This week’s parsha is full of mitzvos, in fact, it contains 27 mitzvos aseh [positive commandments] and 47 mitzvos lo saseh [negative commandments], which makes it rather difficult to choose a topic to discuss. However, this past summer I merited to fulfill the mitzvah of shiluach hakan numerous time (or at least I thought I did before looking into the halachos), as literally every time I went outside onto my balcony, I discovered another bird’s nest, therefore, I have decided that we will discuss the mitzvah of shiluach hakan. We will see below that carrying out the mitzvah is more difficult than it seems, and without knowing some basic halachos it is likely that one will not carry out the mitzvah in the optimum manner.
Is there any reason to fulfill the mitzvah of shiluach hakan if one doesn’t need the eggs or fledglings? After performing the mitzvah once, should one look to do it again? How much effort needs to be invested in the mitzvah? Is one obligated to send away the mother bird every time he sees a nest? What if the nest is in a hard-to-reach spot? What is the reason for the mitzvah of shiluach hakan? When is fulfilling this mitzvah unnecessary? Can the mitzvah be performed on Shabbos and Yom Tov? May one wear gloves when fulfilling the mitzvah? Of this and more below.
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In this week’s parsha we have the pasuk: כי יקרא קן צפור לפניך בדרך בכל עץ או על הארץ אפרחים או ביצים והאם רבצת על האפרוחים או על הבצים לא תקח האם על הבנים: שלח תשלח את האם ואת הבנים תקח לך למען ייטב לך והארכת ימים – “If a bird’s nest chances before you on the road, on any tree or on the ground, and [it contains] fledglings or eggs, if the mother is sitting upon the fledglings or upon the eggs, you shall not take the mother [from] upon the young. You shall send away the mother, and [then] you may take the young for yourself, in order that it should be good for you, and you should lengthen your days” (Devorim 22:6-7). The mitzvah of shiluach hakan consists of two parts – a mitzvos aseh: sending away the mother and taking the eggs or fledglings; and a mitzvos lo saseh – not taking the mother along with her eggs or fledglings. This is one of the two mitzvos aseh for which the Torah promises reward — longevity. The only other mitzvah that carries the same promise is the mitzvah of honoring one’s parents.
The Basic Mitzvah and Its Purpose
The basic Torah mitzvah is that when we wish to take chicks or eggs, we must not take the mother-bird together with its young. Rather, the mother-bird must first be sent away, before the chicks or young are taken.
The purpose of the mitzvah seems to be to ensure humane behavior. It is permitted to utilize other creatures, but it is forbidden to cause undue pain or suffering in the process.
Thus, the Rashbam points out two other mitzvos that guide us in a similar direction: the prohibition against cooking a kid in its mother’s milk (Shemos 23:19) and the prohibition against slaughtering a cow and its offspring on the same day (Vayikra 22:28). In these three cases, the Torah is concerned with the special bond between animals and their young, and commands us to respect it and refrain from causing animals to suffer.
The Rambam (Moreh Nevuchim 3:48) also writes that by sending away the mother bird “she is spared the pain of losing her offspring.”
What If I Have No Interest in an Omelet?
I think it’s safe to say, that most people reading this halachah write-up purchase their chicken eggs in the supermarket, and nowadays we have no need for wild eggs or fledglings. In-fact on the numerous occasions that I carried out the mitzvah of shiluach hakan this past summer, I offered to bring the eggs inside the house to be cooked for Shabbos, and I was told to make sure to keep the eggs outside the house, and to keep them well away from the kitchen. The question therefore is, is this mitzvah still relevant nowadays? Is performing it necessary, or is doing so simply inflicting unnecessary pain on animals?
What Category of Mitzvah Does Shiluach Hakan Fall Into?
The Torah contains several types of mitzvos. Some are required for their end result — when one wishes to eat meat he must identify the kashrus signs of the animal, slaughter it and cover its blood; one who wishes to eat bread from the five species must remove challah from the dough. However, there is no mitzvah to run after animals to investigate their kashrus status, slaughter them, cover their blood, and then discard the meat.
On the other hand, there are mitzvos which people must perform whether or not the results are desirable: eating matzah on Pesach night, eating in the succah on the first night of Succos etc.
