Page 242 - Tzurba M'Rabanan Volume1

240 · Hilchot Shiluach HaKein Tzurba M’Rabanan

Shiluach Hakein come and push off the positive Gemara this way:
mitzva of תרעבו? He answers by explaining that Meaning, [the question in the Gemara is ask-
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the mitzva of תרעבו carries more weight than that ing] do the lower row of eggs create a separa-
of Shiluach Hakein because there is no choice tion before the mitzva of Shiluach Hakein [is in
about תרעבו, while concerning Shiluach Hakein effect], for it wouldn’t be a separation, it would
the individual doesn’t have to perform the mitz- be forbidden to take the eggs until he sends the
va if he’s not interested in the eggs/chicks. From mother away, as we explain later.
the Ran we see quite clearly that the mitzva is a 8
mitzva kiyumit – a mitzva that is performed on a R. Yair Bacharach understood that the ap-
proach of Tosafot and Rashi implies that one can
voluntary basis, where if one puts oneself in a cer- choose whether or not to perform the mitzva or
tain circumstance the mitzva must be performed, not, for if this was not the case, one would be ob-
but where there is no obligation on the person to ligated to perform the mitzva on the first row of
perform the mitzva. eggs, and the problem would be moot.
Another Gemara can help us to clarify the It seems clear from these two Gemarot and the
issue further. The Gemara in Chullin (140b) asks Rishonim that the mitzva of Shiluach Hakein is a
a series of questions about Shiluach Hakein: mitzva kiyumit, and need only be fulfilled when
Asked R. Yirmiyah: A cloth that you spread one wants the eggs or the chicks. Many Acha-
[over a nest], does it make a separation [that ronim agree with this conclusion. The Pitchei
would separate between the eggs and the bird Teshuva (YD 292) writes that it’s not a clear ob-
and therefore enable one to take the eggs with- ligation and there’s no bitul aseh for not perform-
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out performing Shiluach Hakein]? Do feathers ing Shiluach Hakein, though similar to tzitzit,
make a separation? Do irregular (i.e. non-fer- one who doesn’t perform the mitzva given the
tile) eggs make a separation? Do two rows of opportunity is not completely protected in a time
eggs one on top of the other make a separa- of trouble.
tion? Does a male bird [which isn’t part of the The Chatam Sofer (OC 1:100) connects the
chiyuv of Shiluach Hakein] with a female bird discussion here to that regarding another aspect
on top of him make a separation? Undecided. of the nature of the mitzva of Shiluach Hakein – is
it a mitzvat aseh in and of itself, or a lav hanitak
In Rashi’s (s.v. mahu she’yachutzu) explanation of l’aseh (a positive commandment that comes to re-
the Gemara he writes: pair a transgression ). He writes that if one holds
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Two rows of fertile eggs one on top of the like R. Yehuda that it’s a mitsvat aseh in and of it-
other what’s the din? If he only wants the bot- self to send the mother bird away, this seems to
tom eggs, do the top eggs create a barrier be the case whether or not one wants the birds –
which would exempt him from sending away in any event one must perform the mitzva. How-
the mother bird, or not? ever, if one holds like the Rabbanan that Shilu-
ach Hakein is a lav hanitak l’aseh, then the mitzva
Tosafot (s.v. sh’nei sidrei betzim) also explains the is a mitzva kiyumit that one performs only in an

7. Devarim 13:6: ןמ ךחידהל םידבע תיבמ ךדפהו םירצמ ץראמ םכתא איצומה םכיקולא ’ה לע הרס רבד יכ תמוי אוהה םולחה םלח וא אוהה איבנהו
ךברקמ ערה תרעבו הב תכלל ךיקולא ’ה ךוצ רשא ךרדה:
8. Chavot Yair 67
9. A classic mitzva kiyumit
10. For a further discussion of השעל קתינה ואל see Makkot 15a, She’egat Aryeh Siman 81

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