Ki Seitzei 5777

Sending away the mother bird[1]

כי יקרא קן-צפור לפניך בדרך בכל-עץ או על-הארץ אפרחים או ביצים והאם רבצת על-האפרחים או על-הביצים לא-תקח האם על-הבנים: שלח תשלח את-האם ואת-הבנים תקח-לך למען ייטב לך והארכת ימים
When you chance upon a bird’s nest on the way, on any tree or on the ground, [with] chicks or eggs, and the mother bird is crouching on the chicks or on the eggs, don’t take the mother bird with her children[2]. [Rather][3], send away the mother bird, and [then] take the children for yourself, in order that it should be good for you and for Him to lengthen your days[4]

This week’s parsha introduces a very exotic mitzvah. If a person finds a bird’s nest with either chicks or eggs, it is prohibited to take the mother bird along with her children². The Torah commands that first the finder must send away the mother bird, and only then take the children³. As with many mitzvos, there are various explanations among the commentators as to the purpose behind this mitzvah. Why did Hashem command us to send away the mother bird?

Rambam’s approach[5] is probably the more famous explanation. It is also the reason that most people would probably surmise on their own. He says that the reason for this mitzvah is the same as the prohibition against slaughtering an animal and its child on the same day[6]. Even though animals have no intellect, they still have intense feelings of love for their children. They also experience the same emotional pain that we do, since those feelings don’t come from intelligence. Therefore, the Torah wanted us to have mercy on the mother and not let her see her child be slaughtered before her[7]. This would create great distress for the mother. So too by the mother bird. If she saw someone take her children, it would create terrible emotional distress. Therefore, the Torah commanded us to have mercy and send her away first. This way she won’t see her children being taken.

The Ramban has a slightly different approach[8], but with a similar thrust. The Torah didn’t want us to become habituated with the trait of cruelty. It would be cruel to take the mother bird’s children in front of her. Therefore, the Torah wants us to send the mother bird away, to avoid performing a cruel act. He has a second approach which he prefers less[9]: even though ritual slaughter permits animals for human consumption, this permit is limited to show us that we shouldn’t recklessly annihilate an entire species. Slaughtering an animal and its child in one day, or taking the mother bird and its children at the same time[10], is considered a destructive act. It’s akin to exterminating the entire species. Therefore, both acts are forbidden.

The sifrei Kabbalah, the more esoteric works[11], have an approach which is more symbolic. The bird represents the Shechinah, the Divine Presence. The chicks and eggs represent the Jewish people. When the mother bird returns to find her children missing, she weeps at her loss. As a result, the Shechinah weeps that her Temple was destroyed and her children were exiled amongst the nations. Therefore, in order to awaken this Divine mercy, we are commanded to send away the mother bird[12].

However, there’s a Mishnah[13] that seems to undermine all of these approaches, especially that of the Rambam. It says that if a person while praying adds to his praises of Hashem the phrase, “Your compassion [even] reaches the bird in their nest!”, the law is you stop them from continuing to say so. The gemarra explains[14] the reason is because the person saying so believes the mitzvos of Hashem are rachamim, acts of mercy, when in reality they are simply decrees. From this it sounds like not only is sending the mother bird away not an act of mercy (like the Rambam suggested), but it’s also futile to try to think of a reason underlying any mitzvah. Since they are only decrees from Hashem, they won’t necessarily have an underlying reason. How can the above sources be reconciled?

The Rambam simply answers[15] that it’s a dispute if mitzvos have reasons behind them or not, and the accepted approach is that they do[16]. A different approach suggested[17] is that the Mishnah was discussing prayer. It’s inappropriate to say definitively that the reason behind the mitzvah is mercy, as was implied by saying it while praying. However, if someone were to simply suggest the reason behind the mitzvah is mercy, that’s okay. The different commentators are merely giving suggestions, not saying that this is the definitive reasoning behind the mitzvah.

The Ramban[18] has a more sophisticated approach. Saying that Hashem made the mitzvah because He has mercy on the bird is a mistake. The primary purpose of mitzvos are to purify us, to teach us proper behavior and character traits[19]. According to his approach, that sending away the mother bird is so we don’t become cruel, this fits perfectly. It is inherently a cruel act to take the children in front of the mother bird. It’s not that Hashem has mercy on the mother bird, and needs us to save it from pain. If He really wanted to, He could have made this situation never occur[20]. Rather we were commanded to avoid cruel acts, to become better people.

This is just one mitzvah in the Torah. Behind every mitzvah is a meaningful explanation for why it was commanded. We won’t always know all the deep principles underlying them, but the commentators throughout the centuries always try their hardest to bring out what they can. Knowing more behind each mitzvah can add new meaning to their performance. Hopefully, this will be true at least for the mitzvah of sending away the mother bird[21].

Good Shabbos.

