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Chulin, 138

1) LEAVING "PE'AH" FROM WHEAT ON BEHALF OF TREES

QUESTION: The Gemara quotes the Mishnah in Pe'ah (3:5) that discusses a case in which the owner of a wheat field sells the trees in his field and keeps the field for himself. Rebbi Yehudah maintains that if the sale was conducted after the owner started to reap the wheat of the field, then the seller must leave Pe'ah on behalf of all of the trees in the field, even those that were sold.

RASHI (DH Aval and DH v'Hu) explains that the seller "leaves Pe'ah for the poor from the wheat that he harvests, and exempts all the trees" from Pe'ah. Rashi adds that when the owner sells *all* of the trees in his field "the Pe'ah left from the wheat does not exempt the trees from Pe'ah."

Rashi seems to understand that Pe'ah of one type of crop cannot exempt another type. His source is the Gemara's statement that from the time one begins "to reap" ("Liktzor") -- which refers to cutting *wheat* -- he is required to leave a separate Pe'ah for the *trees*.

However, the Mishnah in Pe'ah seems to contradict Rashi's words. The Mishnah there (2:5) teaches that when one sows the seeds of two different crops in his field and harvests them together, he must leave two separate groups of Pe'ah, one for each crop! (PRI CHADASH in MAYIM CHAYIM; RASHASH)

ANSWERS:

(a) The TOSFOS HA'ROSH explains that there is a difference between a field that is sown equally with two different crops, and a wheat field that happens to have a few trees growing in it. When there happen to be trees growing in a wheat field, one may leave Pe'ah from the main crop for both types of produce growing in the field. (See DERECH EMUNAH 3:89 of RAV CHAIM KANIEVSKY shlit'a.)

(b) The RASH (Pe'ah 3:5) understands the Mishnah in Pe'ah differently from Rashi. The Rash asks why one is obligated to leave Pe'ah for the *trees* from the time that he begins to harvest the *wheat*. Instead of proposing, as Rashi does, that Pe'ah may be left from wheat on behalf of trees, he suggests simply that once the owner of the field begins to harvest his wheat, the obligation to leave Pe'ah from the trees takes effect as well. Harvesting the main crop of the field is considered to be the beginning of the harvest for all of the crops of the field, even the secondary ones. (It is possible that this is also the intention of Rashi.)

QUESTION: The Mishnah (135a) states that when one sells some of the wool of his sheep and keeps some for himself, the seller is obligated to give Reishis ha'Gez (for all of the wool) to the Kohen. When he sells all of the wool, however, the buyer is obligated to give Reishis ha'Gez.

Rava explains the logic of this Halachah as follows. When one sells the wool of his sheep to his friend, the sale should actually remove from the seller the obligation to separate Reishis ha'Gez. This is because the seller is no longer the owner of the wool at the time that the wool is sheared from the sheep. However, the buyer also is not obligated, since the Torah only obligates one to give Reishis ha'Gez when he is the owner of the sheep. In this case, the buyer of the wool does not own the sheep. Therefore, since it would be wrong to remove the obligation of giving Reishis ha'Gez, we assume that the seller, at the time of the sale, does not have in mind to remove from himself the obligation of Reishis ha'Gez. Consequently, when he is left with his own wool, the buyer may say to him, "Since you did not specifically state that this wool is exempt from Reishis ha'Gez, you must have intended to give the Matnos Kehunah from the wool that remains with you."

When the seller sells all of his wool and keeps none for himself, the buyer must give Reishis ha'Gez from the wool, because we assume that even though the seller did not explicitly say so, he included the Kohen's share of wool in the sale.

The Gemara proves from the Halachah of Keivah that a person does not intentionally attempt to exempt himself from giving Matnos Kehunah. The Mishnah (132a) teaches that when one sells the innards (including the Keivah) of a cow, we assume that the seller did not intend to sell the Keivah, since he is obligated to give it to a Kohen. Only when one sells the innards by weight do we assume that he included the Keivah in the sale, and the buyer must give the Keivah to a Kohen (and be reimbursed for its value). We assume that the seller did not intend to steal the Matanos, and thus he must reimburse the buyer when the buyer gives the Keivah to a Kohen.

However, there seems to be a logical problem with Rava's explanation. If it is wrong to exempt oneself from an obligation to give Matnos Kehunah, and thus we assume that one does not intend to exempt himself, then how did the owner of the sheep sell the sheep in the first place? The obligation to give Reishis ha'Gez is removed at the time of the sale, as we explained. The reason why the seller must give the Matanos is because we assume that he had intention to give the Matanos from the wool that remains in his possession (or, when he sells all of his wool, to discount the price of the sale in the value of the Reishis ha'Gez that the buyer will have to give). Although this act is commendable, the fact is that the obligation to give Reishis ha'Gez was removed by selling the wool! (RIMON PERETZ)

ANSWER: The RIMON PERETZ writes that we see from the Gemara here that the problem with exempting oneself from the obligation to give Matnos Kehunah is not that one has caused a Mitzvah to be cancelled. Rather, the problem is that one is causing a loss to the Kohen. Accordingly, when the owner intends on reimbursing the Kohen by giving him the wool even without being obligated to do so, there is nothing wrong with this.

