mitzvah is to hold it by its wings and immediately release it, but post facto, even if he took it, if he only sent it away afterwards, he is exempt and has fulfilled the positive commandment. And therefore, before he slaughtered it or it died, he is not yet liable for malkot. And this is what he says, and likewise all negative commandments, etc., meaning that we rule like the one who says "he fulfilled it" or "he did not fulfill it."

And afterwards he says: If another came and snatched the mother from his hand and sent her away, or if she fled, etc. Thus far his words. And this is the explanation: That which was explained, that as long as he has not slaughtered her and she has not died he does not receive malkot, this is when she is still under his hand, because he is still able to fulfill the positive commandment and send her away. But if another snatched her from his hand and sent her away, or if she fled on her own, he receives malkot immediately, for it is no longer in his hand to fulfill the positive commandment, and we hold "he fulfilled it" or "he did not fulfill it," as I have written. And afterwards he says an even greater novelty: If he took the mother with the young and clipped her wings and sent her away, they lash him, etc., and he detains her, etc., and if she died or fled, he receives malkot. Thus far his words. Meaning, it is not only necessary to say that if he did not fulfill the sending away at all that he receives malkot when she dies or flees, but even if he fulfilled a bit of the mitzvah of sending away, such as if he sent her away with clipped wings, this is also as if he did not fulfill it at all, and he is obligated to raise her until her wings grow and then send her away. And if he slaughtered her during this time or she died, he receives malkot, for this sending her away with clipped wings is as if he did not fulfill this positive commandment at all. However, in addition to this, they lash him with makat mardut immediately for having clipped the wings. And afterwards he says: How does he send her away? He holds the mother by her wings and makes her fly away; meaning, that this is the primary fulfillment of the mitzvah of shiluach haken.

And it seems simple that one is obligated to recite a blessing at the time of its sending: "Who has sanctified us with His commandments and commanded us regarding the sending of the nest." And so I found in the book Tamim De'im of the Ra'avad; he cited there at the end of siman 179 the words of the author of the Ittur in the name of Halakhot Pesukot. This is his wording: And the halakha is that one must recite a blessing over the sending of the nest and over a parapet, etc. Thus far his words. And do not err in the language of the responsa of the Rashba (siman 18), who wrote: And so too every mitzvah that comes through a transgression, such as returning a stolen object, etc., and taking the mother in order that we may return and send her, etc., we do not recite a blessing; see there. For this is the explanation: Certainly if he holds her in order to send her, he recites a blessing. However, if he takes her now in order to send her after some time—for in this too he has fulfilled the positive commandment as has been explained—nevertheless, at the time of the act he committed a transgression, and therefore he should not recite a blessing afterwards when he sends her, and it is like the returning of a stolen object. And according to this, on the contrary, there is proof from the Rashba that if he performed the mitzvah properly, he should recite a blessing over it. And also in the book Tamim De'im there, he previously cited one who wanted to say that one should not recite a blessing because it also contains a negative commandment of "you shall not take," etc., and he rejected it, for there are several positive commandments that also contain a negative commandment and we recite a blessing over them; see there. And so is the primary ruling. (And I saw in the Be'er Heitiv who wrote that there is a dispute, therefore one should recite the blessing without the Name and Sovereignty; see there. And so too in the Pitchei Teshuva he cited in the name of Tiferet Yonatan that one should not recite a blessing lest the eggs be found to be addled; see there. And it is not worthwhile to heed them, for if so, we would not recite a blessing over tefillin lest one letter has become invalid; and if you say that we establish them upon their status of fitness, then here too it is so. And it is evident that they did not see the Tamim De'im and also the responsa of the Rashba. And the primary ruling is to recite a blessing. However, regarding the blessing of Shehecheyanu, it seems to me that one should not recite it, as it is a mitzvah that contains no joy and is not from time to time; and delve into this.)

Shiluach haken applies only to kosher birds, such that the mother and the offspring are kosher, for "tzippor" is a kosher bird (Gemara) and not a non-kosher bird. And in all types of kosher birds in the world, the mitzvah of shiluach haken applies. And even if there is only one chick or one egg under the mother, one is obligated in shiluach. And that which is written "chicks" or "eggs" in the plural, it is the way of the verse to write in the plural, as it is so in most nests; but nevertheless, even one chick or one egg is called a "ken" (Gemara here).

