THOUGHTS ON THE DAILY DAF
brought to you by Kollel Iyun Hadaf of Har Nof
Rosh Kollel: Rav Mordecai Kornfeld
Ask A Question about the Daf
CHULIN 137-140 - Ari Kornfeld has generously sponsored the Dafyomi
publications for these Dapim for the benefit of Klal Yisrael.
1) SENDING AWAY A BIRD THAT IS "ASUR B'HANA'AH"
QUESTION: The Gemara asks that we find that the word "Tzipor" can refer to
a Tamei (non-Kosher) bird. The verse says that for the Taharah of a
Metzora, one must use "Shtei Tziporim Chayos Tehoros" -- "two living,
Tahor birds" (Vayikra 14:4). The fact that the verse says "Tehoros"
implies that the word "Tzipor" can refer to a Tamei bird, for, otherwise,
the verse would not have to specify "Tehoros"! Rav Nachman bar Yitzchak
answers that, indeed, the word "Tehoros" is not excluding a Tzipor that is
Tamei, because the word "Tzipor" itself teaches us that the bird must be
Tahor. Rather, the verse is excluding birds from an Ir ha'Nidachas.
The Gemara asks that the Torah does not need to tell us that the bird that
is sent away (as part of the Taharah process of the Metzora) cannot be
from an Ir ha'Nidachas, because such a bird is Asur b'Hana'ah. It is
obvious that the Torah is not telling us to send away a bird that might
cause a Jew to sin (someone might find the bird and eat it)!
Why, though, should it be prohibited to send away a bird that is
forbidden? The majority of birds in the world are permitted, and thus in a
case of doubt we follow the Rov (majority) according to Torah law. The
person who finds the released bird may eat the bird based on the principle
of Rov! (See also Insights to Chulin 115:1.)
(a) The CHIDUSHEI CHASAM SOFER (Chulin 115a) answers that even though it
is permitted for the finder to take the bird (because of the principle of
Rov), nevertheless it is forbidden l'Chatchilah to send away such a bird.
The Chasam Sofer cites TOSFOS (95a, DH uve'Nimtza) who writes that an item
of clothing that contains Sha'atnez may not be sold to a Nochri, because
he might resell it to a Jew. Even though the principle of Rov should
permit selling it to a Nochri, because, in the majority of cases, it will
not be resold to a Jew, nevertheless one is not permitted l'Chatchilah to
put a forbidden item into the world and then rely on the principle of Rov
to permit it. The Chasam Sofer asserts that such an act is prohibited
(b) RAV ELCHANAN WASSERMAN zt'l in KOVETZ SHEMO'US (printed in Kovetz
Shi'urim, vol. 2, #55) answers based on the Yerushalmi cited by the RASH
(in Orlah). The Yerushalmi teaches that, in general, Bitul is effective
only after it is known that there is an Isur in the mixture, but it is not
known where the Isur is. Before it is known that an Isur is present, the
Torah does not say that the majority of permitted items annuls the Isur.
The reason for this, as explained in KOVETZ HE'OROS (Yevamos 58:2), is
that the Torah permits a mixture that contains a majority of Heter because
of the doubt that exists. However, when there is no doubt (because it is
not known to the person who found the bird that there was a forbidden bird
flying around somewhere), the Torah does not say that we follow the
majority, and thus the bird remains forbidden.
(c) According to the view of the RA'AVAD, this question is not a question
at all. The Ra'avad (in ISUR MASHEHU, chapter 2, as cited by the BEIS
YOSEF YD 99) maintains that it is Asur mid'Oraisa to cause an Isur to
Moreover, the NODA B'YEHUDAH (YD 2:45) maintains that all opinions, even
those that argue with the Ra'avad, agree that it is Asur mid'Oraisa to be
Mevatel a solid item in a mixture of other solid items (Yavesh b'Yavesh).
Similarly, the ARUCH HA'SHULCHAN (YD 99:27) rules that it is forbidden
mid'Oraisa to be Mevatel an object of Isur that is recognizable (and is
not mixed with other objects such that it is unidentifiable).
(d) RAV SHIMON SHKOP in SHA'AREI YOSHER (3:6) explains that the person who
finds the bird certainly may eat it, but not because of "Bitul b'Rov."
Rather, one who finds it and eats it does not transgress an Isur, because
of the principle of "Halech Achar ha'Rov" ("follow the Rov," or "Kol
d'Parish m'Ruba Parish"), which is different from "Bitul b'Rov."
