Is there any reason to fulfill the mitzva of Shiluach Haken if we don’t need the eggs or fledglings? After performing the mitzva once, should one look to do it again? How much effort needs to be invested in the mitzva? 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 mitzva of Shiluach Haken? When is fulfilling this mitzva unnecessary? Can the mitzva be performed on Shabbos and Yom Tov?
Sources
In this week’s parasha we read:
“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” (Devarim 22:6-7). This mitzva consists of two parts – a positive part: sending off the mother and taking the eggs or fledglings; and a negative prohibition – not taking the mother along with her eggs or fledglings. This is one of the two positive mitzvos for which the Torah promises reward — longevity. The only other mitzva that carries the same promise is the mitzva of honoring one’s parents.
Nowadays, whereas most of our readers presumably purchase their chicken eggs in the supermarket, we have no need for wild eggs or fledglings. Is this mitzva still relevant? Is performing it necessary, or is doing so simply inflicting unnecessary pain on animals?
Obligation to Perform Positive Mitzvos
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 mitzva to run after animals to investigate their kashrus status, slaughter them and cover their blood, and then discard the meat.
On the other hand, there are positive mitzvos which people must perform whether or not the results are desirable: eating matza 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 mitzva 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 Hakein fit in? Which category does it belong to?
Mitzva Category
The Chavos Yair (Chapter 67) discusses this question and rules that it obligates only one who happens to find a bird nest. He cites numerous proof for his postulation. One of them is the following:
The Gemara (Chulin 139b) asks if one is obligated to search in the mountains for a bird’s nest to fulfill the mitzva. It answers with the pasuk: “If a bird’s nest chances before you” — this mitzva obligates only one who chanced upon a bird nest. One is not obligated to search for a nest to fulfill the mitzva. The Chavos Yair 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 mitzva 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 mitzva to perform Shiluach Hakein if one chances upon a bird nest, even if the eggs or fledglings are not wanted.
The Meiri (Chulin 139b) writes that this is not a mitzva 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 Yair by nearly 400 years, the Meiri’s writings had not yet been printed during the Chavos Yair’s lifetime).
We see here there are two ways in understanding the Gemara – either the pasuk reveals that the mitzva is only relevant to one who wants to take the eggs or fledglings; or – one should perform the mitzva, 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 YD 291:8); Rabbi Akiva Eiger (glosses on the Shulchan Aruch YD 291:1) and Aruch Hashulchan (YD 291:4) follow the Chavos Yair. However, there are other Achronim who disagree (these opinions will appear later).
Seeking the Mitzva
The Chazon Ish (YD 185:2) 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 mitzva. The only question that remains is to what extent. Would one have to spend his entire lifetime looking for 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 Kaniyevsky writes (Orchos Yosher – Simcha Shel Mitzva) that while it is certainly important to perform every mitzva at least once in our lifetimes, this mitzva is not included, and there is no point in fulfilling it even once. This concept will be explained below.
Investing in a Mitzva
As mentioned above, the Chavos Yair (and other Achronim as will be detail 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 Midrash tells a story to illustrate the effort people invested in this mitzva (Tanchuma, Ki Tetze 2): “There was once one who went up to the treetop to fulfill the mitzva of Shiluach Hakein 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 Midrash 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 mitzva of Shiluach Haken. While fulfilling the mitzva 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 mitzva will not earn the performer the Torah’s promise of longevity.
Taking the Eggs
The Chacham Tzvi (chapter 83) noted that the Elders of Lublin were disputed if taking the offspring is part of the mitzva or not. Can the mitzva be fulfilled by leaving them in the nest?
The Chacham Tzvi proves from various sources that taking the eggs or offspring is not necessary, only sending away the mother bird. Even if one sets the offspring free, the mother bird still must be sent away. As for the pasuk “And [then] you may take the young for yourself” is not part of the mitzva, 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 mitzva is only to refrain from work on Shabbos.
To summarize this podsition: One who meets up with a bird nest is obligated to fulfill this mitzva and send the mother bird away, even if he has no need for the fledglings.
The Chida (Birkei Yosef YD 291:6); Rabbi Akiva Eiger (glosses on Shulchan Aruch YD 291:1); and Aruch Hashulchan (YD 291:4) all follow the Chacham Tzvi. However the Chida quotes the Beis Lechem Yehuda who quotes the Zohar who requires that the eggs or offspring to actually be taken in order to fulfill the mitzva properly. The Aruch Hashulchan writes that one should preferably do so since it is required by the Zohar.