(This explanation, however, is problematic, because the Gemara's proof from the Halachah of Keivah is still difficult to understand. In the case of the Keivah, one who sells the Keivah with the innards is committing an outright act of Geneivah from the Kohanim. This is because the obligation to give the Keivah takes effect at the time of the Shechitah, and thus the seller was already obligated to give it before the sale. Accordingly, we must assume that he did not intend to include the Keivah in the sale (in order for the sale not to be an act of Geneivah from the Kohanim). In contrast, one who sells the wool of his animals while it is still attached to them is not committing an act of Geneivah (although he might be doing something improper), because the obligation does not start until the wool is sheared. Therefore, we cannot prove from the case of selling the innards of an animal (where one certainly does not include the Keivah in the sale) that when one sells some of the wool of his animals, he does not intend to include the Reishis ha'Gez in the sale.) (Mordechai Zvi Dicker)

138b

QUESTION: The Mishnah begins a new chapter discussing the laws of Shilu'ach ha'Ken. This Mishnah is the first occasion of the use of this term, "Shilu'ach ha'Ken," commonly translated as "the sending away of the mother bird." The Torah does not use this term.

However, the word "Ken" means the nest or its contents (the eggs or chicks), not the mother bird, as RASHI in Bava Metzia (102a), RABEINU YEHONASAN (Chulin 141b), and others write. However, the "Shilu'ach" -- sending away -- must be done to the mother bird, and not its nest or the contents of its nest.

Why, then, is the mitzvah referred to as "Shilu'ach ha'Ken," and not "Shilu'ach ha'Em"?

ANSWER: The Mefarshim on the Torah explain that "Shilu'ach ha'Kan" means "sending away the mother bird in order to permit taking the contents of the nest."

RAV CHAIM KANIEVSKY shlit'a, in response to a question of Rabbi Naftali Weinberger (author of SHALE'ACH TESHALACH on the laws and meanings of Shilu'ach ha'Ken), explained what the proper text of the blessing (said without the name of Hashem) is when performing the Mitzvah of Shilu'ach ha'Ken. It should be the terminology used by the Chachamaim -- "l'Shale'ach ha'Ken," and not, "l'Shale'ach Min ha'Ken."

OPINIONS: The Mishnah begins a new chapter discussing the laws of Shilu'ach ha'Ken. The Mishnah in Berachos (33b) teaches that one who says, "Hashem's mercy reaches the mother bird," must be silenced. The Gemara there explains (in its second reason) that this is because the Mitzvos are purely Gezeiros, "heavenly decrees upon us to fulfill," and they are not given to us as expressions of Hashem's mercy.

How can it be that there are no reasons behind the Mitzvos? Rebbi Shimon explicitly states (see Yevamos 23a and elsewhere) that all of the Mitzvos have reasons behind them! (See Insights to Berachos 33:3.)

While the RAMBAM in Moreh Nevuchim (3:26, 3:48) explains that this opinion indeed argues with Rebbi Shimon and maintains that there are no reasons for the Mitzvos, in the end of Hilchos Temurah the Rambam writes that although we are obligated to blindly perform Mitzvos that have no apparent reason, it is nevertheless praiseworthy to offer appropriate explanations for the Mitzvos.

However, the RASHBA (Teshuvos 1:94), in a response to someone who offered an explanation for the Mitzvah of Shilu'ach ha'Ken, writes that he is doubtful that anyone living in his generation is able to offer a valid reason for this Mitzvah, as it contains many hidden elements of the Torah. The Rashba concludes that during the times of the Beis ha'Mikdash, which served as a gathering place for prophets and scholars, the rationale for the Mitzvos was readily and reliably accessible. However, now that we are in exile, the gates of knowledge have been locked and thus all Mitzvos should be performed regardless of whether or not we have the ability to comprehend the reasons for them.

In a similar vein, the MAHARSHA in Berachos (33b) writes that although one may ponder the reasons behind the Mitzvah of Shilu'ach ha'Ken, during its actual performance he should have in mind that he is performing the mitzvah as one performs all other Chukim -- exclusively because it was commanded by Hashem. It is apparent that the Maharsha maintains that applying our own logic to Chukim may corrupt the manner in which the Mitzvah is performed. Support for the Maharsha's opinion can be found in the Gemara in Sanhedrin (21b) which states that Shlomo ha'Mamelech's justification for violating a Mitzvah in the Torah by marrying the daughter of Pharaoh was that he thought he understood the motivation behind the prohibition. This incident teaches us that we must use caution in applying our own logic in determining the reasons for the Mitzvos.