Here, there is no Bitul b'Rov -- the forbidden bird does not become
"Batel" in a majority of permitted birds, because there is no actual
mixture here; the forbidden bird did not "fall" into a "mixture" of
permitted birds gathered in one place. Since there is no Bitul b'Rov, the
bird does not become inherently permitted. Rather, the person who finds
the bird is allowed to eat it because of the principle of "Halech Achar
ha'Rov," which teaches that in a case of doubt one may assume that the
bird is from the majority of birds. This rule does not tell us that a
forbidden bird loses its status of Isur.
Accordingly, the one who sends the bird away *knowing* that it is Asur
b'Hana'ah is causing a stumbling block to exist in the world, since
another person may eat it assuming that it is from the majority of
permitted birds. Therefore, it is forbidden for him to send it away. (See
YOSEF DA'AS to Chulin 115a.)
2) TWO ROWS OF EGGS IN A NEST
QUESTION: Rebbi Yirmeyah asks what the Halachah is in a case in which
there are two rows of eggs in a nest, one on top of the other. Must one
send away the mother bird in order to take the bottom row of eggs, or is
the upper row of eggs considered a separation between the mother bird and
the lower eggs, and thus one may take the bottom row of eggs without
sending away the mother bird? The Gemara leaves this question unresolved
3) A "KOREI" SITTING ON THE NEST OF ANOTHER BIRD
What exactly is the case of Rebbi Yirmeyah's question? If the mother bird
is sitting on two rows of eggs and hatching both of them, presumably her
body extends over all of the eggs. Consequently, when one removes an egg
from the bottom row and tries to lift it, he must move it to directly
underneath the mother bird! How can he continue to remove it from its
place without transgressing the Mitzvah of Shilu'ach ha'Ken?
(a) RASHI (DH Mahu she'Yachotzu) implies that the case in question is
where the person is taking *both* rows out from under the mother bird at
the same time. In this manner, the bottom row never passes directly below
the mother bird. (This is implicit in the words of Rashi, who says that
the person "has intention to take the lower eggs," and does not say simply
that the person "takes the lower eggs." This implies that he actually
takes both rows, but he *intends* only to take the lower row.)
Why, though, does he not transgress the Mitzvah when he takes the *top*
row from directly underneath the mother? Rashi says that he intends only
to take the lower row (for instance, he takes them with the intention of
returning the upper row to its place, as the Gemara later (141a)
discusses), and thus when he takes the upper row from beneath the bird, he
does not transgress the Mitzvah of Shilu'ach ha'Ken.
(b) TOSFOS (DH Shnei) explains that the case in question is where the
person is taking only the bottom row of eggs. How, though, does he take
them without them passing directly beneath the mother bird? Perhaps Tosfos
means that when the top row of eggs serves as a separation between the
bottom row of eggs and the mother bird, the person certainly must send
away the mother bird he brings forth the bottom eggs from under the top
ones. Rebbi Yirmeyah's question is whether one must send away the mother
bird before he *begins* to take away the bottom eggs.
(c) The RASHBA explains that in the Gemara's case, the upper row of the
"two rows of eggs" is not a natural layer of eggs. If both rows were
natural layers of eggs, then indeed it would be prohibited to take *any*
of the bird's eggs, including the ones on the bottom. Rather, the upper
row is comprised of non-Kosher eggs placed there by a non-Kosher bird, or,
alternatively, it is comprised of inedible eggs ("Muzaros") which the
person intentionally placed above the bottom row of eggs in an attempt to
avoid the obligation of Shilu'ach ha'Ken by creating a separation between
the bird and its eggs.
(There appear to be a number of printing errors in our editions of the
Rashba. Instead of "*Lo Elyonim* *ve'Lo* Tachtonim," it should read
"*Elyonim* *Ela* Tachtonim." Instead of "Mezumanim," it should read
"Muzaros.") (M. Kornfeld)
QUESTION: In the Mishnah (138b), Rebbi Eliezer and the Chachamim argue
whether or not one is obligated to send away a male Korei (sitting on the
eggs of another bird). In the Gemara, Rebbi Elazar says that both agree
that when a female Korei is sitting on the eggs of another species, one
*is* obligated to send away the Korei in order to take the other bird's
4) A MOTHER BIRD SITTING IN THE BRANCHES ABOVE ITS NEST
The Gemara continues and quotes another statement of Rebbi Elazar in which
he says that Rebbi Eliezer and the Chachamim agree that there is *no*
obligation to send away any other type of male bird (other than a Korei)
from its young.
It seems that the two statements of Rebbi Elazar are both true and are not
mutually exclusive. Rebbi Eliezer argues with the Chachamim only in the
case of a male Korei sitting on another bird's eggs. They agree that a
female Korei sitting on another bird's nest must be sent away (first
statement), and that any other male bird (besides a Korei) does not need
to be sent away (second statement).
