Question: To fulfill Shiluach HaKein, do you have to first catch the mother bird and remove her from the birds or is it sufficient to simply shoo the mother bird away with your hands or a stick?
Short Answer: Some poskim require you to first catch the bird, but most poskim rule leniently that any method is fine.
Explanation:
I. The Source
The Gemara (Chulin 141b) asks “with what” do you send the mother bird away (to fulfill the mitzvah of Shiluach HaKein)? The Gemara cites a machlokes to answer. Rav Huna answers “with its legs,” based on a pasuk in Yeshayahu that connects “sending” with “feet.” Rav Yehudah answers “with its wings,” as wings are the legs and the “sending” of birds. The Gemara then supports the opinion of Rav Yehudah with a story about a man who cut off the wings/feathers of a mother bird. He then retook the mother bird, as the bird could not go far without feathers/wings. Rav Yehudah excommunicated the man and required him to resend the bird away after the feathers/wings regrew.
What is the explanation of this Gemara? Rashi brings two explanations. The first explanation is that Rav Huna and Rav Yehudah disagree on how you must send the bird away, either by holding it by its feet or by its wings. Both Rav Huna and Rav Yehudah, however, agree, according to this explanation, that you must physically hold the bird and send it away to fulfill the mitzvah of Shiluach HaKein. The second explanation is that Rav Huna and Rav Yehudah disagree in a specific case where you cut the wings of the mother bird so that it can only run away a short distance. Rav Huna holds that sending the mother bird away only on its legs is sufficient, while Rav Yehudah holds that the bird must be sent away with its wings, i.e., it needs to be sent away in a manner that it could fly away – and more than a short distance. According to this explanation, neither Rav Huna nor Rav Yehudah require that the person sending the bird away actually hold the bird while sending it away. Presumably, it would be sufficient to use a stick or make waving motions with your hand to shoo the mother bird away.
Rashi adopts the second explanation, as the story in the Gemara appears to support this explanation. Accordingly, a stick or a “shooing” motion with your hands is sufficient to fulfill the mitzvah.
II. The Rambam’s Opinion
The Rambam (Hilchos Sh’chitah 13:5) writes how you send away the mother bird: You hold it by its wings and send it flying. The Lechem Mishneh (ibid) notes that the Rambam is following the first explanation of Rashi, that Rav Huna and Rav Yehudah disagree on how you physically send away the mother bird. The Rambam is paskening like Rav Yehudah, that you must first hold the mother bird by its wings and then send it away. The subsequent story in the Gemara is not a problem for this explanation, as the story just shows that you need to send the bird away by holding its wings. Since the bird no longer had wings, Rav Yehudah excommunicated the man, as he could no longer properly fulfill the mitzvah until the wings regrew. The Ran (on the Rif, 48b) agrees with this explanation of the Rambam. See also the Chasam Sofer (Orach Chayim 100) and the Aruch HaShulchan (Orach Chayim 292:6) who likewise assume this is the understanding of the Rambam.
Accordingly, the Rambam would require a person to actually take hold of the mother bird and send her away in order to fulfill the mitzvah of Shiluach HaKein.
The Maggid Mishneh (ibid), on the other hand, appears to learn that the Rambam is following the first explanation of the Gemara, as he explains that the practical import of the Rambam paskening like Rav Yehudah is that the mother bird must be sent away by holding it by its wings and sending it far. In other words, the words “holding it by its wings” in the Rambam are merely showing that the mother bird must be sent far. There would be no requirement to actually hold the bird in your hands; using a stick to send the bird far away would possibly be sufficient, even according to the Rambam. The sefer Shalei’ach T’shalach (p. 44) cites other Acharonim who agree with this interpretation of the Rambam.
Shalei’ach T’shalach adds that Rav Chaim Kanievsky zt”l and Rav Nissim Karelitz zt”l both told him that even if the Rambam specifically requires the person to catch the mother in his hands and then send it away, this requirement is only l’chatchilah. Certainly, b’dieved, the mitzvah may be fulfilled with a stick or just shooing the mother bird with his hands.
III. Rav Moshe Sternbuch’s Chiddush
R’ Moshe Sternbuch (T’shuvos V’Hanhagos 3:329) explains the Rambam a bit differently. Rav Sternbuch notes that the Rambam, in the previous halachah (ibid, 4) discusses a person who violates the prohibition by taking the mother bird and failing to send her away. Thus, in the next halachah, where the Rambam mentions holding the mother bird before sending her away, the Rambam is still only talking about a case where the mother bird was first improperly caught. In other words, the only time that the Rambam requires the person to send the mother bird away by holding it first is when the person already improperly caught the mother bird.
However, Rav Sternbuch adds that even if you use a stick to shoo the mother bird away, you must hit the nest to shoo it away, as it is insufficient to just wave the stick to scare the mother bird. Unlike the isur of chasimah (muzzling), where it is forbidden to muzzle by yelling at the animal, here it is insufficient to simply yell and scare the bird or wave a stick. In order to be “kocho” – your effort – involved in the sending, you must hit the actual nest.
Rav Sternbuch even takes it a step further. If you hold the mother and send it away with your hands, you risk violating first the prohibition of acquiring the mother (instead of sending it away). Thus, the preferred method is to hit the nest.
IV. Practically Speaking
The Shulchan Aruch (Yoreh Dei’ah 292:4) rules like the second explanation of Rashi (above), and therefore does not mention any requirement to send the mother away by first catching it with your hands.
The sefer Siddur Toras Chacham (p. 11) cites Rav Yosef Shalom Elyashiv zt”l, who ruled that the mother bird should ideally be sent away by catching it first. If not, you risk violating tzaar baalei chayim. However, Toras Chacham notes that the majority of poskim rule that a stick is fine, as there is no tzaar baalei chayim when part of a mitzvah. Indeed, the sefer Shalei’ach T’shalach (p. 47) cites Rav Moshe Feinstein zt”l as ruling that ideally it should be caught first in your hands, but practically ruled that it may be performed in any method, based on the ruling of the Chazon Ish. As the sefer Shalei’ach T’shalach notes, it is almost impossible to catch it with your hands, so many poskim are lenient.
Finally, the sefer Mitzvas Shiluach HaKein (p. 17) notes that there is a picture of Rav Shlomo Zalman Auerbach performing this mitzvah with a stick. Yet, his sons, Rav Azriel and Rav Shmuel Auerbach have explained that this is no proof, as in this case, the nest was on an electric wire.
Rabbi Ephraim Glatt, Esq. is the Associate Rabbi at the Young Israel of Kew Gardens Hills, and he is a Partner at McGrail & Bensinger LLP, specializing in commercial litigation. Questions? Comments? Email This email address is being protected from spambots. You need JavaScript enabled to view it..
