The past few days, Daf Yomi has been learning the last perek in Chulin, Shiluach Hakan. STAR-K would like to draw the attention of Daf Yomi learners to an article on the subject in its Kashrus Kurrents publication. Written by Rabbi Zvi Goldberg and reviewed by Rav Moshe Heinemann, shlit"a, it is a concise review of the halacha l'maaseh of Shiluach HaKan.
By: Rabbi Zvi Goldberg
Published Spring 2017
Shiluach Hakan1 (sending away the mother bird before taking her young) is a mitzvah that is infrequently performed. Its reward is the blessing of a long life – similar to the mitzvah of honoring one’s parents. Let’s examine how, when and where to perform the mitzvah of Shiluach Hakan.
“If a bird’s nest happens to be before you…young birds or eggs, and the mother is roosting…you shall not take the mother with the young. You shall surely send away the mother and take the young for yourself, so that it will be good for you and will prolong your days.”2
Possible Reasons for the Mitzvah
The Rabbis ruled that a person may not state that the reason for the mitzvah is compassion for the mother bird. One commentator interprets the Talmud’s prohibition as applying strictly to reciting this in one’s prayers, as if to establish compassion as the definitive, sole reason. In reality, there are many reasons for the mitzvah, and compassion is but one facet.3
The Ramban states that compassion for the mother bird herself is not a motive for this mitzvah, since human needs override those of animals. Rather, the Torah wishes us to act compassionately so that we instill this trait in ourselves. He also references a profound kabbalistic reason (sod) for this mitzvah. Rabbeinu Bachya states that taking the mother and her offspring at the same time is analogous to destroying the entire species.
Rewards for The Mitzvah
Rashi comments that Shiluach Hakan is a relatively easy mitzvah to carry out, involving little hardship or cost. One earns the tremendous reward of long life through its performance. We can, therefore, only imagine how great the reward will be for more difficult mitzvos.
A number of Midrashim state that fulfillment of this mitzvah is a segulah for having children.4 The mitzvah is also a segulah for getting married, as well as for acquiring a new house.5
The Zohar6 explains the mystical reason behind the vast rewards of this mitzvah. The bird’s distress elicits Hashem’s compassion, and He showers His mercy on Klal Yisroel and individuals in need. In turn, Hashem then rewards the person who brought this about.
Who May Perform the Mitzvah
The mitzvah can be executed by men, women,7 and children. It may not be carried out on Shabbos or Yom Tov.8
A person who comes across a nest is not obligated to send away the mother, unless he actually wants the offspring. Nevertheless, it is commendable to carry out the mitzvah and even to seek out the opportunity to do so.9 Even if one does not eat the offspring after taking them, and his sole motivation is to perform the mitzvah, he has properly fulfilled the mitzvah.10
Eligibility of Birds
Only kosher birds are eligible for this mitzvah. When determining which birds are kosher to eat, we require a clear mesorah, tradition, that our ancestors ate these birds.11 However, when determining which birds are fit for the mitzvah of Shiluach Hakan, we may rely on the physical signs of kosher birds as delineated by Chazal.12
Therefore, we can distinguish among three categories of birds: 1) Kosher birds which we eat and may use to fulfill the mitzvah, for example certain species of pigeons, doves, geese, and ducks; 2) Birds which exhibit kosher signs,13 yet do not have a clear mesorah, for example sparrows, robins, cardinals, and orioles. These birds may be used to fulfill the mitzvah, but they are not considered kosher to eat; and 3) Birds which are definitely non-kosher with which we should not perform Shiluach Hakan. This includes eagles, ravens and other birds of prey.
Eligibility is also determined by gender and age as follows:
The mitzvah can be fulfilled only when the mother bird is roosting. Since the male also roosts at times, one should determine the gender of the bird before sending it away. However, there is generally no way the layperson can distinguish between genders of birds. Of note, the male dove, pigeon and sparrow will usually sit during the day while the female sits at night. Therefore, the mitzvah should be fulfilled at night. The female American Robin, Canada Goose and Mallard Duck sit both day and night. If the roosting habits are unknown, one should fulfill the mitzvah at night, as we assume it is the mother on the nest.14
One may fulfill the mitzvah any time the mother is incubating her eggs or brood.15 However, once the chicks develop the ability to fly on their own, the mitzvah may no longer be fulfilled.16 Chicks usually develop this ability approximately two weeks after hatching, depending upon the species.
