פירוש על חולין 12:7

שלוח הקן. אבל לא במקודשין –consecrated [birds] are found, for if they were non-holy, they would be liable for letting [the dam] go forth from the nest, such as the example where he had a bird and he consecrated it while it was in his domain for keeping the Temple in repair, but it escaped and he found it afterwards lying on the nest and he recognized it. Alternatively, such as the example when he consecrated pigeons of [his dove-cote] to the Altar for a free-will burnt offering, and afterwards when these pigeons grew up, they escaped and built a nest in another place, for at the outset, when he sanctified them, they were his, and sacred Temple property takes effect upon them, and now that he found them, they are not designated–at his disposal–captive but if they were profane, they would be נו

Introduction Deuteronomy 22:6-7 states: “If, along the road, you chance upon a bird’s nest, in any tree or on the ground, with fledglings or eggs and the mother sitting over the fledglings or on the eggs, do not take the mother together with her young. Let the mother go, and take only the young, in order that you may fare well and have a long life.” Our chapter, the final chapter in Hullin, deals with this mitzvah, called “letting the mother bird go from the nest (shiluah haken).”

ואינו נוהג אלא בשאינו מזומן – as it is written (Deuteronomy 22:5): “[If, along the road,] you chance upon [a bird’s nest], excluding one that is at your disposal [in your courtyard](see Sifre Deuteronomy 227).

The law of letting [the mother bird] go from the nest is in force both within the holy land and outside it, both during the existence of the Temple and after it, in respect of unconsecrated birds but not consecrated birds. The law of letting the mother bird go from the nest is applicable in all times and all places. However, it only applies to unconsecrated birds and not to consecrated ones.

שקננו בפרדס – that they rebelled and went out from the house, and they don’t return to the house and they become belonging to the desert. And an orchard is not designated because they can flee–escape.

The law of covering up the blood is of broader application than the law of letting [the mother bird] go; for the law of covering up the blood applies to wild animals as well as to birds, whether they are at one's disposal or not, whereas the law of letting [the mother bird] go from the nest applies only to birds and only to those which are not at one's disposal. The mishnah compares the law of covering up the blood (see chapter six) with the law of letting the mother bird go because both are practiced with wild animals and not domesticated ones. However, covering up the blood is of broader application because it applies to animals and birds, whereas sending the mother bird away obviously applies only to birds. Furthermore, sending the mother bird applies only to birds that are not at one’s disposal, meaning they are not “house” birds. In contrast, the covering of the blood applies to all birds and wild animals.

הרדסיות – for it is their manner to be raised with people and in the name of King Herod who was engaged in raising them, they are called, Herodian doves, by his name.

Which are they that are not at one's disposal? Such as geese and fowls that made their nests in the open field. But if they made their nests within a house or in the case of Herodian doves, one is not bound to let [the mother bird] go. If a bird makes its nest in the open field, then it is considered to not be at one’s disposal and one needs to send it away before taking its young. If the birds nest in the house, then when one comes to take them, he need not send the mother bird away. This is probably derived from the word “along the road” in Deuteronomy 22:6. The same is true for Herodian doves, which refers to the types of doves that Herod used to raise in his palace.

עוף טמא פטור מלשלח – as it is written (Deuteronomy 22:6): “a bird’s nest.” A “bird” implies whether pure or impure, a pure bird, not an impure one.

An unclean bird one is not obligated to let it go. The obligation to let the mother bird go applies only to a clean (kosher) bird, one that can be eaten. It does not apply to birds that are not kosher.

עוף טמא רובץ על ביצי עוף טהור – even though that this species of pigeons are ones that are sent out from the nest], he is exempt, for we require, “a bird’s nest” (Deuteronomy 22:5) that the mother who makes a nest is pure.

If an unclean bird was sitting on the eggs of a clean bird, or a clean bird on the eggs of an unclean bird, one is not obligated to let it go. Furthermore, if either the eggs are from an unclean (not kosher) bird but the bird is clean, or vice versa, there is no obligation to let it go. The obligation applies only to a clean bird sitting on clean eggs.

