Question: Must you perform Shiluach HaKein if you see a bird’s nest and you don’t plan on using the eggs? Should you fulfill it?
Short Answer: You should fulfill the mitzvah of Shiluach HaKein according to most poskim, but only if you acquire the eggs by lifting them up.
Explanation:
I. Eggs or No Eggs?
There is a fundamental question with Shiluach HaKein: Is there an obligation to send the mother bird away even if you don’t need the eggs (i.e., a mitzvah chiyuvis) or is the obligation only when you happen to need the eggs (i.e., mitzvah kiyumis)? This question is discussed by many Acharonim, including the Chavos Yair (67) and the Chasam Sofer (100). See also Minchas Asher (Ki Seitzei, siman 57).
II. The Chavos Yair
The Chavos Yair (ibid), Rav Yair Chayim Bacharach (d. 1702), discusses this question and proves that Shiluach HaKein is a mitzvah chiyuvis, an obligation on you to fulfill this mitzvah should you happen upon a bird’s nest, regardless of whether you need the eggs.
The Gemara (Chulin 139b) asks why the pasuk states “ki yikarei,” when it separately commands to send the mother bird away. The Gemara answers that had the pasuk simply written the command to send the mother bird away, one would have thought that we are commanded to go to the mountains to find a bird nest. Therefore, the pasuk writes “ki yikarei” – you are only obligated to do the mitzvah if you happen upon a bird. You do not need to seek it out in the mountains. Since the Gemara entertained the possibility that one would need to search for bird nests in the mountains, the obligation for Shiluach HaKein must be chiyuvis, incumbent on you to perform (regardless of the need for the eggs). Indeed, according to the conclusion of the Gemara, you don’t need to go to the mountains; but certainly if you see a nest in your vicinity, you are obligated to send the mother bird away (regardless of the need for the eggs). This is the proof of the Chavos Yair.
The Chavos Yair further proves that Shiluach HaKein is a chiyuvis regardless of the need for eggs based on the reason for the mitzvah according to the Zohar. See Article #1. The Zohar explains that by sending away the mother bird, we cause tremendous anguish to the mother and thereby cause her “sar” (representative mal’ach) to cry out to Hashem. Hashem in turn responds with mercy to all people suffering, especially the B’nei Yisrael. There is thus a mitzvah chiyuvis to cause this salvation from Hashem by sending away the mother bird.
The Chavos Yair, however, attacks this reasoning from another Gemara in Chulin (140b). The Gemara lists several queries about the mitzvah of Shiluach HaKein, including wondering what the halachah is where there are two layers of eggs (one on top of the other) in a nest. Rashi (according to the Rashba’s explanation of Rashi) understands the Gemara as querying only in a case where you already violated the prohibition and caught the mother bird with intent to keep it. The Gemara is asking whether you actually violated the prohibition by taking the mother bird in a situation where you only want the bottom layer of eggs in the nest. Perhaps the top layer serves as a buffer, and you do not violate the prohibition of taking the mother bird. Tosafos, on the other hand, understands the Gemara as asking whether you may take the bottom layer of eggs despite the mother bird STILL sitting on the eggs, albeit on the top layer.
According to Tosafos, clearly there is only a mitzvah kiyumis to perform Shiluach HaKein if you need the eggs. If there was a chiyuvis obligation, how would taking the bottom layer of eggs solve any problem? You still need to send the mother bird away because of the mitzvah chiyuvis with respect to the top layer of eggs. Rather, Tosafos holds that Shiluach HaKein is only a mitzvah kiyumis if you need the eggs. Thus, since you only need the bottom layer of eggs – and the top level perhaps serves as a buffer to the mother bird – the Gemara entertains the possibility that you may take the bottom eggs and not need to do Shiluach HaKein to the mother bird.
The Chavos Yair answers that because of this problem, i.e. that Tosafos learns that Shiluach HaKein is only kiyumis if you need the eggs, Rashi learns the Gemara differently, as explained above.
