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ןנברמ אברוצ ןקה חוליש תוכלה · 239

I know [this is the din] in pits, trenches and only in effect when the nest is happened upon by
caves? The Torah writes “or on the ground.” chance, or at the very least in a place where it is
And now that we have included all these var- not under human control.
ious things [in our drasha of] the pasuk, why
does the Torah write “before you on the road”? If you Find a Bird’s Nest, Do you have to
To tell you: Just as on the way it’s not in your Perform the Mitzva? (Mitzva Chiyuvit/
ownership, so must all nests [that you want to Kiyumit)
perform the mitzva] be out of your ownership. The next question we must address is the chiyuv
From here we learn that doves from the coop to perform Shiluach Hakein. If one finds a nest,
and from the attic that built their nests in parts and doesn’t want the eggs or chicks, must one
of the building that receded or jutted out, and nevertheless send the bird away (mitzva chiyuvit)
geese that nest in orchards – one can perform or is one only chayav to perform the mitzva if one
the mitzva with them, but if they nested inside wants the eggs or chicks (mitzva kiyumit)?
the house, and similarly Herodian doves, one In order to answer this question, we turn to
cannot perform the mitzva with them. the Gemara in Chullin (138b – 139a):

The Gemara goes through each of the words of By profane [birds] and not by sanctified
the pasuk to identify the various dinim that per- [birds]. Why not? For the pasuk says: “Send
tain to the mitzva of Shiluach Hakein. Crucially, away the mother bird” – that which you are
the Gemara comes to the conclusion that one has obligated to send, and not that which you are
no obligation to search for a nest with which to not obligated to send, but rather to bring to the
perform the mitzva; rather, if one happens upon Temple treasurer.
a nest, one can perform the mitzva. Ravina said: Therefore, a bird which has killed
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The Smak (251) confirms the conclusion of a human is exempt from the mitzva of Shilu-
the Gemara and writes: ach Hakein. Why? The pasuk says to send that

We taught in Perek Shiluach Hakein that the which you are obligated to send, not that which
mitzva of Shiluach Hakein is only practiced you are not obligated to send but rather to bring
when the nest is not prepared [for such a pur- to the beit din. How would such a case happen?
pose] but rather happens by chance. If the bird’s din has been decided already, it’s
chayav mitah! Rather, the case is where the din
This conclusion is also confirmed by the Rif and hasn’t been decided and he needs to take the
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the Rosh, who both quote the Gemara as it’s bird to the beit din to fulfil the mitzva of “And
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written. The Ran and the Meiri also write that you should remove the evil from within your
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the mitzva is only practiced when one happens midst.”
upon a nest by chance, not when the nest is pre-
pared and waiting for the mitzva. Based on this Gemara, the Ran (Chidushei
As we have seen, the Gemara and the Rishon- HaRan, Chullin 139a) asks a question. Shouldn’t
im overwhelmingly understand that the mitzva is the positive and negative mitzvot associated with

2. We will explore in a later section whether or not one must perform the mitzva in such a circumstance.
3. Chullin 48a
4. Chullin 12:1
5. Chidushei HaRan, Chullin 139b
6. Beit HaBechira, Chullin 139b

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