ועוף טהור הרבץ על ביצי עוף טמא – for Scripture states (Deuteronomy 22:7): “and take only the young,” for you, but not for your dogs.

As to a male partridge: Rabbi Eliezer obligates [one to let it go]. But the sages exempt. The Torah says “mother” because most of the time the mother bird sits on the egg. However, the male partridge does sit on the eggs, and therefore the rabbis debate whether there is an obligation to let it go. Rabbi Eliezer says that there is. Evidently, Rabbi Eliezer believes that the Torah mentioned mother, because that was the normal case. But according to his opinion, the same rule would apply to the father as well. The other rabbis are more precise in their reading of the Torah (and more hesitant about extending its logic). One must let only the mother bird go the father bird may be taken even while sitting on its young. As an aside, this reminds me of the debate concerning uncle/niece marriage. The Torah forbids a nephew from marrying his aunt, but says nothing about uncle/niece. The Jews who composed the Dead Sea Scrolls forbade both cases, thereby extending the logic of the Torah, much as Rabbi Eliezer does in this case. The rabbis, on the other hand, lauded such marriages, and read the Torah in a more narrow fashion.

קורא – In Arabic, we call him “Sonar,” and in the foreign language, “Pardiz,” for it is the manner of the male [bird] to lie down on the eggs like the female [bird], therefore, Rabbi Eliezer obligates to send away the male [bird], but with other birds, Rabbi Eliezer admits that the male is exempt, for the All Merciful stated, “mother” (Deuteronomy 22:7), and not the father, but the Halakha is not according to Rabbi Eliezer.

בזמן שכנפיה נוגעות בקן חייב לשלח – as Scripture states (Deuteronomy 22:6), “sitting over [the fledglings or the eggs]” but not flying. But since it is written, “sitting over,” and it didn’t write, “sitting,” we learn from it that if its wings touch the nest, she is liable to be sent away.

If the mother was hovering [over the nest]: If her wings touch the nest, one is obligated to let her go; If her wings do not touch the nest, one is not obligated to let her go. The mother is considered to be sitting upon the nest only so long as at least her wings are touching the nest. If she is just hovering over the nest, and her wings are not touching, one is not obligated to send her away.

שנאמר שלח – and it implies, forever.

If there was but one young bird or one egg [in the nest], one is still obligated to let the mother go, for it is written: “A nest,” [implying], any nest whatsoever. Although Deuteronomy 22:6 uses the plural form of eggs and fledglings, the obligation is still in place even if there is only one egg or one fledgling. This is because the Torah also uses the word “nest” which implies any nest, so long as there is at least one egg or one fledgling.

נטל את הבנים – for since he took the fledglings, he had a designated–captive nest.

If there were there young birds able to fly or spoiled eggs, one is not obligated to let [the mother] go, for it is written, “And the mother sitting up on the young or upon the eggs:” Just as the young are living beings so the eggs must be such as [would produce] living beings; this excludes spoiled eggs. And just as the eggs need the care of the mother so the young must be such as need the care of the mother; this excludes those that are able to fly. The prohibition applies only to fledglings that cannot fly or to viable eggs. It does not apply to a case where the young birds can already fly or to a case where the eggs are spoiled. This is derived through a midrash which compares the fledglings with the eggs. Just as the fledglings have proven themselves to be viable birds, so too the eggs must show signs of being viable. Spoiled eggs are not covered by the prohibition. And just as the eggs still require the attention of their mother, so too the fledglings must require the attention of their mother. A fledgling which can feed itself and fly, is no longer covered by the prohibition.

If one let [the mother] go and she returned, even four of five times, he is still obligated [to let her go again], for it is written, “You shall surely let the mother go.” Even if the mother bird keeps returning to the nest, the person who finds her there must send her away before taking the young or the eggs. This is derived from the double appearance of the word “shalah” in the Torah, which I have translated as “surely let the mother go.” Although this is a common grammatical construct, the rabbis frequently use it as an opportunity for midrash.

