[Avodah] Shiluach Haken

[Micha Berger]

On Fri, Aug 16, 2013 at 01:17:54PM +0300, menucha wrote:
>           ...   But now, I am looking for ideas (preferably with  
> sources) about the concept of doing, or not doing shiluach haken in a  
> situation where I really do not want the babies, have nothing to do with  
> them...

I remembered there was a machloqes acharonim. RNS, kedarko, says it's a
"rationalist" vs "mystic" thing. The rationalist sees no pont and in fact
disturbing the mother bird for naught is a bad thing. The mystic will
talk about how the crying of the bird awakens Midas haRachamim... But
I don't believe that his favorite cleaving point is even real. Mesorah
has had rational mequbalism (Ramchal), mystical non-mequbalim (Maharal),
and every other mixture.

Here, the Ben Ish Hai (ad loc) is definitely a mystic and a mequbal,
but he *prohibits* sending away the mother. Not only isn't it shiluach
haken, but the mother may not go back to feeding the child.

But in trying to see if anyone online has something that reminded me
who the sources were, I think I hit the mother lode. From Kollel Iyun
haDaf (Insights, Chullin 139b)
<http://dafyomi.co.il/chulin/insites/ch-dt-139.htm>:

    3) HALACHAH: ONE WHO CHANCES UPON A BIRD'S NEST BUT DOES NOT NEED
    THE EGGS

    OPINIONS: The Gemara derives from the words, "Ki Yikarei" -- "if a
    bird's nest chances to be before you" (Devarim 22:6), that one is
    not obligated to go searching in the mountains and valleys in order
    to find a bird's nest to fulfill the Mitzvah.

    What is the Halachah when one happens to find a bird's nest, and he
    does not need the eggs or chicks? Is he obligated to go over to the
    nest and send away the mother bird in order to perform the Mitzvah
    of Shilu'ach ha'Ken, or does the Mitzvah to send away the mother bird
    apply only when one wants to use the eggs for himself? (The following
    discussion is based on the research of Rabbi Naftali Weinberger in
    SEFER SHALE'ACH TESHALACH, a comprehensive treatise covering the
    laws and meanings of the Mitzvah of Shilu'ach ha'Ken.)

    (a) The PISCHEI TESHUVAH (YD 292:1) cites the CHAVOS YA'IR (#67) who
    concludes that one is obligated to send away the mother bird whenever
    possible. He proves this from the Gemara here, which, according to his
    understanding, teaches that one is not obligated to go searching for
    a bird's nest in order to fulfill the Mitzvah, but one is obligated
    to perform the Mitzvah when he chances upon a bird's nest, even if
    he does not need the eggs. (The Chavos Ya'ir cites proof for this
    ruling from the words of the Zohar; see Insights to Chulin 138:5.)

    This is also the view of the MAHARAL (Tiferes Yisrael, end of chapter
    61), MAHARSHAM (1:209), BIRKEI YOSEF (YD 292:8), and ARUCH HA'SHULCHAN
    (YD 292:1-2).

    This obligation applies even to a person who has absolutely no
    interest in owning the contents of the nest, and even if stopping
    to fulfill the Mitzvah will cause him to suffer a monetary loss,
    as the CHASAM SOFER (OC #100) and NETZIV (in Meromei Sadeh here)
    explain this view. The reason for this is that since the performance
    of this Mitzvah hastens the Ge'ulah (as described in Insights to
    Chulin 138:4-5), one is not allowed to squander such an opportunity,
    and thus one is required to fulfill the Mitzvah.

    It is interesting to note that the ARIZAL (quoted by RAV CHAIM
    VITAL in his introduction to Sha'ar ha'Mitzvos; Birkei Yosef,
    Gilyon Shulchan Aruch YD 292:6, and Aruch ha'Shulchan YD 292:1)
    writes that according to Kabalah, one must make every effort to
    perform Shilu'ach ha'Ken. He adds that one who does not perform the
    Mitzvah of Shilu'ach ha'Ken will return to this world as a Gilgul.)

    (b) However, the CHACHAM TZVI (#83) and CHASAM SOFER (OC #100) rule
    that when one has no need for the offspring, he is not obligated to
    send away the mother bird. The Chasam Sofer adds that if the purpose
    of the Mitzvah is to inculcate in the person the trait of compassion
    (see Insights to Chulin 138:4), then it is clear that one is not
    obligated to send away the mother bird when he has no need for the
    offspring, because doing so causes distress to the bird for no reason.

    This is also the opinion of many Rishonim, including TOSFOS (140b,
    DH Shnei), the RAMBAM (Hilchos Shechitah 13:5), RAN, ME'IRI (139b),
    and RABEINU BACHYE (end of Devarim 22:7).

    Some agree that it is meritorious to pursue and perform the Mitzvah,
    but it is not mandatory to do so and one is not punished for not
    doing so. Others, such as the Me'iri, maintain that one should not
    send away the mother bird when he has no need for the eggs. Indeed,
    the Chasam Sofer writes that according to the Ramban's reason for the
    Mitzvah (see Insights to Chulin 138:4), one should not send away a
    mother bird when he has no need for the eggs, because doing so would
    constitute an act of cruelty. (See also Insights to Chulin 141a.)

    HALACHAH: Most Acharonim rule that there is no obligation to send
    away the mother bird when one chances upon a nest and has no need
    for the eggs. This is the ruling of the Chasam Sofer (loc. cit),
    AVNEI NEZER (OC #481), CHAZON ISH (YD 175:2), CHAZON YECHEZKEL,
    MINCHAS CHINUCH (#544), and the CHAFETZ CHAIM (in SEFER MITZVOS
    HA'KATZAR, Mitzvos Aseh #74).

    Most contemporary Poskim also rule this way, including RAV SHLOMO
    ZALMAN AUERBACH zt'l (in MINCHAS SHLOMO 2:5:4), and RAV YOSEF SHALOM
    ELYASHIV shlit'a and RAV CHAIM KANIEVSKY shlit'a (in personal
    conversations with Rabbi Naftali Weinberger). This is the common
    practice today. (Rabbi Weinberger quotes RAV YAKOV YISRAEL FISHER
    zt'l, however, who was of the opinion that one is obligated to send
    away the mother bird when he chances upon a nest, even though he
    does not need the eggs).

:-)BBii!
-Micha

-- 
Micha Berger             Nearly all men can stand adversity,
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