And even though if the mother is a terefah one is obligated in shiluach, for if it were not so, why would I need "bird" to exclude an impure bird? Since if a terefah were exempt, certainly an impure bird would be; rather, it is certainly to teach that for a terefah one is obligated (Gemara ibid.). And this is regarding the mother, but regarding the offspring, when they are terefah, one is exempt even when the mother is kosher, as it is written: "and the young you shall take for yourself," and we expound: and not for your dogs, and a terefah is not fit for us ourselves. And likewise, if the eggs were addled and they are as if decayed, one is exempt from shiluach. And likewise, if the chicks were so large that they are able to fly on their own, one is exempt from shiluach. And so the sages taught in the Mishnah there: "And the mother is sitting upon the chicks or upon the eggs"—just as chicks are viable, so too eggs must be viable, excluding addled ones; and just as eggs need their mother, so too chicks must need their mother, excluding those that fly. And likewise, specifically the mother sitting, but if the male is sitting upon them, one is not obligated in shiluach even though we know that he is their father, such as a pigeon which only mates with its partner.

An impure bird crouching upon the eggs of a pure bird, or a pure bird crouching upon the eggs of an impure bird, is exempt from shiluach. However, a pure bird crouching upon eggs of a pure bird, even if they are not of its own species—for example, a hen crouching upon goose eggs or pigeon eggs, and so too in any similar case—is obligated in shiluach since both are pure. Nevertheless, the Rambam ruled that if one did not send it away, he does not receive lashes, because this is a query in the Gemara there. And from the sugya of the Shas there, it is explicitly implied that there is one species of bird called "korei" which is certainly obligated when it sits upon any species of eggs whatsoever, provided they are pure, because such is its way. The Rambam omitted this, and it seems to me his reason is because it is not known to us what it is, and if so, everything is automatically in doubt. The Tur cited this, see there, and he cited another opinion that except for the korei, one is exempt from shiluach, but for the final law he agreed with the Rambam, see there.

Shiluach haken does not apply to birds that have owners and are raised in their houses, their courtyards, their acquisitions, and their fields. Therefore, geese, chickens, and pigeons in a dovecote that are raised in the domain of owners are not subject to shiluach, for it is written: "If a bird's nest chances before you," and it is not a "chance" when they have owners. And thus the sages taught in the Mishnah there, that shiluach haken only applies to that which is not "prepared," meaning that they have no owners and were raised in the ownerless wild. And even a chicken that fled from the house and rebelled and did not return, and is raised in the field like an ownerless animal and the owners have despaired of them, its law is like an ownerless animal and it is subject to shiluach (Gemara).

This is the wording of our teacher, the Beit Yosef, in section 2: A nest that is prepared for him, such as pigeons that typically grow with people in houses, and geese and chickens that nested in the house, is exempt. However, pigeons of a dovecote or an attic, and birds that nested in crevices (in walls where birds nest) or in pits, and geese and chickens that nested in an orchard, one is obligated. This is provided that the mother was not raised from upon the eggs at all from the time she laid them; but if the mother was raised from upon them, if these places are his, his courtyard has acquired them for him, and it becomes prepared for him and is exempt. Thus far his words.

The explanation of the matter is that we maintain that a person’s courtyard acquires for him without his knowledge in a guarded courtyard, as is written in Choshen Mishpat siman 200 and siman 268. If so, why is one obligated regarding those that nested in an orchard? For the orchard has owners, and they should have acquired them, and they should be considered "prepared" and exempt from shiluach. However, our sages of blessed memory said there that it is forbidden to acquire eggs as long as the mother is crouching upon them, and consequently, his courtyard also does not acquire for him; for since he himself cannot acquire, his courtyard does not acquire for him. Therefore, when the mother was raised from upon them of her own accord, such that he is able to acquire them, his courtyard also acquired for him, and they become "prepared" and are exempt from shiluach.

