See Makos 15b and Rashi there, DH Ha Amar. It is a Machlokes between Rebbi Yochanan and Reish Lakish. According to Rebbi Yochanan, if one can fulfill the Aseh before transgressing the Lav, then it is not a Lav ha'Nitak l'Aseh.

D. Zupnik

It is not clear to me the meaning of the expression that X "is one of the commonly misunderstood concepts by general Jewish religious public." The manner in which scholarly inquiry is pursued in Torah is such that when the majority honestly understands it as Y, and I disagree, I make sure to do a lot of serious research, and if I still want to make the statement that Y is wrong, then I question myself seriously, and if I still want to make the statement, I exercise restraint and submission to the majority.

Below is a brief background of the Mitzvah of Shilu'ach ha'Ken and its relationship to the Mitzvas Aseh, written by one of my colleagues. It is a good start and should clarify some issues.

Let me just add that the Sugya d'Alma (the accepted Psak Halachah) is that one fulfills the Mitzvah of Shilu'ach ha'Ken even before one transgresses the Lav, although the generally accepted view is that it is not a *Chiyuv*, obligatory, unless you actually want the young. There are many approaches with regard to how to understand the Sugya here, some of which are mentioned in the attached Insights. However, the words of the Midrash on the reward of Shilu'ach ha'Ken is strong evidence to the fact tha there is some way to perform the Mitzvah without trangressing the Lav, and it is one of the numerous sources that must be reckoned with when challenging the concepts accepted by the Jewish people.

D. Zupnik

From Insights to Chulin 141a:

2) THE NATURE OF THE "MITZVAS ASEH" OF "SHALE'ACH TESHALACH"

QUESTION: In the Mishnah, Rebbi Yehudah and the Chachamim argue about a case

in which a person takes a mother bird from upon its young, thereby

transgressing the Lo Sa'aseh of "Lo Sikach ha'Em Al ha'Banim" (Devarim

22:6). Rebbi Yehudah maintains that he is punished with Malkus, and he no

longer can rectify his transgression by sending away the mother bird. The

Chachamim maintain that he may rectify his misdeed by sending away the

mother bird and avoid getting Malkus.

The reasoning of the Chachamim is clear. They maintain that the prohibition

of taking the mother bird from upon its young is a "Lav ha'Nitak l'Aseh," a

Lav that requires a Mitzvas Aseh to be performed. One does not receive a

punishment of Malkus for transgressing such a Lav, because the person can

fulfill the Mitzvas Aseh and rectify the Lav, negating the necessity for

Malkus.

What, though, is the reasoning of Rebbi Yehudah? The Gemara (141b) concludes

that he agrees with the principle that one does not receive Malkus for a

"Lav ha'Nitak l'Aseh." The reason why he says that one receives Malkus for

taking the mother bird is because he holds that the Aseh of "Shale'ach

Teshalach" precedes the Lav. That is, the Torah commands one to send away

the mother bird only when one finds a mother bird sitting on its nest. When

one has already transgressed the Aseh and the Lo Sa'aseh by taking the

mother bird, the Aseh no longer applies.

What, though, compels Rebbi Yehudah to learn that this is the nature of the

Aseh, and that it does not apply after the Lo Sa'aseh was transgressed?

ANSWER: The CHASAM SOFER suggests that the underlying point of the argument

between Rebbi Yehudah and the Chachamim is whether the Aseh of "Shale'ach

Teshalach" is an entirely independent Mitzvah in itself, or whether it is

primarily a way to rectify the Lav once one has taken the mother bird.

According to the Chachamim, the Aseh is primarily a way of rectifying the

Lav. Consequently, there is no Mitzvah to purposely approach a nest and send

away the mother bird when one has no need or intention to take the eggs.

Rather, once one wants to take the eggs and he grasps the mother bird to

move her, he must send her away in order to avoid transgressing the Lav.

This also seems to be the understanding of the RAMBAM, who does not mention

the Aseh of "Shale'ach Teshalach" in the laws of Shilu'ach ha'Ken (Hilchos

Shechitah 13). He discusses only the Lav, and the act of rectifying it with

the Aseh.