Then there is another category of mitzvos – those where performance is important, despite the fact that the mitzvah is linked only to certain circumstances: e.g. mezuzah and tzitzis. While one whose home does not have any doorways does not require a mezuzah and therefore has no mezuzah; or if one does not have a four cornered garment that requires tzitzis and therefore has no tzitzis, in a time of danger one who lacks these mitzvos will be punished and performing them is very important.
Where does shiluach hakan fit in? Which category does it belong to?
Machlokes
The Chavos Yoir (siman 67) discusses this question and rules that only one who happens to find a bird’s nest is obligated in the mitzvah. He cites numerous proofs for his postulation. One of them is the following:
The Gemara (Chullin 139b) asks if one is obligated to search in the mountains for a bird’s nest to fulfill the mitzvah. It answers with the pasuk: “If a bird’s nest chances before you” — this mitzvah obligates only one who chanced upon a bird nest. One is not obligated to search for a nest to fulfill the mitzvah. The Chavos Yoir understands that lacking this explicit pasuk, we would have indeed been required to comb hills and mountains in search of a bird nest. Therefore, he understands that if this mitzvah would have only referred to one who wants the eggs or fledglings the Gemara would not have asked if one is obligated to comb the hills or mountains. Therefore, the Gemara here infers that while there is no need to actively search for it, it is certainly a mitzvah to perform shiluach hakan if one chances upon a bird nest, even if the eggs or fledglings are not wanted.
The Meiri (Chullin 139b) writes that this is not a mitzvah one must actively seek, and even if one chances upon them, there is no point in taking the eggs unnecessarily. (While the Meiri preceded the Chavos Yoir by nearly 400 years, the Meiri’s writings had not yet been printed during the Chavos Yoir’s lifetime).
We see that there are two ways to understand the Gemara – either the pasuk reveals that the mitzvah is only relevant to one who wants to take the eggs or fledglings; or – one should perform the mitzvah, and while not obligated to actively seek it, if he chances upon it, he is obligated to perform it, regardless of his need for the eggs.
The Chida (Birkei Yosef, Yoreh Deah 292:8); Rabbi Akiva Eiger (Hago’as on the Shulchan Aruch, Yoreh De’ah 292:1) and Aruch HaShulchan (Yoreh De’ah 292:4) follow the Chavos Yoir. However, there are other Achronim who disagree (we will mention them below).
Seeking to Fulfill the Mitzvah
The Chazon Ish (Yoreh De’ah 175:2) points out that there is another difficulty in this Gemara: Had there not been a pasuk saying: “If a bird’s nest chances before you” we would have been obligated to comb mountains and hills to search for a nest and fulfill the mitzvah. The only question that remains is to what extent. Would one have to spend his entire lifetime looking for a nest to send the mother bird away and take her eggs?
The Chazon Ish answers that lacking the pasuk we would have been obligated to comb the mountains at least once in our lives to find a bird nest and send away the mother bird. Rabbi Chaim Kanievsky zt”L writes (Orchos Yosher – Simcha Shel Mitzvah) that while it is certainly important to perform every mitzvah at least once in our lifetimes, this mitzvah is not included, and there is no point in fulfilling it even once. This concept will be explained below.
Investing in a Mitzvah
As mentioned above, the Chavos Yoir (and other Achronim as will be detailed below) maintain that if one chances upon a bird nest, he is obligated to send the mother bird away, even if he doesn’t want the fledglings. But how much is one obligated to invest for it? What if the nest in high up and reaching it requires a great investment of time and effort?
The Medrash tells a story to illustrate the effort people invested in this mitzvah (Tanchuma, Ki Seitzei 2): “There was once a person who went up to the treetop to fulfill the mitzvah of shiluach hakan and fell and died, as it says: ‘If a bird’s nest chances before you on the road’ not that you see it on the tree top and especially not to endanger one’s self.” This Medrash seems to indicate that this person didn’t need the eggs (had he needed them, climbing to a treetop for his sustenance would have been permitted), and only climbed the tree in order to fulfill the mitzvah of shiluach hakan.