RASHI (DH u'Vak'ah) explains Rebbi Eliezer's reasoning for obligating one
to send away a male Korei bird. He explains that Rebbi Eliezer learns this
from a Gezeirah Shavah. Just as the verse in Yeshayah (34:15), which uses
the word "Dagrah" with reference to ordinary birds, is discussing birds
that roost properly, "b'Mino" (on young of their own type), so, too, when
the verse in Yirmeyahu (17:11) mentions the roosting of the Korei using
the word "Dagar," it means to say that the roosting of the Korei is a
proper way of roosting. Even though the Korei does not roost on its own
young, since its normal manner is to roost on the young of other birds it
must be sent away when one wants to take the eggs.
The inference from the words of Rashi is that the Chachamim do not accept
this "Gezeirah Shavah" and maintain that since the Korei does not roost on
its own eggs, there is no obligation of Shilu'ach ha'Ken, regardless of
whether this is the normal way that it roosts.
Rashi's words are difficult to understand. Why does Rashi explain that the
argument between Rebbi Eliezer and the Chachamim is whether or not the
Korei's manner of sitting on other bird's eggs obligates it to be sent
away? Rebbi Elazar teaches clearly that the Chachamim *agree* with Rebbi
Eliezer that a bird which normally sits on other birds' eggs must be sent
away; it is for this reason that they maintain that a *female* Korei must
be sent away prior to taking its eggs. The Chachamim seem to argue with
Rebbi Eliezer over another point. They maintain that the Torah (Devarim
22:6) only requires that a *mother* bird be sent away, and not a father
(a) The RASHASH answers that Rashi seems to be following the view of the
The RIF records only the second statement of Rebbi Elazar, and omits the
first. He writes that Rebbi Eliezer and the Chachamim argue only about a
male Korei, but they agree that any other male bird does not need to be
sent away. Why does the Rif omit the first statement of Rebbi Elazar?
Moreover, there seems to be no reason for the Rif to quote the second
statement at all. The second statement of Rebbi Elazar is relevant only if
we rule like Rebbi Eliezer, since it is only limiting the ruling of Rebbi
Eliezer and is not pertinent to the ruling of the Chachamim. We know even
without Rebbi Elazar's second statement that the Chachamim do not require
any male birds to be sent away! However, the Halachah follows the
Chachamim. It would have been much more logical for the Rif to quote the
only first statement of Rebbi Elazar, because that statement teaches us a
Halachah according to the *Chachamim* (i.e. that a female Korei needs to
be sent away)!
The ROSH (12:2) explains that the Rif has a different understanding of the
Gemara. The Rif learns that the two statements of Rebbi Elazar argue with
each other. (The Rosh points out that in the Rif's text of the Gemara, the
words "Ika d'Amrei" must have preceded the second statement of Rebbi
Eliezer.) The Rif understands from the fact that the Gemara records a
second version of Rebbi Elazar's statement, and proceeds to bring proof to
that version from a Beraisa, that the second version must be arguing with
the first. With regard to what are the two versions arguing?
The first version of Rebbi Elazar's statement is saying that the argument
in the Mishnah applies to all male birds; Rebbi Eliezer maintains that all
male birds must be sent away from their young, while the Chachamim
maintain that no male birds need to be sent away, even the Korei. The
argument is expressed with regard to a male *Korei* (and not with regard
to all male birds) in order to show that the Chachamim agree that a female
Korei must be sent away (even when it roosts on the eggs of other birds).
The second version is saying that the argument in the Mishnah applies to
Korei birds that roost on the eggs of others. Rebbi Eliezer maintains that
one must send away any Korei bird (male or female) that roosts on the eggs
of another bird, while the Chachamim maintain that no bird that roosts on
the eggs of others is sent away. The argument is expressed with regard to
a *male* Korei (and not to all types of Korei) in order to show that Rebbi
Eliezer agrees that all other male birds do not need to be sent away.
Accordingly, since the Halachah follows the second version, and we rule
like the Chachamim, there is no Mitzvah to send away any bird that is
sitting on the eggs of another bird. No bird -- male, female, or Korei --
is sent away when it is sitting on the eggs of another bird.
This is also the ruling of the RAMBAM (Hilchos Shechitah 13:10).
The Rashash writes that Rashi -- who implies that the reason why the
Chachamim do not require sending away a male Korei bird is because it is
not sitting on its own eggs (and not because it is not a "mother" bird) --
is following the view of the Rif. Rashi maintains that such a bird does
not need to be sent away, whether it is male or female, since it is not
sitting on its own eggs. (See also Rashi 140a DH Rebbi Eliezer Mechayev.)
