Daf Yomi

Remember the Sabbath Day…

“Shiluach HaKen Is Both in the Time of the Temple and After”

(Chulin 138)

The Torah (Devarim 22:6) states that one who finds a bird’s nest with chicks or eggs on the road or in a tree may not take the mother bird while she is resting on her young. One must send away the mother bird and only then take the young. This is referred to as the mitzvah of shiluach haken – sending away from the nest.

The Mishna on our daf says that this mitzvah applies both during the times of the Beis HaMikdash and even when there is no Beis HaMikdash. The Gemara comments that this is a superfluous statement because there is no reason to assume that the mitzvah would apply only when there is a Beis HaMikdash.

A Query to the Chasam Sofer

The following question was asked of the Chasam Sofer (Responsa Orach Chayyim 100): Is one who happens upon a nest on Shabbos required to perform the mitzvah then or not?

“V’habanim Tikach Lach”

In answer to this query, the Chasam Sofer first goes into a lengthy analysis of the mitzvah in which he cites, among others, the Chacham Tzvi, who is of the opinion that one is only required to send away the mother bird but is not required to take the chicks. In his view, the Torah stated the words “v’habanim tikach lach” – and the offspring take for you – as a segulah, that in the merit of this mitzvah one will be blessed with children.

Evoking Compassion

Finally, the Chasam Sofer cites the Zohar (Tikunei Zohar, Tikuna 6, as cited by Responsa Chavos Yair, Siman 67), who offers the following Kabbalistic reason for the performance of this mitzvah. According to the Zohar, when one sends the mother bird away and takes its young, this evokes feelings of compassion in the mother, who by nature takes pity on her young. The mother bird’s merciful cry arouses Hashem’s compassion for His young – Bnei Yisrael – and causes Him to take pity on us.

However, according to the Zohar, one is prohibited from performing this mitzvah on Shabbos because in so doing, we are beseeching Hashem for mercy, which we are prohibited from doing on Shabbos.

Nigleh or Nistar

The Chasam Sofer points out that apparently our Gemara differs with this Zohar. According to the Zohar, the Mishna’s statement that the mitzvah applies whether or not there is a Beis HaMikdash is far from superfluous. One might have thought that the mitzvah only applies during our exile when we are in special need of Hashem’s mercy for our redemption. Thus, according to the Zohar, the Mishna is teaching that the mitzvah is practiced even during the era of the Beis HaMikdash, because even then we are in need of Hashem’s mercy. The fact that the Gemara finds the Mishna’s statement superfluous indicates that the Zohar’s reasoning is not accepted according to halacha.

The Chasam Sofer notes that whenever there is a dispute between “nigleh” and “nistar” (revealed and hidden, i.e., the Talmud and Kabbalah), we follow “nigleh.”

Tzeidah or Muktzeh

Therefore, the Chasam Sofer offers another reason to prohibit the mitzvah on Shabbos. According to Rambam (Hilchos Shechita 13:5), the mitzvah entails grabbing the bird’s wing with one’s hand and causing it to fly away. Thus, according to Rambam, doing so on Shabbos would incur a violation of the melacha of trapping – tzeidah. And even in the event that the mitzvah does not involve trapping the bird, it is nevertheless prohibited because the bird is muktzeh and the mitzvah of shiluach haken does not override the prohibition of muktzeh.