And in every place where the nest is found, one is obligated in shiluch, whether in a tree, or on the ground, or in pits, ditches, and caves. And similarly, one who finds a nest in the sea, such as where a tree was uprooted with a nest and cast into the sea, for it is written "on the way," and the sea is called a way, as it is written: "Who makes a way in the sea" (Gemara). And similarly, if he found a nest on a person's head, like the wild men in the land of India who isolate themselves in the forests in one place and soil gathers on their heads, and due to the abundance of birds, there are those that make nests on their heads; and similarly on the heads of other animals. And this is like being on the ground, for it is written: "and earth was upon his head" (Gemara). And whether in a reshut harabim or in a reshut hayachid, or in fields, vineyards, forests, and deserts, one is obligated in shiluch. And if he sent it away and it returned to the nest while the eggs or the chicks were still there, he is obligated once more to send it away, and even a hundred times, as it is written: "You shall surely send away" [shallach teshallach]—even several times (Gemara). But if he took the young from the nest, even if he returned them to the nest and the mother returned to them, they are considered "prepared" [mezuman] and he is exempt from shiluch, for he has already acquired the young.

We learned in a Mishnah (138b): The sending away of the nest applies to chullin and not to consecrated animals, for one is unable to fulfill "you shall surely send," as one must bring it to the sanctuary. And if it is difficult, for even without this it is not found, since once he consecrated it, it is presumably his, for a person cannot consecrate a thing that is not his, and if so it would be like that which is "prepared"? One can say that it is found where he consecrated a hen for the repair of the Temple and it rebelled and flew away from him; for in chullin in such a case it leaves his domain and the sending away applies to it, as I wrote in section 14, but in consecrated property it does not leave the domain of the sanctuary, for in every place that it is, it belongs to the sanctuary, as it is written: "The earth and its fullness are the Lord's" (Gemara). Therefore, even though it left his domain, it is not subject to sending away because he must hand it and its young over to the treasurer, as the Rambam wrote at the end of chapter 13; see there.

Our teacher, the Beit Yosef, wrote in section 9: If there was a cloth, or wings of feathers from another bird, or addled eggs separating between her and the nest, or if there were two rows of eggs one upon the other and her wings touch the upper row, or if there was a mother bird upon a mother bird, or if the male was upon the nest and the mother was upon the male, behold, one must send away, and if he did not send away, he is not flogged. Thus far his words. For all these are inquiries in the Gemara that were not resolved. And regarding eggs upon eggs, the intention is that he desired to take the lower ones; and regarding the upper ones, the doubt is whether the lower ones are considered as placed elsewhere and not in the nest, and it would be permitted to take them, only perhaps the upper ones do not constitute an interposition and it is forbidden to take them, and therefore it was a doubt. But regarding the upper ones and the mother, there is no doubt, for behold, the mother is brooding upon them and he is obligated to fulfill the mitzvah of shiluach haken regarding them. And if he took the mother or the eggs before sending away the mother, he is certainly flogged as in every case of shiluach haken (Shach, subsection 14). And we learned from this regarding every case of shiluach haken, that if he took the young before he sent away the mother, behold, he is flogged, for the Torah commanded first "you shall surely send away the mother" and afterwards "the young you may take for yourself."

He further wrote that if one slaughtered a portion of the simanim of the chicks within the nest before taking it, he must send away [the mother], and if he did not send it away, he does not receive lashes. Thus far his words. This means that there is a doubt, for if he were to leave it so and not complete the slaughter, they would be treifah and he would not be obligated in shilah, or perhaps since it is in his power to complete the slaughter, we read regarding them "you may take for yourself" and they are subject to shilah. And this is dealing with a case where at the time he slaughtered he took the mother, such as if he slaughtered with one hand and took the mother with his second hand, and there is not even a moment of shehiyah. And even if there is a moment of shehiyah, although we are stringent as written in siman 23, nevertheless most of the poskim permit it as written there, and therefore regarding shiluach haken one should not be lenient (Shach, subsection 15).

If she was hovering over the nest, if her wings touch them, one is obligated to send her away, and if not, one is exempt, even if they touch from the side. The Rambam ruled that if they touch from the side, one is obligated, and that which is explained in the Gemara—that one is exempt—that is in a case where she is hovering from the side, but not when she is hovering over them (Taz, subsection 12). Many disagree with him on this. If she was sitting between the eggs or between the chicks, even if she touches them, one is exempt, as it is written "upon the chicks" and not between them. If she was sitting upon two branches of the tree and the nest is beneath her, we see: whenever she would drop herself from the tree she would fall upon them, one is obligated, for we read in this "and the mother is crouching upon the chicks etc." and if not, one is exempt. The mother that one is obligated to send away is forbidden even for a matter of a mitzvah, such as to purify a metzora with her (Mishnah).