Location of Nest
The mitzvah can be done in any country in the world, and even at sea.17 However, the Mishna states that a kan mezuman, a prepared nest, is excluded.18 This means that the mother bird and her offspring must be ownerless. Since the halacha states that a chatzer, private property, acquires objects on behalf of its owner even without his knowledge, a nest in one’s yard would generally be ineligible for this mitzvah. This is because the nest and offspring would automatically belong to the owner. Therefore, some authorities hold that one could fulfill the mitzvah only with nests in public places, such as parks.19
However, according to other authorities it is possible to remove the offspring from the owner’s possession by making them hefker, ownerless and available to all.20 One may follow these opinions and declare in front of three people21 that the eggs or chicks on his property are hefker. He may then proceed to fulfill the mitzvah.22
No brocha is recited on this mitzvah.23 One reason given for this is that the bird may fly away of its own volition after the brocha is recited, and the mitzvah will not have been fulfilled.24
Sending Away The Mother
One need not actually pick up the bird to send it away. Rather, one should create some stimulus to cause it to fly away, such as gently tapping a stick on the nest or nearby tree.25 Even clapping one’s hands is satisfactory.26
Taking Eggs or Chicks
Once the mother bird has flown away, one must take the eggs or chicks.27 Even if the mother bird is watching, one still fulfills the mitzvah. To perform a halachic acquisition, they should be lifted to a height of three tefachim (about 12 inches).28 Upon completion of the mitzvah, one may put back the eggs or chicks and need not keep them.29
After one takes the eggs or chicks, they may be declared hefker by the one who acquired them and then returned to the nest.30 After the mother bird returns, another person may fulfill the mitzvah. In this way, the same nest may be used over and over again.31
The Cornell Lab of Ornithology notes that contrary to popular belief, most birds will return to the nest even after their offspring have been handled by humans.32 This is due to their poor sense of smell and inability to detect the scent of humans.
A messenger may not be appointed to send away the bird. One who is unable to climb a tree should first send away the bird, and then appoint another person to acquire the eggs or chicks on his/her behalf.33
One should use a sturdy ladder and exercise caution when climbing.34
Nesting Habits of Birds
By learning more about the nesting habits of birds, a person who wishes to fulfill the mitzvah will know what to look for when searching for a nest. For example, a dove gathering twigs with its beak is probably the male who is collecting them for the female while she sits on the site of the future nest nearby.
One may hang a birdfeeder and construct a birdhouse to encourage nesting. Sparrows will nest in birdhouses; however, most other birds fit for Shiluach Hakan will not.35
Brief Summary Guide to Shiluach Hakan
When one sees a bird building or sitting in a nest, he should determine whether it is a kosher species. If the nest is on private property, it may be necessary for the owner to be mafkir. During the day, it is possible that the male may be roosting. The female will be roosting in the evening, so the mitzvah should be performed at that time. One should approach the nest quietly. Usually the nests are higher than an average person’s reach, so a stick may be gently used to tap the nest or nearby tree limb. After the bird flies away, one should climb up and gently remove the eggs or chicks. The procedure requires lifting the eggs or chicks approximately twelve inches high. After fulfilling the mitzvah, one may keep the offspring or return them to the nest.36
Studying the intricate laws of Shiluach HaKan brings us closer to the fulfillment of this special mitzvah. May we merit to carry it out properly.