While fulfilling the mitzvah is certainly important, it should be performed only if it does not require special effort. Placing one’s life in danger is certainly not required, and doing so for this mitzvah will not earn the performer the Torah’s promise of longevity.
Taking the Eggs
The Chacham Tzvi (siman 83) notes that the Elders of Lublin were disputed if taking the offspring is part of the mitzvah or not. Can the mitzvah be fulfilled by leaving them in the nest?
The Chacham Tzvi proves from various sources that taking the eggs or offspring is not necessary, and the main mitzvah is sending away the mother bird. The pasuk: “And [then] you may take the young for yourself” is not part of the mitzvah, only a permission: once the mother bird is sent away, the offspring are permitted. This is similar to the pasuk: “Six days may you work and perform all your labor” (Shemos 20:9). There is no obligation to work for six days. The mitzvah is only to refrain from work on Shabbos.
To summarize this position: One who meets up with a bird nest is obligated to fulfill this mitzvah and send the mother bird away, even if he has no need for the fledglings. The Chida (Birkei Yosef, Yoreh De’ah 292:6); Rabbi Akiva Eiger (Hago’as on Shulchan Aruch, Yoreh De’ah 292:1); and Aruch HaShulchan (Yoreh De’ah 292:4) all follow the Chacham Tzvi. However, the Chida quotes the Beis Lechem Yehudah who quotes the Zohar who requires that the eggs or offspring actually be taken in order to fulfill the mitzvah properly. The Aruch HaShulchan writes that one should preferably do so since it is required by the Zohar.
Kabbalistic Sources
The Chavos Yoir adds that the reason behind this mitzvah is mentioned in the Zohar (Tikunei Zohar 23a, cited by Rabbeinu Bechayeh): Once the mother bird reappears and notices her offspring gone, she will, in distress, go searching for them. This, in turn, will arouse Hashem’s mercy for His exiled children. Therefore, taking the eggs is a necessary component, as well as preforming the mitzvah on every bird’s nest one finds.
The Chasam Sofer (Orach Chaim 100) writes that according to this explanation, it would seem that preforming this mitzvah is only vital while we are in galus [exile], but when the Beis HaMikdosh stands there is no point in fulfilling it. How could that be? He answers that taking the mother with her offspring is forbidden always, whether or not the Beis HaMikdosh is standing, because a transgression remains forbidden regardless of the reason we think we understand. He continues and explains that while it appears as if the Bavli disagrees with the Zohar (because there is no difference if the Beis HaMikdosh is standing or not regarding this mitzvah) where the two do not coincide, we follow the revealed Torah and not the hidden one.
Fulfilling all 613 Mitzvos
The Chida (Birkei Yosef 292:8) notes that according to the Arizal, every time this mitzvah presents itself it should be fulfilled. The Chida doesn’t explain the meaning of this passage, but it appears to refer to the concept that one must fulfill all 613 mitzvos at least once in his lifetime. Each mitzvah connects each of our 613 limbs and sinews to its spiritual limb, and from it – to its parallel Divine source. One must fulfill all the mitzvos in order to enjoy full connection with Hashem. One who fails to fulfill a mitzvah will be lacking in that spiritual aspect in his spiritual body. The Chofetz Chaim warns to be very scrupulous in this (Torah Ohr, Perek 4).
The Vilna Gaon was known to make sure to fulfill every mitzvah at least once in his lifetime (Ma’aseh Rav 94-95).
Rabbi Chaim Kanievsky (Orchos Yosher, Simcha Shel Mitzvah) writes that one should make sure to fulfill every mitzvah at least once in a lifetime, even those he is not required to fulfill because of his circumstances. Even a non-farmer should rent a field to fulfill the agricultural mitzvos of the land. For mitzvos he cannot fulfill such as the mitzvos given to kohanim, he instructs to learn the halachos so the learning should take the place of actually doing them. However, Rabbi Chaim Kanievsky understands that the Chazon Ish indicates that this mitzvah of shiluach hakan is different – since there is an explicit pasuk teaching that there is no need to actually fulfill the mitzvah, and as long as one didn’t see a bird’s nest and pass it by, one’s spiritual body will remain intact. The Chida, though, seems to indicate that fulfilling this mitzvah, at least once in a lifetime, is very important.
