More Discussions for this daf
1. The Mitzvah and Segulah of Shilu'ach ha'Ken 2. Source of Vilna Gaon 3. Shiluach Hacken
4. Shilu'ach ha'Ken - recommended or required?
DAF DISCUSSIONS - CHULIN 138

H. David Levine asks:

I had this question about kan tzipor, whether it is commanded that one perform shiluach ha-kan, or whether it depends on one's wish to take the ephrochim, or bayot. If one wanted nothing of the ken, in other words, isn't it also l'chatchila to leave it be?

Best wishes to the kollel, always.

H. David Levine, Roanoke, VA

The Kollel replies:

We discussed your question at length in our Insights to Chulin 139, section 3. For your benefit, we are copying the relevant section below.

Best regards,

Kollel Iyun Hadaf

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From Insights to the Daf to Chulin 139:3

3) HALACHAH: ONE WHO CHANCES UPON A BIRD'S NEST BUT DOES NOT NEED THE EGGS

OPINIONS: The Gemara derives from the words, "Ki Yikarei" -- "if a bird's nest chances to be before you" (Devarim 22:6), that one is not obligated to go searching in the mountains and valleys in order to find a bird's nest to fulfill the Mitzvah.

What is the Halachah when one happens to find a bird's nest, and he does not need the eggs or chicks? Is he obligated to go over to the nest and send away the mother bird in order to perform the Mitzvah of Shilu'ach ha'Ken, or does the Mitzvah to send away the mother bird apply only when one wants to use the eggs for himself? (The following discussion is based on the research of Rabbi Naftali Weinberger in SEFER SHALE'ACH TESHALACH, a comprehensive treatise covering the laws and meanings of the Mitzvah of Shilu'ach ha'Ken.)

(a) The PISCHEI TESHUVAH (YD 292:1) cites the CHAVOS YA'IR (#67) who concludes that one is obligated to send away the mother bird whenever possible. He proves this from the Gemara here, which, according to his understanding, teaches that one is not obligated to go searching for a bird's nest in order to fulfill the Mitzvah, but one *is* obligated to perform the Mitzvah when he chances upon a bird's nest, even if he does not need the eggs. (The Chavos Ya'ir cites proof for this ruling from the words of the Zohar; see Insights to Chulin 138:5.)

This is also the view of the MAHARAL (Tiferes Yisrael, end of chapter 61), MAHARSHAM (1:209), BIRKEI YOSEF (YD 292:8), and ARUCH HA'SHULCHAN (YD 292:1-2).

This obligation applies even to a person who has absolutely no interest in owning the contents of the nest, and even if stopping to fulfill the Mitzvah will cause him to suffer a monetary loss, as the CHASAM SOFER (OC #100) and NETZIV (in Meromei Sadeh here) explain this view. The reason for this is that since the performance of this Mitzvah hastens the Ge'ulah (as described in Insights to Chulin 138:4-5), one is not allowed to squander such an opportunity, and thus one is required to fulfill the Mitzvah.

It is interesting to note that the ARIZAL (quoted by RAV CHAIM VITAL in his introduction to Sha'ar ha'Mitzvos; Birkei Yosef, Gilyon Shulchan Aruch YD 292:6, and Aruch ha'Shulchan YD 292:1) writes that according to Kabalah, one must make every effort to perform Shilu'ach ha'Ken. He adds that one who does not perform the Mitzvah of Shilu'ach ha'Ken will return to this world as a Gilgul.)

(b) However, the CHACHAM TZVI (#83) and CHASAM SOFER (OC #100) rule that when one has no need for the offspring, he is not obligated to send away the mother bird. The Chasam Sofer adds that if the purpose of the Mitzvah is to inculcate in the person the trait of compassion (see Insights to Chulin 138:4), then it is clear that one is not obligated to send away the mother bird when he has no need for the offspring, because doing so causes distress to the bird for no reason.

This is also the opinion of many Rishonim, including TOSFOS (140b, DH Shnei), the RAMBAM (Hilchos Shechitah 13:5), RAN, ME'IRI (139b), and RABEINU BACHYE (end of Devarim 22:7).

Some agree that it is meritorious to pursue and perform the Mitzvah, but it is not mandatory to do so and one is not punished for not doing so. Others, such as the Me'iri, maintain that one should *not* send away the mother bird when he has no need for the eggs. Indeed, the Chasam Sofer writes that according to the Ramban's reason for the Mitzvah (see Insights to Chulin 138:4), one should not send away a mother bird when he has no need for the eggs, because doing so would constitute an act of cruelty. (See also Insights to Chulin 141a.)

HALACHAH: Most Acharonim rule that there is no obligation to send away the mother bird when one chances upon a nest and has no need for the eggs. This is the ruling of the Chasam Sofer (loc. cit), AVNEI NEZER (OC #481), CHAZON ISH (YD 175:2), CHAZON YECHEZKEL, MINCHAS CHINUCH (#544), and the CHAFETZ CHAIM (in SEFER MITZVOS HA'KATZAR, Mitzvos Aseh #74).

Most contemporary Poskim also rule this way, including RAV SHLOMO ZALMAN AUERBACH zt'l (in MINCHAS SHLOMO 2:5:4), and RAV YOSEF SHALOM ELYASHIV shlit'a and RAV CHAIM KANIEVSKY shlit'a (in personal conversations with Rabbi Naftali Weinberger). This is the common practice today. (Rabbi Weinberger quotes RAV YAKOV YISRAEL FISHER zt'l, however, who was of the opinion that one is obligated to send away the mother bird when he chances upon a nest, even though he does not need the eggs).