[1] Based on my own research

[2] See Minchas Chinuch § 545 for various opinions as to when exactly one transgresses this mitzvah; if it’s when just the children are taken, or with the mother, or just the mother, or all the above

[3] Chullin 12:4 and Makkos 3:4 present a dispute between R’ Yehudah and the Sages regarding what kind of prohibition is it to take the mother bird and her children. R’ Yehudah says it’s a lav shekadmo aseh, a negative prohibition that is preceded by a positive injunction. Meaning, send away the mother bird (positive mitzvah) and don’t take her with the children (negative mitzvah). Therefore, there would be a punishment for transgressing this mitzvah. Whereas the Sages say it’s a lav hanitak le’aseh, a negative commandment given over positive rectification. Meaning, if you take the mother bird (breaking a negative mitzvah), you can rectify it by sending her away (positive mitzvah). Therefore, there wouldn’t be any punishment, since the positive mitzvah rectifies the transgression. Normally a mitzvah is considered a lav hanitak le’aseh when the positive mitzvah isn’t possible until one transgresses the negative mitzvah (Rashi to Makkos 14b s.v. כל לא תעשה; cf. Ritvah ad. loc.). Therefore, it would sound like according to the Sages, there is no mitzvah at the onset to send away the mother bird. In fact, according to many Achronim (Kesef Mishnah to Mishneh Torah Hilchos Shechitah 13:19, Sha’agas Aryeh § 33, R’ Yerucham Perlow to Sefer HaMitzvos LeRasag II Lo Sa’aseh § 137), there is no mitzvah to send away the mother bird, unless the person transgressed the negative mitzvah first. Minchas Asher Devarim § 40 understands this to be the opinion of the Rambam. He also cites Teshuvos HaRashba I § 18 and Chiddushei HaRan to Chullin 141a (although I couldn’t find it) that the reason there is no beracha on sending away the mother bird is because it involves transgressing a mitzvah first. However, the Tiferes Yisroel Boaz to Makkos 3:4 says that the Sages hold that שלח תשלח means send her away in any case, whether before transgressing or even after transgressing, whereas R’ Yehudah holds its only before transgressing. It’s not clear though why this would be considered a lav hanitak le’aseh and not a lav shekadmo aseh, since the positive mitzvah could apply before the transgression of the negative mitzvah. The Aruch HaShulchan Yoreh De’ah 292:6-10 has a different approach in the Rambam and Rashba. He explains that the Rambam (Mishneh Torah Hilchos Shechitah 13:5) holds the proper way to fulfill the mitzvah is to first grab it and then send it away. However, if a person grabbed it and didn’t release it right away, they have transgressed the negative mitzvah, yet can fix it by sending it away at a later time. The Rashba was talking about when a person delays in sending it away. However, if they plan to release it immediately like the Rambam says, they should make a beracha and have in fact fulfilled a mitzvah. He doesn’t clarify why there would be a mitzvah at the onset; perhaps he understood like the Tiferes Yisroel. See Minchas Asher loc. cit. who brings other opinions in this matter and seems to conclude that there is a mitzvah at the onset when the person wants the eggs (see note 12)

[4] Deuteronomy 22:6-7

[5] Moreh Nevuchim 3:48

[6] Leviticus 22:28

[7] The Rambam loc. cit. explains that although it is forbidden to slaughter in any order an animal of any gender and its child on the same day, the purpose of the mitzvah is specifically for the situation where a child is slaughtered before the mother. The Torah prohibited all cases to avoid that eventuality. The Ramban to Deuteronomy loc. cit. sees this as a question on this approach. The purpose behind the mitzvah should apply to all cases, just like the prohibition applies to all cases

[8] Deuteronomy loc. cit.

[9] See Sefer HaChinuch § 545, who takes the second approach of the Ramban to the next level

[10] See note 2

[11] Tikkunei Zohar Tikkun § 6 pg. 23a; Zohar Chadash Rus pg. 25b

[12] There is a dispute if there exists a mitzvah to send away the mother bird even if the person has no interest in the eggs (see Chavos Yair § 69, Teshuvos Chasam Sofer Orach Chaim § 100, HaMakneh to Kiddushin 34a, Chazon Ish Yoreh De’ah § 175; however, see note 3). The Chasam Sofer loc. cit. suggests the reason behind the mitzvah could resolve this dispute. According to the Kabbalistic approach, there’s a purpose in sending away the mother bird, even if the person has no interest in the children. According to the other approaches (either that it’s causing the mother pain or it’s cruel), seemingly it’s a meaningless act of disruption to a family of birds. That seems to undermine the inherent meaning behind the mitzvah, and therefore it shouldn’t apply in that case. However, the Chasam Sofer concludes that the halacha isn’t determined by the reason behind the mitzvah (אין דורשין טעמא דקרא). Most Achronim rule that there isn’t a mitzvah if one isn’t interested in the eggs (see also Chiddushei HaRan to Chullin 139b). However, Minchas Asher loc. cit. rules that if the bird’s nest is on a person’s property and they want to remove the nest regardless, it wouldn’t hurt to first send away the mother bird. This is because there is at least a mitzvah in doing so, even if it’s not obligatory

[13] Berachos 5:3, see also Megillah 4:9

[14] Berachos 33b, cf. ad. loc. for another reason that is given

[15] loc. cit.

[16] See ad. loc. Chapter 26 for a question on this approach from Bereishis Rabbah 44:1 and his answer; cf. Ramban loc. cit. (discussed below) and Nefesh HaChaim Sha’ar Beis Chapter 4

[17] Tosafos Yom Tov to Berachos 5:3

[18] loc. cit.

[19] This is based on Bereishis Rabbah loc. cit.

[20] The Ramban specifically says that our mitzvah of sending away the mother bird doesn’t benefit Hashem in any way. The above explanation of what he means was heard from Rav Yitzchok Berkowitz

[21] For other explanations of the reason behind the mitzvah of sending away the mother bird, see Ibn Ezra, Chizkuni and Rashbam (their approach is similar to Ramban), Abarbanel, Seforno, Akeidas Yitzchak, and Rav Hirsch to Deuteronomy ad. loc.