The Zohar tells us (Vayakhel 198a): Every mitzvah that presents itself is a gift from Heaven, and when one shows his gladness in the mitzvah he illustrates how beloved Hashem’s gift is to him. Therefore, one who walks away from it expresses his disregard of the gift Hashem sent him, which is the ultimate lack of gratitude.
Rishonim
The Chavos Yoir (siman 67) writes that Tosfos (Chullin 140b) seems to indicate that fulfilling the mitzvah is required even if one has no need for the eggs or fledglings. However, the Rashbah (Chullin 140b) does not obligate it. Other Rishonim (including the above mentioned Meiri); Rabbeinu Yonah; Ran (Chullin 139a); Rokeach (Al HaTorah 22:6-7); Rabbeinu Bechaye (22:6-7) also follow this understanding.
The Birkei Yosef (Yoreh De’ah 292:6) understands from the Ramban, Rashbah, and Ritva (Chullin 140b) that there is, indeed, importance in fulfilling this mitzvah despite not wanting the offspring. This is also the Ohr Someach’s understanding of the Ramban (Kiddushin 34a).
Inappropriate Times
Mekubolim write that during the sefirah or the shemitta year fulfilling this mitzvah is inappropriate.
[Rav Yosef Shalom Elyashiv recounted that in 2001, an old Jewish woman who lived in the Ezras Torah neighborhood in Yerusholayim was visited by her grandson. When he noticed a bird sitting on eggs in a nest in her yard, he asked his grandmother for her consent to fulfill this rare mitzvah.
Astonishingly, the old woman refused to give him permission to do so until he first asked the neighborhood Rav if he should perform this mitzvah. The grandson, who was a talmid chocham, politely asked his grandmother to explain what concern she could possibly have that would prevent him from fulfilling a mitzvah de’O’raisa. To his surprise, his grandmother responded that that year was a shemittah year, and she was worried that perhaps it is inappropriate to send away the mother bird during shemittah. Her grandson respectfully explained that the laws of shemittah forbid a person to work in his fields, but have no connection to the mitzvah of shiluach hakan. Nevertheless, the old woman remained adamant in her position that she would not allow her grandson to send away the mother bird until he first consulted the local Rav, who was Rav Simcha Bunim Waldenberg, the son of the Tzitz Eliezer. When the embarrassed grandson presented his “question” to the Rav, Rav Waldenburg excitedly responded that only a few minutes earlier, somebody had shown him that the Reshash (one of the greatest Kabbalistic sages of the past 300 years, whose full name was Rav Shalom Sharabi) writes that performing this mitzvah during a shemittah year can cause a person damage and harm. In fact, the sefer Kan Tzipor quotes the Reshash as maintaining that one should not perform this mitzvah during the 7-week period between Pesach and Shavuos, nor from Rosh Hashanah until Shemini Atzeres, as the deeper mystical rationale for the mitzvah does not apply at these times.
When Rav Elyashiv recounted this story, he expressed his tremendous wonder and admiration for the simple faith and complete trust in the Sages of a woman from an earlier generation. Nevertheless, as a matter of practical Jewish law, Rav Chaim Kanievsky, Rav Yaakov Hillel, and Rav Yitzchok Zilberstein all rule that a person who has the opportunity to fulfill this mitzvah should do so even during these periods, explaining that the words of the Reshash are intended only for those who conduct their entire lives according to mystical teachings, whereas ordinary people should follow the rulings of the revealed Torah and Shulchan Aruch, which makes no such distinctions and indicates that the mitzvah may be performed at these times.]
