5-5768: Mitzvah 74

Talmidav Shel Aharon
5-5768: Mitzvah 74
November 19, 2007

Mitzvah 74 – It is a positive commandment of “sending away from the nest.”
Hafetz Hayim: Which means that if someone finds a bird’s nest on the way, with the mother-bird sitting on the fledglings or on the eggs, and he wishes to take them, he as to send away the mother-bird first and take them afterward; for Scripture says, “you shall surely send the dam away” (Deut. 22:7) and afterward, “and the young you may take for yourself.” (Ibid) The way to send it off is by taking hold of its wings and making it fly. If one sent it away and it returned, even many times, he is yet obligated to send it off. If it was flying about, if its wings touched the nest, he would have the duty to send it away; and if not, he would be free of any obligation to send it off. The requirement of “sending away from the nest” applies only to a pure (kosher) fowl, and one which is not prepared (not in his possession – which means that a person finds it on the way in some tree or on the ground); and specifically with fledglings which do not fly as yet and need their mother-bird, or with eggs that are not infertile and rotting. If a person transgresses and takes the mother-bird with the young, he is to fulfill the positive commandment and send the dam off. If he ritually slew the mother-bird or it died before he sent it off, so that he can no longer fulfill the positive commandment, he has thus violated a negative commandment. So likewise if someone came along and seized the mother-bird from his hand and sent it away, or it fled out of his hand without his knowledge (against his wish)- he is to receive whiplashes for violating the negative commandment, since he plainly did not observe the positive commandment. If he took the mother-bird and clipped its wings so that it could not fly and then he sent it off, he should be given whiplashes for disobedience, and he is to keep it with him until its wings grow back, and then he is to send it away. It applies everywhere and in every time for both men and women.

The Torah is very clear on this law. That is why the Hafetz Hayim is so direct about it. It is one of the few laws in the Torah that have a reward for observance. The Torah insists that one who sends the mother-bird away will live a long life.
This is one of a series of laws that are part of the rules concerning “Tzar Baalei Hayyim” “Pain given to animals”. The Torah understands that if we are cruel to animals, than it becomes easier to be cruel to each other. A mother-bird will defend her eggs and fledglings, a sign that she has “maternal” concerns for her offspring. It would be cruel not to push the mother aside and take her eggs. It would be cruel to the mother bird, and an act of cruelty on out part if we fail in this task. If we can be so cruel to another animal, it is only fitting that such a person receives lashes for his or her insensitivity. Perhaps the pain suffered by lashes will help instill a kind of concern for the pain he or she causes others, human and animal. As an act of kindness to animals, we send away the mother-bird, we don’t cook a baby animal in its mother’s milk and we don’t yoke an ox with a donkey when plowing since the stronger one will have to drag along the weaker animal. We don’t even allow the muzzling of an ox on the threshing floor since to be working with the grain and not allowed to eat it would also be cruel to the ox. We have to be sensitive to the needs of our animals like we would want to be sensitive to the needs of those humans who work for us.
I would be remiss if I did not mention the way this law of the mother-bird was used for a larger problem in Jewish Law. The reward for sending the dam away is that you receive long life. The story is that Rabbi Elisha ben Abulya was walking one day and saw a man holding a ladder by a tree. His son was on the ladder reaching for a bird’s nest. The father said, “Remember to send the mother bird away” and the Rabbi noted that this child would live a long time since he was obeying two commandments that have the same reward, Sending the mother bird away, and honoring parents both have the reward of long life. The boy sent the mother bird away, and then, tragically, he lost his footing, fell from the tree and died. It is said that this was the cause that caused Rabbi Elisha ben Abulya to become an apostate. G-d had not fulfilled the reward and suddenly the Rabbi could no longer believe in G-d. If G-d could not be relied upon to fulfill the reward, then “There is no Judge and there is no Justice” thus Elisha abandoned his faith. (There is a classic book on this issue, “As a Driven Leaf” by Milton Steinberg. This moment is the center of the book and it deals with the issues of G-d in the world and our experience of G-d. It is one of my favorite books of all time)
The issue has not gone away after all these years. Why bad things happen to good people is one of the realities of our world and it insures that our faith is always subject to question and debate. Can we believe in G-d in spite of the injustice of this world? If not, how is faith possible? If we can, how can we explain the injustice? Abraham’s demand that “The Judge of the world act justly” is a cornerstone of Judaism. Without it all of Jewish Law is impossible. There are many answers that have been come forth over the centuries. If we are to be secure in our faith, we will need to find an answer for ourselves lest we slide into heresy, as did Elisha. The stakes are very high, and we will need to be honest and considered in our answers. I don’t have an answer for you; Judaism demands that you study to find the answer that works best for you.