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Weekly Halacha

Parshas Korach

The Mitzvah of Shiluach ha-Kein

The mitzvah of shiluach ha-kein is quite difficult to understand: If one happens upon a nest where a mother bird is roosting on her young birds or eggs, he should not take the eggs or young birds while the mother is roosting on them. Instead, he should send the mother away and then take the young birds or eggs for himself. While the Torah says that fulfillment of this mitzvah is “good for you and will prolong your days,” the Torah does not explain the rationale behind it, and indeed, Chazal 1 tell us that it is a gezeiras ha-kasuv, a Torah decree that we do not understand.

The Rishonim, however, offer a number of possible explanations as to why the Torah would command us to perform shiluach ha-kein. Among them:

    • Rambam2 explains that shiluach ha-kein shows God’s mercy on His creations, similar to the prohibition against slaughtering a mother animal and her offspring on the same day — as animals instinctively love their young and suffer when they see them slaughtered or taken away.

    • Ramban, 3 who rejects Rambam’s explanation, writes that the concern is not for the animal’s feelings, but rather to inculcate compassion in people; to accustom people to act mercifully to each other.

    • Rabbeinu Bechayei4 writes that this mitzvah symbolizes the concept that people should avoid doing anything that will destroy a species, for to slaughter mother and children on the same day is akin to mass extermination.

    • The Zohar5 explains that this mitzvah is meant to awaken and intensify Hashem’s mercy on His creations. The pain which the mother bird suffers when she is sent away and forced to abandon her young “awakens the forces of mercy in the world” and releases an outpouring of mercy from the heavens above which alleviates all kinds of human suffering.

While the explanations cited above give us some insight into the rationale for shiluach ha-kein, we are still left with many unanswered questions: If someone happens upon a nest but has no interest in the young birds or eggs, should he still send away the mother and take the eggs? Should one search for such a nest so that he may fulfill this mitzvah? What if the nest is in a tree in one’s back yard? These and other issues will be discussed below.

Question: How does one fulfill the mitzvah of shiluach ha-kein — sending the mother bird away from her nest — correctly?

Discussion: When one observes a mother bird roosting on one or more eggs (or young birds), one fulfills the mitzvah by performing the following two actions:

    1. Sending away the mother bird. The Rishonim debate whether or not the mother bird must be lifted by its wings and then cast away, an act which is extremely difficult to perform, or if it is sufficient to scare her away by banging on the nesting area with a stick, throwing a stone in her direction or raising one’s voice, etc. The basic halachah6 and the prevalent custom7 follow the lenient view that it is sufficient to drive off the mother bird by scaring her away. 8

    2. Taking the eggs or the young birds. While some poskim hold that taking the eggs or baby birds is not mandatory, 9 other poskim rule that one does not fulfill the mitzvah if the eggs or baby birds were not taken, 10 and the prevalent custom follows their view. After taking the eggs or baby birds and establishing halachic ownership of them, one is not required to keep them; they may be returned to the nest or discarded. 11

Question: Is the mitzvah of shiluach ha-kein obligatory or optional? In other words, if one observes a mother bird roosting on a nest but has no need for the eggs (or the young birds), is he still obligated to cast away the mother bird and take the eggs in order to fulfill the mitzvah?

Discussion: A minority view holds that even one who has no need for the eggs (or young birds) is obligated to send the mother bird away and establish [at least temporary] halachic ownership of them. 12 According to this view, the mitzvah of shiluach ha-kein is an obligation similar to the mitzvah of hashavas aveidah, returning a lost item to its owner. 13 But most poskim reject this approach and rule that one is obligated to send away the mother only if he wishes to keep the eggs or baby birds. 14

Still, while we rule that one is not obligated to send the mother bird away if he has no interest in the eggs or young birds, many poskim recommend that one do so nevertheless. 15 In addition to fulfilling a mitzvah for which the Torah promises the reward of longevity, there are many other additional benefits and rewards that Chazal associate with the proper fulfillment of the mitzvah. Being blessed with children, 16 finding the proper shidduch17, being blessed with the means to buy or build a new house, 18 and hastening the arrival of Mashiach 19 are among some of the rewards that are promised to those who fulfill this mitzvah properly.

Question: Does one recite a blessing when performing the mitzvah of shiluach ha-kein? Does one recite the blessing of shehecheyanu?

