The Test Of A Nest

I discovered a gem, however. There is a 400-plus-page sefer called Shaleach Tishalach that discusses exclusively the laws of shiluach ha’kan! It was written by Rabbi Naftali Weinberger. He writes that Rav Chaim Kanievsky ruled that nowadays we can assume that an average person does not want to acquire any eggs that have been laid in his tree. He has no use for the eggs. Consequently, the eggs should still be considered ownerless. Further, R’ Moshe Feinstein, zt’l, wrote in a teshuvah that if, upon discovering the nest, a person states that he does not want the eggs, we believe him retroactively. Therefore it is considered as if he never acquired the eggs. A person’s property does not serve as an agent to acquire an item for the owner if the owner doesn’t want it.

Further, the sefer discusses the permissibility of declaring the eggs hefker after he already acquired them. This last point, though, is considerably controversial. Rav Chaim Kanievsky offers advice to an individual who anticipates a nest being made on his tree. He should make a one-time declaration that he never wants to acquire any eggs that are laid in his tree. The eggs would then be hefker according to all opinions.

According to many opinions, the eggs in my tree were always ownerless. However, I decided to declare them ownerless in an attempt to fulfill some other opinions as well. (Rav Chaim Kanievsky advises that the statement declaring the eggs hefker should be made in front of three people who would be valid witnesses for kiddushin. This is opposed to the declaration that one does not want to acquire any eggs that are laid in his tree in the future; that does not need to be made in front of three people.)

The next question was the kashrus status of the mother bird. One can only fulfill the mitzvah of shiluach ha’kan with kosher birds. I previously had some correspondence with Bernd Heinrich, Ph.D., a professor emeritus in the biology department at the University of Vermont and author of 15 books. He is considered the foremost expert on ravens in the United States. A year earlier I had asked for his assistance in explaining a passage about ravens in the Gemara. I figured he would be knowledgeable about other birds as well. So I e-mailed him a picture of the nest. He responded immediately that the bird was called a mourning dove. Apparently this bird is so common that it was like asking a Jewish mother to identify a kneidel. At any rate, the mourning dove is a kosher bird. The next piece of the puzzle had fallen into place.

The next issue was that the halachah follows the vast majority of Rishonim who hold that the mitzvah of shiluach ha’kan is only fulfilled by sending the mother bird away, not the father bird. This fulfills the literal reading of the verse. However, the male mourning dove, being a responsible father, also takes a turn sitting on the eggs. How could I determine which was the male and which was the female? I e-mailed Bernd Heinrich again and he informed me that it is virtually impossible for a layman to tell them apart. However, there was some good news. Mourning dove dads like taking the day shift, so you can be reasonably certain that the bird sitting on the eggs in the evening is the mother bird. R’ Naftali Weinberger said he researched this fact and apparently many kosher birds share this same schedule.

At this point I figured I would get a tall ladder and climb up the tree to send away the mother bird. The next issue I had is that by the time I got up the ladder, the mother bird would probably be long gone. Rav Chaim Kanievsky advises that a person who is approaching a bird’s nest to fulfill the mitzvah of shiluach ha’kan should intend that any act that sends away the mother bird should be fulfillment of the mitzvah. So even if the very act of approaching the nest scares away the mother bird, he has still fulfilled the mitzvah.

As Pesach was quickly approaching, I figured we would have time during chol ha’moed to borrow a ladder and fulfill the mitzvah. Unfortunately, there was a terrible storm during the first days of Pesach. When we returned home, the nest and eggs were gone. My kids were disappointed about losing their science lesson; I was upset at losing my mitzvah.

I did, however, get a second chance, sort of. While it is true that one can only fulfill the mitzvah of shiluach ha’kan with a kosher bird, that doesn’t mean that the bird has to be recognized as one. The fact is that the Gemara says that the number of kosher species of birds is too numerous to count. The number of non-kosher bird species is only 24. (Each species may have numerous subspecies.) Unfortunately, since we cannot properly identify the 24 non-kosher birds listed in the Torah, we are forced to treat only birds that have a valid tradition that they are kosher as kosher. Otherwise any bird may be one of the 24 non-kosher birds. However, in terms of fulfilling the mitzvah of shiluach ha’kan, if you don’t know for certain that a bird is non-kosher, you should fulfill the mitzvah. (In general there is a debate whether or not a berachah is recited on the mitzvah of shiluach ha’kan. It would certainly not be recited in this case.) According to the Ran, the 24 non-kosher species of birds are all predators. (There are other Rishonim who disagree.)

This year, a bird made its home in my air conditioner. I had already followed Rav Chaim Kanievsky’s advice and declared that I never wanted to acquire any eggs on my property. So these eggs were certainly hefker. The bird was not recognized as a kosher bird, but it likewise was not known as a non-kosher bird. Further, my research demonstrated that it was not a predator. Therefore, my family fulfilled the mitzvah of shiluach ha’kan on this nest, without a berachah. As a bonus, my air conditioner still worked!