If one said, “I will take the mother and let the young go,” he is still obligated [to let her go], for it is written, “You shall surely let the mother go.” One cannot fulfill the obligation by letting the young go, and taking the mother. Rather, the obligation is to send the mother away and then take the young.

If one took the young and brought them back again to the nest, and afterwards the mother returned to them, he is not obligated to let her go. If one let the mother go and took the young, he has now acquired the young birds and eggs. If he then puts them back in the nest and the mother comes and takes them, he is exempt from sending her away again. This is because the eggs are already his.

לקה ואינו משלח – even though this Is a prohibition that after its violation is transformed into a positive commandment, flogging is not administered. Here this is the reason, as Rabbi Yehuda holds that sending away is implied from the outset, but what are you able to do when you find the nest? You send away the mother bird, and there is not here a negative prohibition that after its violation is transformed into a positive commandment, but rather, you have violated a positive commandment and a negative commandment, but the Halakha is not according to Rabbi Yehuda.

If one took the mother with the young: Rabbi Judah says: he has incurred [forty] lashes and he need not now let her go. But the sages say: he must let her go, and he does not incur lashes. The Torah prohibits taking the mother bird, but then says that one should send the mother away. The question is: can one remedy the prohibition by performing the positive aspect of the commandment? Rabbi Judah says that once he has taken the mother, he has irrevocably transgressed the commandment. There are two implications: 1) he has incurred the punishment for transgressing a negative commandment (lashes); 2) he need not send the mother away, because there is no longer any commandment to do so. The other sages disagree. They hold that the transgression may be fixed by sending the mother away. Since when he transgresses there is the potential to fix the problem, one can never incur a punishment for transgressing such a type of commandment.

אין לוקין עליה – if he fulfilled the positive commandment that is in it, but if he did not fulfill the positive commandment, such as when one takes the mother from the fledglings and slaughters it, it dies while under his control, he is flogged.

This is the general rule: [For the transgression of] any negative commandment which has of a remedy by the subsequent fulfillment of a positive commandment one does not incur lashes. This is the general rule. If there is a negative commandment that can be remedied by performing a positive commandment, then one cannot receive lashes for transgressing the negative commandment.

מצוה שהיא כאיסר – that there is no loss of money in it, other than a small amount.

One may not take the mother with the young even for the sake of purifying the metzora. One might have thought that if one needs a bird for the purification process of the metzora (one with skin disease) that it would be permitted to take the mother with the young. This purification process requires two birds (Leviticus 14:4). The mishnah states that this is prohibited one may not transgress one commandment in order to observe another.

If in respect of so light a commandment, which deals with that which is but worth an issar, the Torah said, “In order that you may fare well and have a long life”, how much more [must be the reward] for the observance of the more difficult commandments in the Torah! The mitzvah of sending away the mother bird is a relatively inexpensive mitzvah a bird is on average worth only about an issar. Thus the person who shoos the mother bird away has lost only an issar, a tiny amount of money. Nevertheless, the Torah states that he will receive a reward of having a long life. The mishnah ends with a note of encouragement, that if such a great reward is received for such an easy commandment, how much greater must be the reward for observing more difficult, and costly, commandments. Congratulations! We have finished Tractate Hullin! It is a tradition at this point to thank God for helping us finish learning the tractate and to commit ourselves to going back and relearning it, so that we may not forget it and so that its lessons will stay with us for all of our lives. Tractate Hullin was full of interesting commandments, many of which still have relevance in our lives. For those of us who eat meat (or fowl) learning Hullin is an opportunity to reflect on the meaning of taking a life in order to receive nourishment. The tractate is full of other commandments that are concerned with how we relate to killing animals in order to eat them, for instance the prohibition of killing a mother and child on the same day, or the commandment to cover the blood of a slaughtered wild animal or bird. It also dealt with the prohibition of cooking meat and milk, a practice that is to this day of great relevance in how a traditional Jew leads his/her daily life. I hope that you have enjoyed learning Hullin. In my opinion it is one of the most interesting tractates that I have learned. Tomorrow we begin learning Tractate Bechorot.