In Your Courtyard
Question: May you fulfill Shiluach HaKein with a bird and a nest on your front lawn?
Short Answer: There are certain ways for a person to fulfill Shiluach HaKein with a bird and nest on his front lawn.
Explanation:
I. The Source
The Mishnah (Chulin 138b) writes that there is no mitzvah of Shiluach HaKein on birds that are “m’zuman” – prepared. Rashi explains that the source is the pasuk “Ki yikarei” – that in order to fulfill Shiluach HaKein you need to “happen upon” a mother bird and her eggs.
The Gemara and Rashi (Chulin 139a) define what it means to “happen upon” a bird and fulfill the mitzvah. You can only fulfill Shiluach HaKein if you don’t own the eggs. In other words, you cannot fulfill Shiluach HaKein if the nest with the eggs is on your property. Property includes a courtyard that is “mishtameres” – guarded or protected. Indeed, the halachah is that a courtyard acquires items for its owner even without the owner’s knowledge. See Shach (Choshen Mishpat 268:3).
The Shulchan Aruch (Yoreh Dei’ah 292:2) codifies this halachah. The Shulchan Aruch adds that a person’s courtyard only acquires the birds after the mother bird flies off the eggs at least one time (and returns). Until this occurs, it is forbidden for the person to take the eggs, and thus his courtyard does not acquire the eggs without his consent.
Thus, it appears clear that one has no obligation to perform – nor does he fulfill – the mitzvah of Shiluach HaKein on a nest in his protected courtyard where the mother bird has already flown away once by itself (and returned).
II. The Protected Courtyard
What is considered a protected courtyard for Shiluach HaKein?
The sefer Shalei’ach T’shalach (p. 69) cites Rav Chaim Kanievsky zt”l, who ruled that whether a courtyard is locked or not is irrelevant to the determination of whether it is considered protected or not. Rather, the key determinant is whether the owner is comfortable leaving items in the courtyard without the fear of them being stolen.
To that end, the sefer Shalei’ach T’shalach (ibid) cites Rav Kanievsky and the Chazon Ish who ruled that a nest that is up high in a shul or other public building is not considered protected. Similarly, they ruled that a nest in a stairwell of a jointly owned apartment building is not considered protected.
III. Any Workarounds?
Is there any way to fulfill Shiluach HaKein in a protected courtyard?
Rav Moshe Feinstein zt”l (Igros Moshe, Yoreh Dei’ah 4:45) writes that if the owner of the courtyard claims that he never wanted his courtyard to acquire the nest, as it is not beneficial to him, the courtyard never acquires the nest. This works even retroactively. Shiluach HaKein may thus be performed in such a courtyard.
The sefer Shalei’ach T’shalach (pp. 69, 116) cites a similar ruling from Rav Chaim Kanievsky. However, Rav Kanievsky appears to limit this leniency to cases where the owner intended not to acquire the birds before they hatched. The Shalei’ach T’shalach cites numerous other poskim, including Rav S. Wosner, Rav Chaim Pinchas Scheinberg, and Rav Y. Fischer, who all agreed with this ruling. Moreover, the sefer Shalei’ach T’shalach cites a “gadol” who ruled that you only need to recite one time in your life that you never want your courtyard to acquire any bird nests, and this is sufficient for all future nests.
Nevertheless, Rav Kanievsky adds a leniency that perhaps nowadays that we don’t eat eggs from such nests, the default is that we don’t want to acquire the nest (and thus one my fulfill Shiluach HaKein on a nest in his protected courtyard that he did not know about until after the eggs hatched and the mother flew away and returned the first time).
Rav Shlomo Zalman Auerbach zt”l (cited in the Shalei’ach T’shalach, ibid) disagreed. He held that since you could acquire this bird/nest at any moment (by simply desiring that your courtyard acquire it), the nest is considered “m’zuman” and Shiluach HaKein may not be performed. This stringency applies even if you state that you don’t want your courtyard to acquire the nest before the babies are born.
IV. What About Hefker?
Does it work to simply make your yard hefker (ownerless) after the birds, nest, and eggs are already in the yard?
Rabbi Suliman Ochana (a talmid of the Arizal) is cited in the M’leches Shlomo (Chulin 12:1) as ruling that being mafkir the nest after the eggs already hatched (and your courtyard acquired the nest) does not work to allow you to fulfill the mitzvah of Shiluach HaKein. Since the eggs/nest were already “m’zuman” before the hefker, they cannot lose such status by simply being made hefker. The sefer Shalei’ach T’shalach, on the other hand, cites Rav Chaim Kanievsky, Rav Moshe Feinstein, and others who permit and suggest a person should make his yard hefker even after the eggs are already laid. The person may then fulfill the mitzvah of Shiluach HaKein.
Shalei’ach T’shalach also cites Rav Zalman Nechemiah Goldberg, who explains that this machlokes is dependent on how we view hefker, which is itself a machlokes Acharonim. The K’tzos HaChoshen (273:1) understands that hefker works like a neder in that no kinyan occurs but the mafkir simply forbids himself to the yard. The inheritors of the mafkir may thus undo the hefker after the mafkir’s death (if no one else acquired it in the interim). Accordingly, hefker does not enable the mafkir to perform Shiluach HaKein, as there is no new kinyan removing the “m’zuman” from the birds. On the other hand, the Aruch HaShulchan (273:4) understands that hefker is a kinyan that removes the yard from the mafkir’s possession, thereby enabling him to do Shiluach HaKein.
Rabbi Ephraim Glatt, Esq. is the Associate Rabbi at the Young Israel of Kew Gardens Hills, and he is a Partner at McGrail & Bensinger LLP, specializing in commercial litigation. Questions? Comments? Email This email address is being protected from spambots. You need JavaScript enabled to view it..