Kabbalistic Sources
The Chavos Yair adds that the reason behind this mitzva is mentioned in the Zohar (Tikunei Zohar 23a): once the mother bird reappears and notices her offspring gone, she will, in distress, go searching for them. This, in turn, will arouse G-d’s mercy for His exiled children. Therefore, taking the eggs is a necessary component, as well as preforming the mitzva on every bird’s nest one finds.
The Chasam Sofer (OC chapter 100) writes that according to this explanation, it would seem that preforming this mitzva is only vital while we are in exile, but when the Mikdash 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 Mikdash 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 Talmud disagrees with the Zohar (because there is no difference if the Mikdash is standing or not regarding this mitzva) where the two do not coincide, we follow the revealed Torah and not the hidden one.
Fulfilling all 613 Mitzvos
The Chida (Birkey Yosef 292:8) notes that according to the Ari Hakadosh, every time this mitzva presents itself it should be fulfilled. The Chida doesn’t explain the meaning of this passage, but it appears to refer to the concept (Sha’ar Hamitzvos) that one must fulfill all 613 mitzvos at least once in his lifetime. Each mitzva 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 mitzvahs in order to enjoy full connection with G‑d through all the channels he was created to attain. One who fails to fulfill a mitzva will be lacking in that spiritual aspect in his spiritual body. The Chaffetz Chaim warns to be very scrupulous in this (Torah Or, chapter 4).
The Vilna Gaon was known to make sure to fulfill every mitzva at least once in his lifetime (Ma’ase Rav, chapter 94-95).
Rabbi Chaim Kaniyevsky (Orchos Yoser, Simcha Shel Mitzva) writes that one should make sure to fulfill every mitzva 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 mitzvas of the land. For mitzvos he cannot fulfill such as the priestly mitzvos, he instructs to learn the mitzva’s laws so the learning should take the place of actually doing them. However, Rabbi Chaim Kaniyevsky understands that the Chazon Ish indicates that this mitzva of Shiluach Hakein is different – since there is an explicit pasuk teaching that there is no need to actually fulfill the mitzva, and as long as one didn’t see a bird nest and pass it by, one’s spiritual body will remain intact. The Chida, though, seems to indicate that fulfilling this mitzva, at least once in a lifetime, is very important.
The Zohar tells us (Vayakhel 198a) that every mitzva that presents itself is a gift from Heaven, and when one shows his gladness in the mitzva he illustrates how beloved G-d’s gift is to him. Therefore, one who walks away from it expresses his disregard of the gift G-d sent him, which is the ultimate lack of gratitude.
Rishonim
The Chavos Yair (chapter 67) writes that Tosefos (Chulin 140b) seems to indicate that fulfilling the mitzva is required even if one has no need for the eggs or fledglings. However, the Rashba (Chulin 140b) does not obligate it. Other Rishonim (including the above mentioned Meiri); Rabbenu Yona (Ki Tetze); Ran (Chulin 139a); Rokeach (Al HaTorah 22:6-7); Rabbenu Bachye (22:6-7) also follow this understanding.
The Birkei Yosef (YD 292:6) understands from the Ramban, Rashba, and Ritva (Chulin 140b) that there is, indeed, importance in fulfilling this mitzva despite not wanting the offspring. This is also the Or Somaich’s understanding of the Ramban (Kiddushin 34a).
Inappropriate Times
Mekubalim write that during the Sefira or the Shmitta year fulfilling this mitzva is inappropriate. The Chavos Yair indicates that the main reason for fulfilling this mitzva is the one mentioned in the Zohar, therefore, when kabalistically inappropriate and not done for the eggs or fledglings, there is no point in fulfilling the mitzva. I heard this opinion from Rabbi Meir Sirota shlita. For one who wishes to take the eggs, he must certainly fulfill the mitzva as the Torah mandates.
The Chasam Sofer writes that this mitzva 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 mitzva is to arouse the Divine mercy for G-d’s exiled children, it should not be performed on Shabbos. Therefore, even according to the opinions that require one to fulfill this mitzva every time the opportunity presents itself, and it should have taken precedence to the prohibition of muktza (but not caging the mother bird to send her off), since these opinions see the main reason for fulfilling it as the one mentioned in the Zohar, this mitzva should not be performed on Shabbos and Yom Tov.
Summary
Shiluach Haken pertains only to kosher birds.
It is particularly important to perform this mitzva at least once in a lifetime, even if it takes some effort, provided one doesn’t place his life in danger.
In order to fulfill the Zohar’s requirement of taking the offspring, it is accepted to lift the eggs or fledglings three tefachim in order to have halachically “acquired” them. Then, they may be returned to the nest.
