Talking Turkey About Shiluach Hakein

Shimon stopped in his tracks, quailing slightly under his friend’s gaze. “What are you talking about?”

“Well,” Boruch explained gently, “some Rishonim rule that l’halacha, the only time there is a mitzvah of sending the mother bird away is to rectify the aveirah of taking the eggs from under the mother bird in the first place. Indeed, according to this view, one never recites a bracha on this mitzvah. Just as one does not recite a bracha on returning a stolen object, since this mitzvah only comes about through an aveirah, a bracha is never recited.”

Shimon tried to swallow his pride. “Interesting, but there must be others who flock to different opinions.”

“Yes, indeed there are,” Boruch nodded. “But it should be noted that Rav Elyashiv, Rav Scheinberg, and Rav Chaim Kanievsky ruled that one should never recite a bracha on shiluach hakein.”

“Nu, nu,” Shimon replied defensively. “I read the bracha straight out of my siddur, and it says it’s based on the Aruch HaShulchan.”

“Fine. I’m not a posek,” Boruch conceded, choosing to duck a full debate. “By the way, where exactly did you happen upon this nest?”

Shimon puffed out his chest proudly, clearly feeling like he had a feather in his cap. “Right in front of my house. It was sitting right here on my window ledge.”

“Would you be comfortable leaving items on your windowsill?”

“Sure! No one would take things off my windowsill,” Shimon beamed. “See? I did the mitzvah l’mehadrin!”

“Actually, just the opposite,” Boruch warned. “Since you are comfortable leaving things on your windowsill, your windowsill is considered a chatzer hamishtameres, a guarded courtyard. The halacha is that your windowsill acquires ownerless items for you. If someone dropped a hundred-dollar bill out of a plane and it landed on your windowsill, that hundred dollars would automatically be yours. No one could take it. So too, the bird’s nest may automatically be yours. The Mishna says that to fulfill the mitzvah of shiluach hakein, the nest must be hefker (ownerless). This nest may not be hefker.”

“Ah, good point,” Shimon countered quickly. “But isn’t there a difference? I want the hundred dollars. I have no need for a bird’s nest.”

“Great s’vara,” Boruch smiled. “HaRav Chaim Kanievsky said the exact same thing. However, just for the sake of being complete, HaRav Nosson Gestetner disagreed. He said the only way you could have fulfilled the mitzvah was by declaring the windowsill ownerless before the eggs were even laid. Otherwise, you might just be parroting an incomplete halacha.”

“Great. I did the mitzvah like HaRav Chaim Kanievsky.”

“Okay. Once again, I’m not a posek,” Boruch said. “By the way, how exactly did you chase away the mother bird?”

Shimon hesitated. “Well, to be honest, I recited the bracha, walked towards the nest with a stick, but by the time I got close to the nest, the bird had already flown away.”

Boruch sighed. “In all probability, you didn’t fulfill the mitzvah. You intended to chase the mother bird away with the stick, but in reality, the bird flew away on its own.”

“So what should I have done?” Shimon asked, his confidence wilting.

“Once again, I’m not a posek, but Rav Chaim Kanievsky said you should have in mind when you approach the nest that any move you do that scares away the mother bird should fulfill the mitzvah.”

“And then I’m yotzei according to all opinions!”

“Not necessarily,” Boruch corrected. “Rashi and the Rambam seem to hold that you must actively shoo away the mother bird. The only way to do that is to grab onto the mother bird and then shoo it away.”

“Ooh.” Shimon shuddered. “I’m not sure I could do that. I’m a bit chicken when it comes to holding birds. But...next time I’ll overcome my fright and actually grab the mother bird.”

“No, don’t do that!” Boruch exclaimed. “The Aruch L’ner says that by grabbing the mother bird, you may have violated the negative precept of taking the mother bird without sending her away. Granted, according to Rashi and the Rambam, that is how to do the mitzvah, but the Aruch L’ner suggests that according to the other opinions, it’s forbidden.”

“This feels like a wild goose chase,” Shimon groaned. “So how can I fulfill all the opinions?”

“The Chasam Sofer says you can’t. Practically, you will not be able to do the mitzvah according to both the Rambam and Rashi. Rav Moshe Shternbach says practically you can hit the actual nest and fulfill Rashi and Rambam’s opinion. But interestingly enough, he says you must actually hit the nest. If you scare the bird away simply by your presence, he holds you have not fulfilled the mitzvah according to anyone, unlike the opinion of Rav Chaim Kanievsky I mentioned earlier.”

“So according to the Chasam Sofer, what should one do?”

“Well, interestingly enough, the Chasam Sofer says if you are not sure there is a mitzvah involved, it is better not to do it. He reasons that fulfilling shiluach hakein is not an objective obligation. One is only obligated to send the mother bird away if he actually needs the eggs. However, if he doesn’t really want the eggs, and he may not be fulfilling a mitzvah, the Chasam Sofer advises against trying to do the mitzvah. If he has not fulfilled the mitzvah, he may have violated the biblical concept of tzaar baalei chaim.”

“Is the Chasam Sofer’s opinion accepted?”

“Anecdotally, I have heard that Rav Dovid Feinstein said not to bother a mother goose in a park and to leave her alone,” Boruch explained. “Rav Chaim Kanievsky is quoted as saying that one should try and fulfill the mitzvah when possible. One does not need to be concerned with tzaar baalei chaim since one is involved in a mitzvah. Nevertheless, Rav Chaim said that if l’halacha there is no mitzvah, such as a situation where one is sending the mother bird away but not taking the eggs, one should not send the mother bird away. Even though there are some opinions that sending the mother bird away by itself is a mitzvah even without taking the eggs, since that view is not accepted l’halacha, one cannot be machmir since he is running up against tzaar baalei chayim.”

“Wow, this does seem complicated,” Shimon admitted.

“By the way,” Boruch asked, “what type of bird did you have on your property?”

“What difference does it make? Are we establishing a pecking order?”

“Shiluach hakein is only done with kosher birds.”

“What if it has the signs of a kosher bird but there is no mesorah on it, so practically we can’t eat it?” Shimon challenged.

“The Minchas Elazar says you can still fulfill the mitzvah with such a bird, but without a bracha.”

“What about if I’m not sure if it’s a kosher bird?”

“Then the Minchas Elazar says not to do the mitzvah.”

Shimon pulled out his phone. “Here is a picture of the bird’s nest.”

Boruch squinted at the screen. “Ah, that’s a mourning dove. It is a kosher bird! By the way, what time of day did you attempt to do the mitzvah?”

“Zerizim makdimim l’mitzvos!” Shimon declared. “I did it in the morning!”

Boruch chuckled softly, shaking his head. “Well, the mitzvah of shiluach hakein is only on the female bird. Generally, the male mourning dove incubates the eggs the entire morning. So, you wouldn’t have gotten the mitzvah for that reason as well.”

“So, let me get this straight,” Shimon summarized, counting the points off on his fingers. “I didn’t make the windowsill hefker. I didn’t actually chase the bird away. It might be forbidden to grab it anyway. According to some, I shouldn’t have even tried unless I wanted the eggs. I might have violated tzaar baalei chaim. And to top it all off, I was just ‘robin’ a father of a peaceful morning?”

Boruch offered a sympathetic smile, closing his Gemara.

“Exactly. It seems when it comes to this mitzvah, you really can’t just do it on a lark.”