COMMON BIRDS FIT FOR SHILUACH HAKAN BY GEOGRAPHICAL LOCATION37
American Robin38 – North America
Canada Goose39 – North America
European Robin – Europe, Eretz Yisroel
Mallard Duck40 – North and Central America, Europe, Asia
Mourning Dove – North and Central America
Northern Cardinal41 – Eastern and Central U.S., Central America
Palm Dove – Eretz Yisroel, Africa, Europe
Pigeon – Worldwide
Sparrow42 – Worldwide
1. Meloh Ha’roim (Chulin 138b) quoting the Shalah Hakadosh that the proper pronunciation is Shiluach Hakein, with a tzeirei. The word for ‘nest’ is pronounced ‘kan’, with a patach, when it is samuch (connected) to another word, as in ‘kan tzipor’, the nest of a bird. If there is no smichus then the word for ‘nest’ is pronounced ‘kein’ (as in Tehillim 84:4). Nevertheless, common usage is ‘Shiluach Hakan”, apparently going back as far as the Shalah (16th century).
2. Dvarim 22:6-7.
3. Tosafos Yom Tov Berachos 5:3. The Rambam, in fact, writes that the reason for the mitzvah is to spare the mother bird anguish upon seeing her young being taken.
4. Derived from the words, “Ve’es habanim tikach lach”, Midrash Rabba Ki Setzei 6:6, Yalkut Shimoni 930. This segulah is cited in the Sefer HaChinuch(545), as well. The Chinuch and Ksav Sofer Al Hatorah explain how this is a function of midah k’neged midah.
5. Since this parsha is followed by “Ki yivneh ish bayis” and “Ki yikach ish isha” – Tanchuma Ki Setzei 1. See Kli Yakar Dvarim 22:7.
6. Zohar Chadash Rus pg. 94, Tikunei Zohar 6, pg. 23a, cited in Rabbeinu Bachya.
7. Sefer HaChinuch 545
8. Responsa Chasam Sofer O.C. 100. One issue is that of muktzah, and another is that according to the reasoning of the Zohar cited above, it is improper to arouse Heavenly distress on Shabbos.
9. Aruch Hashulchan 392:1, Birchei Yosef 292:8 quoting the Arizal. Rav Shmuel Kamenetsky (Am Hatorah Journal 5:7, pg 12) recommends trying to perform the mitzvah at least once. See, however, Responsa Chasam Sofer O.C. 100 and Responsa Torah Lishmah 27710. See Responsa Minchas Elazar 3:43 and Aruch Hashulchan Y.D. 292:3.
10. See Responsa Minchas Elazar 3:43 and Aruch Hashulchan Y.D. 292:3.
11. Ramo Y.D. 82:3. The Torah lists twenty-four species of non-kosher birds; all others are deemed kosher by the Torah. However, our translation of the Hebrew names for birds is not always accurate.
12. Responsa Minchas Elazar 3:43. Rav Shmuel Kamenetsky (Am Hatorah Journal 5:8, pg 20).
13. Briefly, kosher birds that are sitting on a branch place three toes in front and one in back; non-kosher birds place two in front and two in back. Kosher birds also have a crop, and their gizzards can be peeled. In general, birds of prey are not kosher (Chulin 59a). Another sign of kosher birds is that their eggs are not symmetrical; one end is wider than the other.
14. Sefer Shalayach Teshalach pg. 57
15. The eggs and chicks go through stages during which it is forbidden to eat them (e.g. while the chick is forming inside the egg). Nevertheless, the mitzvah still applies, since they could be re-incubated to a point where they could be shechted and eaten. (Ran Chulin 150a, Birchei Yosef Y.D. 292, Rav Shmuel Kamenetsky (Am Hatorah Journal 5:8 pg 16)).
16. Shulchan Aruch Y.D. 292:7.
17. Chulin 139b
18. This is derived from the pasuk which states, “Ki yikarei” — when you happen upon a nest. Chulin 138b, Shulchan Aruch Y.D. 292:2.
19. Birchei Yosef 292:3, Rav Shlomo Zalman Auerbach (Minchas Shlomo 2:97:26), Rav Yosef Shalom Elyashiv, quoted in Kovetz Torani Mevakshei Torah, chap. 106. See Chochmas Adam 105:3. Some authorities hold that before the eggs are laid, one may have in mind that he does not want his property to acquire on his behalf (Sefer Shalayach Teshalach pg. 66. See Chasam Sofer Chulin 141b, and Igros Moshe Y.D. 4:45).