(b) Perhaps Rashi's words are meant to be read differently. The Rashash
reads Rashi's words as saying, "Just as there (in the verse in Yeshayah),
it is a proper roosting, *because* the verse is discussing [eggs of] its
own type, so, too, here (in the verse in Yirmeyahu, regarding the Korei)
it is discussing a proper roosting." However, perhaps Rashi's words are
meant to be read as follows (pausing *after* the word "d'b'Mino," and not
before it): "Just as there (in the verse in Yeshayah), it is the proper
form of roosting *for* this type [of bird] that is being discussed in the
verse, so, too, here (in the verse in Yirmeyahu, regarding the male
Korei), it is discussing what is considered to be a proper roosting [for
this type of bird]." Rashi means that the male Korei has the status of a
mother bird for Shilu'ach ha'Ken since it normally sits on eggs like a
mother bird; Rashi is not saying anything about whether it sits on its own
eggs or on the eggs of others! (M. Kornfeld)
QUESTIONS: Rav Yehudah says in the name of Rav that when a mother bird is
sitting on two branches stretching over the nest, the obligation to send
the mother bird away depends on whether she is directly over the nest
(that is, if the branches would be removed, she would fall into the nest),
or whether she is not directly over the nest (if the branches would be
removed, she would not fall into the nest).
There are two questions with this Gemara.
First, Rav Yehudah is saying that the only criterion for the obligation of
Shilu'ach ha'Ken in this case is that the mother, if she would fall, would
land on the eggs. This seems to imply that the obligation of Shilu'ach
ha'Ken applies even when the mother bird is far above the nest; as long as
she is directly above it, the obligation to send her away applies. How,
though, can this be considered "Rovetzes" -- "crouching on the young"
Second, what is Rav Yehudah teaching in the second part of his statement
when he says that if the mother bird would not fall into the nest when the
branches are removed, then one is not obligated to send her away? This is
obvious! Even if the mother bird is not sitting above the nest on
branches, but rather she is right next to the eggs (and she is even
touching them), the Mitzvah does not apply until she is over the nest!
(a) The CHIDUSHIM U'VI'URIM answers the first question by saying that Rav
Yehudah means that the Mitzvah applies only when the mother bird is so
close to the nest that she provides warmth to the eggs or chicks. When she
is so high that she does not provide warmth, this is not considered
"Rovetzes" and the Mitzvah does not apply, even if she will fall into the
nest if the branches are removed.
The Chidushim u'Vi'urim answers the second question by saying that Rav
Yehudah's second statement is teaching that the Mitzvah does not apply
even when the *wings* of the mother bird are outstretched over the
branches above the nest. If the branches would not be there, the wings
would be directly above the eggs, and the Mitzvah would apply. The reason
why the Mitzvah does not apply is because the branches are a separation
between the wings and the nest. Rav Yehudah is teaching that even though
the wings of the mother are above the eggs, since the branches separate
between them and the nest (and the bird would not fall into the nest if
the branches were removed), the Mitzvah does not apply.
This answer, however, is problematic, because the Gemara earlier already
discusses the question of an intervening object between the bird and the
eggs. The Gemara earlier leaves the question unanswered. Why, then is it
so clear to Rav Yehudah that in such a case the Mitzvah does not apply?
(b) Perhaps we may answer both questions as follows. The reason why the
Mitzvah of Shilu'ach ha'Ken applies when the mother bird is sitting on two
branches directly over the nest is because the branches are considered to
be an extension of the walls of the nest. When a nest has walls that
extend above the eggs, one is obligated to send away the mother bird even
when she is sitting on the wall. This is considered "Rovetzes Al
ha'Efrochim," since it is the normal way for a bird to sit on her nest.
According to this understanding of Rav Yehudah's statement, the Mitzvah
applies only when the branches actually reach the best, because only then
can we consider them to be part of the nest.
Regarding the second question, we may suggest that there is a significant
difference between a mother bird sitting alongside the nest (in which case
the Mitzvah to send it away certainly does not apply), and a mother bird
sitting on top of branches touching the nest but not directly above it. In
the former case, the bird is not over the nest at all, and therefore one
is exempt. In the latter case (the case that Rav Yehudah is discussing),
in which the bird is sitting on what is considered to be part of the nest,
we might have thought that the Mitzvah to send her away indeed applies.
Rav Yehudah teaches, therefore, that not only must be mother bird be
sitting on the nest (or part of the nest), she also must be directly above
the eggs in order for the Mitzvah to apply. (Mordechai Zvi Dicker)