Question: Is it permitted to perform Shiluach HaKein on Shabbos?
Short Answer: According to most poskim, it is forbidden to perform Shiluach HaKein on Shabbos.
Explanation:
I. The Chasam Sofer
The Chasam Sofer (Orach Chayim 100) asks whether one who sees a mother bird sitting on eggs in her nest on Shabbos is obligated to fulfill the mitzvah of Shiluach HaKein. His answer, that it is forbidden to perform Shiluach HaKein on Shabbos touches upon numerous topics we discussed in previous articles.
First, the Chasam Sofer addresses 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. Certainly the Zohar would hold that it is forbidden to perform Shiluach HaKein on Shabbos, so that you don’t cause crying and wailing by the mother bird’s sar in shamayim.
Second, even according to “nigleh” (non-Kabbalistic) sources, it is forbidden to perform Shiluach HaKein on Shabbos based on the way the mitzvah must be performed. According to the Rambam, the mother bird must first be caught with your hands, and only afterwards must you send it away from your hands. See Article #3. Certainly, the Rambam would hold that it is forbidden to perform Shiluach HaKein on Shabbos, as you are trapping the bird. Even if the bird was somehow already trapped, it is still forbidden according to the Rambam, as the bird is muktzah.
The Chasam Sofer does note that, according to Rashi, who holds that you may send the mother bird away by simply waving your hands – and without touching it – it is only forbidden to perform Shiluach HaKein on Shabbos based on the above Zohar. Regardless, the Chasam Sofer is clear that we pasken that it is forbidden to perform Shiluach HaKein on Shabbos.
II. Shalei’ach T’shalach Additions
The sefer Shalei’ach T’shalach (p. 77) cites the ruling of the Chasam Sofer but wonders what the halachah is according to the other poskim who hold that we follow Rashi, and you don’t need to first catch the mother bird to send her away. If you don’t follow the reasoning of the Zohar, it would appear that it is permitted to fulfill Shiluach HaKein on Shabbos.
Nevertheless, the Shalei’ach T’shalach rules it is forbidden to perform Shiluach HaKein on Shabbos, but for a different reason than the Chasam Sofer. We previously discussed that according to many poskim, including the Chavos Yair, the person must acquire the eggs in order to fulfill the mitzvah of Shiluach HaKein. See Article #4. If so, Shiluach HaKein may not be performed on Shabbos, as the eggs are muktzah, as they were not available to the person at the onset of Shabbos because the mother was sitting on them. This is the opinion of Rav Chaim Kanievsky, as well.
The Shalei’ach T’shalach cites a second reason why it is forbidden to perform Shiluach HaKein on Shabbos. Since you need to acquire the eggs, if you did Shiluach HaKein, you would violate the prohibition of making a kinyan (acquisition) on Shabbos.
Further, Shalei’ach T’shalach cites the Sheivet HaLevi (1:32) who brings other proofs from the Zohar to show that Shiluach HaKein should not be performed on Shabbos.
III. Dissenting Opinions
Rav Yitzchak Yosef (Rishon L’Tzion 2:15) notes that his father, Rav Ovadia Yosef zt”l, disagreed and held that you can do Shiluach HaKein on Shabbos, as the prohibition of muktzah is suspended when fulfilling a mitzvah. Indeed, the Chasam Sofer himself addressed this point, but ruled like the Magen Avraham (Orach Chayim 586:25) that one may not use a shofar made by a non-Jew on Yom Tov, as it is nolad, a form of muktzah. In other words, the Chasam Sofer holds that a mitzvah does not suspend muktzah. Others, however, disagree, including the Mordechai. Thus, Rav Ovadia ruled that it was permitted to perform Shiluach HaKein on Shabbos, as long as you don’t trap the mother bird in the process. See also Avnei Derech (8:273).
The Nishmas Shabbos (Shabbos, 3:190) is also lenient in a case where the mother bird is sitting on eggs that were hatched before Shabbos.
IV. Final Questions
The Shalei’ach T’shalach notes a few final points on the topic. The Gemara (Kiddushin 34a) understands that Shiluach HaKein is a positive mitzvah that is not dependent on time, and thus women are obligated to perform Shiluach HaKein like men. However, if Shiluach HaKein cannot be performed on Shabbos, perhaps it is time-dependent?
The Shalei’ach T’shalach cites many Acharonim who answer that Shiluach HaKein is not time-dependent, as it may be done at any time according to the rules of the mitzvah. It is not done on Shabbos for reasons that are related to separate isurim, such as law of acquisition, muktzah, or trapping on Shabbos.
The Shalei’ach T’shalach also asked Rav Cham Kanievsky whether a person could send the mother bird away on Shabbos without touching it or the eggs but only acquire the eggs on Motza’ei Shabbos? This would alleviate all the above problems connected to performing Shiluach HaKein on Shabbos. Rav Chaim responded that presumably one may not do this on Shabbos, but he concludes “tzarich iyun.” However, Rav Chaim permitted “looking” at the nest on Shabbos to think how the mitzvah will be done on Motza’ei Shabbos.
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..