20. The Steipler Gaon, Rav Aharon Kotler, Rav Chaim Pinchas Scheinberg, Rav Chaim Kanievsky and other contemporary poskim. (Quoted in Sefer Shalayach Tishalach pg. 71, and Shiluach Hakan, Feldheim, pg. 79).
21. In front of three men who are not related to him or each other.
22.If the mother has not yet left the nest since laying her eggs, all would agree that one may fulfill the mitzvah on his property (Shulchan Aruch Y.D. 292:2). Since the owner himself is forbidden to take the eggs while the mother is incubating them, the property cannot acquire on his behalf at that point. However, it would be extremely difficult to determine that the bird has never left the nest.
23. Most authorities state that no brocha is recited. See Birchei Yosef Y.D. 292:1 citing Rishonim. However, Aruch Hashulchan 292:10 interprets differently and holds a brocha is recited.
24. Responsa Binyan Tzion Hachadashos 14. See Pischei Teshuva Y.D. 292:2.
25. Rashi (Chulin 141b), Chazon Ish (Y.D. 175:2). However, many understand the Rambam (Hilchos Shechita 13:5) as ruling that one must pick up the bird with his hands and send her away. (Aruch Hashulchan Y.D. 292:6. See, however, Responsa Binyan Tzion Hachadashos 14 and Sefer Kan Tzipor pg. 30 ). Many contemporary gedolim were seen and photographed using a stick, and that is the common custom.
26. See Responsa Torah Lishma 278.
27.Chazon Ish (Y.D. 175:2). See Chofetz Chaim in Sefer Hamitzvos Hakatzar 74 and Aruch Hashulchan 292:4. However, in a minority opinion, Responsa Chacham Tzvi (83) holds that one need not take any offspring. He interprets “Habanim tikach lach” as optional, similar to “Sheshes yamim ta’aseh melachtecha.” Even if there is only one egg or chick, the mitzvah may be fulfilled, although the Torah uses the plural “Banim” (Shulchan Aruch Y.D. 292:1).
28. Based on Beiur Halacha (O.C. 366 s.v. tzarich), they could alternatively be held entirely in one’s hand to create a kinyan chatzer.
29. Shiluach Hakan, Feldheim, pg. 65, quoting contemporary poskim.
30. Under certain circumstances, it is possible that if a child fulfilled the mitzvah no one else may fulfill the mitzvah on those same eggs or chicks since a child cannot effect hefker. (See Mishne L’melech Hilchos Mechira 29:1, that hefker m’daas is considered da’as acheres makneh. Therefore, if an adult was mafkir and then the child was koneh, the child could not be mafkir.)
31. If the eggs cool down too many times, they may no longer be viable (University of Arkansas Division of Agriculture). The mitzvah is not fulfilled on non-viable eggs.
32. Communication with Anne Hobbs, Specialist, Cornell Lab of Ornithology and at www.birds.cornell.edu. The Lab strongly advises against trying to home-raise a baby bird. One issue noted is that they are ravenous eaters and need to be fed every 15 to 20 minutes, from sunrise to sunset. (Note: This would introduce the halachic issue of not eating before feeding your animals. See “Feeding Your Pet-Barking Up the Right Tree” by this author at www.star-k.org. The Lab states that most home-raised birds die, often before being released into the wild.
33. Rav Chaim Kanievski, cited in Sefer Shalayach Teshalach pg. 123.
34. Proper care should also be taken when handling birds, eggs or nests, as parasites may be present. See Talmud Kiddushin 39b stating that in a dangerous situation (sh’chiach hezeka) even a shliach mitzvah can be harmed.
35. Shiluach Hakan, Feldheim, pg. 234. This is an excellent source of practical information.
36. All federal, state, and local laws should be adhered to when performing shiluach hakan.
37. As discussed above, sparrows, robins, and cardinals are not to be eaten.
38. Although unrelated to the smaller European Robin, they are similarly named since they both have red chests. (Smithsonian – www.nationalzoo.si.com)
39.Geese are aggressive and can attack when provoked.
40. One can distinguish the gender by color. The male mallard has an iridescent green head.
41.The male cardinal is bright red and the female is light brown.
42. It is difficult to perform the mitzvah on sparrows, since they nest in places that are not easily accessible.