Shabbos and Yom Tov
The Chasam Sofer writes that this mitzvah is not performed on Shabbos and Yom Tov, since no anguish should be aroused in the upper worlds on these days. Since the kabalistic reason for the mitzvah is to arouse the Divine mercy for Hashem’s exiled children, it should not be performed on Shabbos. Therefore, even according to the opinions that require one to fulfill this mitzvah every time the opportunity presents itself, and it should have taken precedence to the prohibition of muktzeh, since these opinions see the main reason for fulfilling it as the one mentioned in the Zohar, this mitzvah should not be performed on Shabbos and Yom Tov. (See also Shevet HaLevi 1:32)
Wearing Gloves
Halachah lemaseh, one fulfills the mitzvah of sending away the mother bird, by making a noise or using a stick, however, the Rambam (Hilchos Shechitah 13:5) learns that one should actually remove the mother bird using his hands. The lashon of the Gemara (Chullin 141b) also seems to follow the Rambam. The Gemara says: נוטלה בידו ומפריחה – “take it in the hand and make it fly away”. If one wants to be stringent for the opinion of the Rambam and use his hands, however, he is scared to touch the bird, either because of general hygiene or because he is scared of catching something from the bird, is it ok to wear gloves, or is doing so a disgrace to the mitzvah?
It would seem that specifically when it comes to mitzvos like holding a sefer Torah and shechitas kodshim, where there is an “item of kedusha” or “item of a mitzvah” it’s a disgrace to wear gloves, however, when there is no such item it would seem that it’s ok. When it comes to shiluach hakan, the bird is not an “item of kedusha”, therefore, it would seem to be ok.
R’ Eliyohu Schlezinger (Giloh, Yerusholayim) writes: “One can fulfill the mitzvah using a stick, therefore, certainly it’s ok to wear gloves. The bird has no holiness, and the mitzvah is to “send”. It doesn’t make a difference how, the main thing is that it is send with the power of the sender”.
However, when R’ Chaim Kanievsky was asked this (Halichos Chaim, Vol. 2, pg. 147) he said: “It’s better to fulfill the mitzvah without any chatzizos [external items in the way].” (For more on this, and for a lengthy discussion of which mitzvos can be done wearing gloves and which ones not, see the newly released sefer Losuach Basodeh siman 3)
Details of the Mitzvah
The mitzvah of sending away the mother bird includes many halachic details, which one must know to carry out the mitzvah properly. The following is a short summary:
- Only kosher birds are appropriate for the mitzvah. One may use birds concerning which we have a concrete tradition (pigeons, doves, geese, ducks) and even birds that exhibit kosher signs, even though they lack a tradition that would permit their consumption (sparrows, robins, cardinals, orioles). (See Shu”t Minchas Elazar 3:43).
- The mitzvah is fulfilled only when the mother bird is roosting. It is difficult for a lay person to distinguish between the mother bird and the father bird. It can be generally assumed that the mother bird roosts at night, so the mitzvah should be fulfilled at night. (If both birds are by the nest, then it would be ok to do by day as well.)
- The mitzvah cannot be fulfilled on a kan mezuman, a “prepared nest” (Chullin 138b; Shulchan Aruch 292:2). According to some poskim, the mitzvah thus applies only to nests in public places, which are not privately owned (Birkei Yosef 292:3; Minchas Shlomah 2:97:26; Chochmas Adam 105:3). However, most poskim agree that even when the nest is on private property, the owner can be mafkir the nest (render it ownerless by declaring it such in front of three men), and then perform the mitzvah. Some add that since today nobody is interested in owning pigeon eggs, we consider nests to be ownerless (hefker) even without this formal measure (see at length, Shu”t Moznei Tzedek). Some authorities recommend declaring all present and future nests on one’s property to be ownerless, in advance.
- Once chicks develop the capability to fly on the own, the mitzvah can no longer be fulfilled (Shulchan Aruch 292:7). This is usually approx. two weeks after hatching.
- Upon taking the eggs and/or chicks one must make a proper halachic kiyan [acquisition]. They should therefore be lifted to a height of three tefochim (approx. 12 inches).
- Upon completion of the mitzvah, one may put back the eggs or chicks, and need not keep them. If they are declared hefker, ownerless, others will be able to perform the mitzvah if the mother bird returns to the nest.
- The mitzvah can be performed by men, women, and children. It may not be carried out on Shabbos or Yom Tov (see Chasam Sofer, Orach Chaim 100).
- The mother bird can be sent away by gently tapping a stick on the nest, or by clapping one’s hands. According to the Rambam (Hilchos Shechitah 13:4) it...