Discussion: Although there are several opinions on this issue, 20 the majority view21 and the prevalent custom22 is not to recite any blessings when performing this mitzvah. One who wishes to do so may recite a berachah without invoking Hashem’s name23 using the following text: Baruch Atah Melech ha-olam, asher kideshanu bemitzvosav le-shaleiach ha-kein. 24

Question: Does the mitzvah of shiluach ha-kein apply to all roosting mother birds?

Discussion: No. A number of conditions must be met before this mitzvah can be fulfilled:

    • The mother bird must be of a kosher species, e.g., a sparrow, a dove, or a pigeon. 25

    • The mitzvah applies only at the time that the mother bird is actually roosting on the eggs or the young birds. The mitzvah does not apply to a mother bird who is hovering over or feeding the young birds, but is not roosting on them. 26

    • While the father of the eggs or young birds also roosts on the nest, usually during daytime hours only, the mitzvah of shiluach ha-kein applies to a mother bird exclusively.

    • One does not fulfill the mitzvah if the eggs broke before the mother bird was cast away. 27 If the eggs broke during the performance of the mitzvah, it is questionable whether one fulfilled the mitzvah. 28

    • On Shabbos (and Yom Tov), shiluach ha-kein is not performed. 29

Question: Does the mitzvah of shiluach ha-kein apply to birds that one owns?

Discussion: No, it does not. Birds that are raised domestically, such as chicken or turkey, are exempt from shiluach ha-kein, as the mitzvah applies only to birds that do not have an owner who cares about them. 30

Contemporary poskim debate whether or not one fulfills the mitzvah with a nest which is found on one’s private property. Some poskim rule that the mitzvah cannot be performed, since one’s private property “acquires” (kinyan chatzer) the nest on his behalf and it is no longer ownerless. 31 Others, however, hold that since the owner has no interest in owning the nest or eggs, his private property does not automatically “acquire” the nest on his behalf and the mitzvah can still be fulfilled. 32

Question: Based on the above information, how is the mitzvah of shiluach ha-kein actually performed?

Discussion: As soon as eggs or young birds are observed in a nest, one should prepare himself to perform the mitzvah. The mitzvah can be performed anytime there are eggs or young birds in the nest as long as the mother is still roosting over them. If the mother is no longer roosting over the young birds but is merely feeding them, usually five to nine days after they are hatched, then the mitzvah can no longer be performed. 33

In order to be sure that the mother is the one roosting over the nest and not the father, shiluach ha-kein should take place between sunset and sunrise, since it is the mother who roosts on the nest in the evening and night hours. 34

After ascertaining that the mother bird is of a kosher species and that the nest does not belong to anyone else, one should quietly35 approach the nesting area36 and gently37 chase the mother bird away from the nest by using one of the methods described earlier (15 Elul). If the mother bird comes back repeatedly before the eggs are taken, she must be shooed away repeatedly.

Once the mother is gone, a wooden spoon should be used to carefully lift the eggs out of the nest, making sure not to break them. One should then lift up the spoon approximately ten to twelve inches, in order to halachically “acquire” the eggs. [If the nest contains young birds, one should use his hands to gently lift them out. 38 He may then return the eggs to the nest. The mitzvah has been completed.


Sources:


1. Berachos 33b.
2. Moreh Nevuchim 3:48.
3. See also Rashbam, Ibn Ezra and Chezkuni for a similar approach.
4. A similar explanation is offered by Sefer ha-Chinuch (545) and Ralbag.
5. Quoted by Rabbeinu Bechayei and by Chavos Yair 67. See explanation in Beiur ha-Gra to Mishlei 30:17 and in Imrei Noam, Berachos 33b.
6. Chazon Ish, Y.D. 175:2.
7. Many contemporary poskim, among them the Satmar Rav, Harav Y.Y. Kanievsky, Harav Y.Y. Weiss, Harav S.Z. Auerbach, Harav E.M. Shach and Harav S. Wosner were all seen performing shiluach ha-kein by banging on the nest with a stick until the mother bird flew away. See also Teshuvos v’Hanhagos 1:329.
8. If, however, no action was taken to cast the mother away but she flew off on her own, the mitzvah is not fulfilled.
9. Chacham Tzvi 83. See also Aruch ha-Shulchan Y.D. 292:3-4. Harav Y.Y. Fisher rules in accordance with this view (Even Yisrael on Rambam Hilchos Shechitah 13).
10. Beis Lechem Yehudah, Y.D. 292; Chasam Sofer, O.C. 100; Chazon Ish, Y.D. 175:2; Harav C. Kanievsky (Shaleiach Teshalach, 3rd edition, pg. 50).
11. Harav Y.S. Elyashiv and Harav C. Kanievsky, quoted in Shaleiach Teshalach, pg. 54.
12. Chavos Yair 67 and Mishnas Chachamim, quoted by Pischei Teshuvah, Y.D. 292:1; Birkei Yosef, Y.D. 292:8; Aruch ha-Shulchan, Y.D. 292:1-2.
13. In other words, just as one may not ignore a lost object that he happens to see but rather is obligated to return it to its owner, so, too, one who happens to see a mother bird roosting on her eggs or young birds is obligated to send it away and take ownership of her offspring.
14. Chasam Sofer, O.C. 100; Avnei Nezer, O.C. 481; Chafetz Chayim (Sefer ha-Mitzvos 74); Meromei Sadeh, Chullin 139b; Chazon Ish, Y.D. 175:2; Chazon Yechezkel, Tosefta Chullin, pg. 39.
15. See Birkei Yosef, Y.D. 292:6 and Aruch ha-Shulchan 1.
16. Midrash Rabbah and Tanchuma, Ki Seitzei 6:6.
17. Yalkut Shimoni, Devarim 925.
18. Midrash Rabbah and Tanchuma, Ki Seitzei 6:6. See Keli Yakar, ibid.
19. Yalkut Shimoni, Devarim 930.
20. See Pe’as ha-Shulchan (Eretz Yisrael 3-20) and Aruch ha-Shulchan, Y.D. 292:10, who rule that a berachah is recited. See also Pischei Teshuvah, Y.D. 292:2 who mentions that some recite shehecheyanu as well.
21. See Pischei Teshuvah, Y.D. 292:2 and Binyan Tziyon 14.
22. As recorded by all of the contemporary poskim mentioned in note 59.
23. Beis Lechem Yehudah, Y.D. 292 and Maharam Shick 289-291.
24. Harav C. Kanievsky, quoted in Shaleiach Teshalach, pgs. 40-41. Aruch ha-Shulchan, however, quotes the text of the berachah as al shiluach ha-kein, while Maharam Shick writes al mitzvas shiluach ha-kein.
25. Y.D. 292:1.
26. Y.D. 292:11.
27. Rabbeinu Bechayei, Ki Seitzei 22:7.
28. See Shaleiach Teshalach, pg. 60, for the various views on this subject.
29. Chasam Sofer, O.C. 100.
30. Y.D. 292:2.
31. Harav S.Z. Auerbach (Minchas Shelomo 2:97-26); Harav Y.S. Elyashiv, quoted in Shaleiach Teshalach, pg. 68; Harav S. Wosner (Mi-Beis Levi, Nissan, pg. 90). [In the atypical case where the mother bird did not leave the nest for even one moment from the time she laid the eggs, then all views agree that shiluach ha-kein could be performed with a nest which is found on one’s private property; Y.D. 292:2.]
32. Igros Moshe, Y.D. 4:45; Harav C.P. Scheinberg, Harav N. Karelitz and Harav C. Kanievsky, quoted in Shaleiach Teshalach, pg. 67-68.
33. Chazon Yechezkel, Tosefta Chullin, pg. 38; Harav Y.S. Elyashiv and Harav C. Kanievsky, quoted in Shaleiach Teshalach, pgs. 62-63.
34. According to experts, this is true of most kosher birds, with the notable exception of the American Robin, where the male does not have an incubation patch and the female is the sole incubator of the nest.
35. So that the mother bird does not fly off before you have a chance to send her away.
36. Some recite a special l’sheim yichud before performing the mitzvah; see text in Kan Tzippor, pg. 138.
37. Otherwise the mother bird may panic and break the eggs or take them away with her.
38. If the young birds fit snuggly into one’s hands, there is no need to lift them up ten to twelve inches, since, halachically speaking, one’s “hand” acquires the young birds for him; Beiur Halachah 366:9, s.v. tzarich.


Weekly-Halacha, Text Copyright © 2013 by Rabbi Neustadt, Dr. Jeffrey Gross and Torah.org.

Rabbi Neustadt is the Yoshev Rosh of the Vaad Harabbonim of Detroit and the Av Beis Din of the Beis Din Tzedek of Detroit. He could be reached at dneustadt@cordetroit.com


 






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