III. Questions of Rav Asher Weiss
Rav Asher Weiss shlita (Minchas Asher, ibid) questions the proof of the Chavos Yair from the Gemara in Chulin (139b). Why would there even be a “hava amina” (initial thought) that a person must go seek bird nests in the mountains to fulfill this mitzvah chiyuvis of Shiluach HaKein? Are people supposed to spend their entire lives roaming through forests and mountains looking for bird nests? Rav Asher even challenges the Chazon Ish – who explains that the obligation would be once in a person’s life – as we don’t find such a concept by mitzvos chiyuviyos.
Rather, Rav Asher suggests that the Gemara should be interpreted differently, based on the Meiri. The Meiri interprets the Gemara that originally it thought that the mitzvah was chiyuvis – that you even need to search for it in the mountains, even if you don’t want or need the eggs. The Gemara concludes, however, that it is only kiyumis, you only fulfill it if you happen upon a nest and you need the eggs. Thus, according to Rav Asher, the very Gemara that the Chavos Yair holds proves chiyuvis, actually holds it is kiyumis.
IV. The Chasam Sofer
The Chasam Sofer (ibid) disagrees with the Chavos Yair and holds that Shiluach HaKein is a mitzvah kiyumis. First, though, the Chasam Sofer cites contrary proofs from two different sources in the Gemara with Rashi’s interpretation. The Gemara (Chulin 141b) sets forth a scenario where the mother bird has laid most of an egg. The Gemara, according to Rashi, explains that the person is obligated to do Shiluach HaKein at this point. He is obligated even if he doesn’t need the egg, as the egg itself is not even available yet. However, there is a similar Gemara with Rashi (Bava M’tzia 102a) who phrases it a bit differently. It implies that the obligation only occurs should the person want the eggs.
The Chasam Sofer subsequently proves from the Mishnah (Chulin 142a) that Shiluach HaKein is a mitzvah kiyumis. The Mishnah states that we learn from Shiluach HaKein the reward for performing mitzvos. If Shiluach HaKein, “which only costs an isar (small monetary amount),” has a reward of long life, so too other mitzvos which cost much more, surely they have an even greater reward. If Shiluach HaKein is chiyuvis, what “cost” exists? You don’t want the eggs or mother, so what do you lose by sending the mother bird away? Rather, the mitzvah is kiyumis and you need the eggs and mother, so the “cost” is the loss of the mother.
The Chasam Sofer supports his view that Shiluach HaKein is a mitzvah kiyumis based on the words of the Sefer HaChinuch. The Chinuch writes that the extra words of the pasuk “v’ha’banim tikach lach” teach that if you fulfill the mitzvah of sending away the mother bird, you will be rewarded by having sons. Clearly, there is no mitzvah to take the eggs, and if there were, the words would not be able to teach the reward of having sons.
The Chasam Sofer likewise attacks the proof of the Chavos Yair that it is chiyuvis based on the reasoning of the Zohar. The mitzvah of Shiluach HaKein applies even in times of peace, such as the days of King David and King Shlomo. If so, how can there be a mitzvah chiyuvis to send away the mother regardless of the need for eggs, simply to help klal Yisrael have salvation – not all times need salvation!
IV. Practically Speaking
Rav Asher Weiss concludes that if you don’t really need the eggs, you don’t need to (and perhaps should refrain from doing) the mitzvah of Shiluach HaKein. However, if you are anyway going to remove the nest (such that it is dangerous, etc.), you should perform the mitzvah. He also notes the many poskim who suggest that you should run to fulfill the mitzvah generally (even if you don’t need the eggs) because of kabbalistic ideas and s’gulos. See also Pischei Teshuvah (Yoreh Dei’ah 292:1).
The sefer Shalei’ach T’shalach (p. 37) cites the language of the Chofetz Chaim (Sefer HaMitzvos HaKatzeir, asei 74) who implies that the only obligation to fulfill the mitzvah is when you want the eggs.
Rav Chaim Kanievsky (Shalei’ach T’shalach, p. 112) was asked whether you fulfill any mitzvah of Shiluach HaKein according to the Chavos Yair if you don’t acquire the eggs. He responded, no, there is no mitzvah. He was subsequently asked whether you should perform Shiluach HaKein if you won’t acquire the eggs afterwards (i.e., they are too high), so you can at least fulfill the mitzvah according to the Chasam Sofer. He responded: No, don’t shoo the mother away, as it is tzaar baalei chayim according to the Chavos Yair.
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..