Similarly, the RASHBA (Teshuvos 1:18) quotes RABEINU YOSEF BEN PELET who

says that no blessing is recited for Shilu'ach ha'Ken, because one does not

recite a blessing for a Mitzvah that one does as a result of an Aveirah.

Just as the Torah does not command a person to steal in order to fulfill the

Mitzvah of returning the stolen object, the Torah does not command a person

to take the mother bird in order to fulfill the Mitzvah of sending it away.

(The RA'AVAD, quoted by the AVUDRAHAM (p. 18), questions the Rashba's logic.

When one takes the mother bird with specific intent to send her away, there

is no Aveirah being committed, and thus why should one not recite a

blessing? The Rashba seems to maintain that there is no independent Aseh

whatsoever; the requirement to send away the mother bird is solely a way to

avoid transgressing the Lav.)

However, there are other sources that indicate that there is an independent

Mitzvas Aseh to send away the mother bird, and the Aseh is not related to

the Lav at all. One proof for this is the fact that the Torah promises

reward for one who sends away the mother bird (Devarim 22:7), and the Gemara

calls this a "*Mitzvas Aseh* she'Matan Secharah b'Tzidah." The reward is for

doing a Mitzvah and not for merely refraining from an Aveirah. Similarly,

the Gemara in Kidushin (34a) calls Shilu'ach ha'Ken a "*Mitzvas Aseh*

she'Ein ha'Zeman Gerama."

If "Shale'ach Teshalach" is an independent Mitzvas Aseh, then, in practice,

why does the Chasam Sofer argue with the ruling of the Chavos Ya'ir (see

Insights to Chulin 139:3) and say that there is no Mitzvah to approach a

nest and send away the mother bird when one has no need for the eggs?

Second, why does the Rambam make no mention of such a Mitzvas Aseh? Third,

why does the Rashba say that no blessing is recited for performing the

Mitzvah?

It seems that the answer is as follows. The Gemara in Kidushin (34a) says

that women are obligated to fulfill the Mitzvah of Shilu'ach ha'Ken because

it is a "Mitzvas Aseh she'Ein ha'Zeman Gerama," it is not dependent on a

specific time. The Rishonim there ask why we need this reason to obligate

women in the Mitzvah? Women should be obligated because there is a Lav that

prohibits taking the mother bird from upon its eggs, and all Lavim apply to

women!

The RITVA quotes the RAMBAN who answers that since the primary obligation is

the Mitzvas Aseh and the Lav is given only in order to strengthen the Aseh,

if women would be exempt from the Aseh, then they would also be exempt from

the Lav. Therefore, we need the reason of "Mitzvas Aseh she'Ein ha'Zeman

Gerama."

The RAN, however, argues. He asks that since there is a Lav, women would be

obligated in the Aseh even if it would be a "Mitzvas Aseh sheha'Zeman

Gerama." The Ran understands that the Lav is the primary obligation, and the

Aseh is given only in order to strengthen the Lav.

While the Ramban and Ran argue whether the Aseh is the primary obligation or

whether the Lav is the primary obligation, we see that both views maintain

that there are two separate commands, a Lav and an independent Aseh.

Accordingly, we can understand why there is no Mitzvah to send away a mother

bird when one has no need for the eggs, why the Rambam omits mention of the

independent Mitzvas Aseh, and why no blessing is recited for performing the

Aseh. Even though the Aseh is an independent Mitzvah, there is no obligation

to approach a nest and send away the mother bird, since the Aseh is only a

form of strengthening the Lav, according to the Ran. The Aseh applies only

where the Lav may be transgressed, which is only when one takes the mother

bird into his hands, and not when one merely passes by and sees a nest.

Similarly, the Rambam does not mention the Mitzvas Aseh, because it is not

the primary obligation; it is given only in order to strengthen the Lav, as

the Ran says. Likewise, the Rashba says that no blessing is made when

performing the Mitzvah, because the primary obligation of the Torah is the

Lav, and not the Aseh. We do not make a blessing on a Lav (as the Rashba

writes in Teshuvos 3:283). (See EVEN HA'SAPIR.) (Mordechai Zvi Dicker)

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