Following the Rambam's approach, a number of Rishonim and Acharonim suggest various reasons for the Mitzvah of Shilu'ach ha'Ken. (The following discussion is based on Rabbi Naftali Weinberger's book, SEFER SHALE'ACH TESHALACH, a comprehensive treatise covering the laws and meanings of the Mitzvah of Shilu'ach ha'Ken.)

(a) The RAMBAN (Devarim 22:6) explains that when the Gemara says that the reason behind the Mitzvah of sending away the mother bird is not in order to have mercy, it means that it is not Hashem's intent to have mercy *on the bird*. Rather, it is a "Gezeirah" (a decree upon *us*, for our benefit) in order to accustom us to be merciful and inculcate in us that trait. One who is accustomed to being cruel to beasts, becomes cruel by nature in general, even to people. This is also the approach of the SEFER HA'CHINUCH (#545), ME'IRI (Berachos 33b), IBN EZRA, CHIZKUNI, and others.

(b) RABEINU BACHYE (Devarim 22:7), the SEFER HA'CHINUCH, and the RALBAG explain that while the Torah permits the consumption and utilization of birds, nevertheless their complete extinction is prohibited. Permissibility to take the mother and her offspring simultaneously would be tantamount to the destruction of the nest, which consequently could be viewed as a step, albeit a small one, toward the destruction of the whole species. Therefore the Torah requires that the mother first be sent away and only then may her offspring be taken.

By observing the Mitzvos and doing the will of Hashem, Hashem will watch over us and protect us as well, granting us long life in this world and everlasting life in the world to come.

(c) The RAMBAM in Moreh Nevuchim compares the Mitzvah of Shilu'ach ha'Ken with the Isur of "Oso v'Es Beno" (Vayikra 22:28), which forbids slaughtering an animal and her offspring on the same day. The Rambam explains that both of these Mitzvos show that animals have feelings towards their young, and those feelings must be respected. Maternal compassion is not a logical emotion, but rather an inborn, instinctive one. Consequently, if the offspring is taken while the mother is present, the mother naturally will suffer pain and anguish. The Torah therefore instructs us to demonstrate compassion by first sending the mother away before taking the eggs, thereby sparing her the anguish of seeing her offspring being taken.

This explanation of the Rambam seems to contradict the Mishnah in Berachos that says that we silence one who says that Shilu'ach ha'Ken is done for reasons of compassion. The Rishonim and Acharonim explain that the Rambam understands the Mishnah to be prohibiting only saying the words, "Al Kan Tzipor Yagi'a Rachamecha," as a *prayer*, since doing so would appear as though this reason is the only one, while in fact there could be many others explanations for the Mitzvah. However, offering the rationale of compassion within the guidelines of analysis of the Mitzvah is surely permissible.

(d) One opinion in the Yerushalmi (quoted in KOL ELIYAHU #17; see Yerushalmi Berachos 5:3, "*Ad* Kan Tzipor...") asserts that the Mitzvah of Shilu'ach ha'Ken was not given as an expression of mercy for the mother bird, but, on the contrary, it was given as an act of cruelty! The mother bird certainly experiences pain when sent away from her hatchlings.

This is also the approach of the Zohar, as quoted by RABEINU BACHYE and TESHUVOS CHACHAM TZVI (#86). The Zohar says that when the mother bird cries for her hatchlings, it arouses Hashem's mercy for his own children, the Jewish people. (See the following Insight for an elucidation of the words of the Zohar.)

(e) The ABARBANEL explains that the Torah prohibits destroying objects that bear fruit. It is forbidden to cut down a fruit-bearing tree (Devarim 20:7). Nevertheless, it is permitted to eat the fruit of a tree. Similarly, one is permitted to consume a bird's offspring. However, one is required to avoid harming the source of the offspring -- the mother bird, and enable her to build another nest in which to produce additional offspring.

(f) The CHASAM SOFER (Chulin 139b) explains that according to the Rambam (Hilchos Shechitah 3:7) the reason for this Mitzvah is to ensure that a level of moral justice is maintained. When a mother bird stays behind to protect its young from a hunter, it is not morally condonable that it should suffer harm as a result. Therefore, the hunter is not allowed to take advantage of the mother's love for its young and capture the mother, but rather he must send it away.

Similarly, the AVNEI NEZER explains that the reason why human beings are permitted to kill animals is because Hashem created humans with intellect, making them superior to animals. However, in the case of a mother bird, we see a display of human-like emotions as it shows concern for its offspring as a human does. In this respect, therefore, humans are not superior to animals; permission to kill the animal animals is suspended when the animal displays human intellect. That is why a person must send the bird away.

(g) Although many Rishonim and Acharonim offer various explanations for the Mitzvah, they nevertheless concede that Shilu'ach ha'Ken, like all other Mitzvos, incorporates many hidden parts of the Torah, thereby rendering a comprehensive understanding of it impossible. For example, the BA'AL HA'AKEIDAH and Abarbanel both mention that the mother bird symbolizes the human soul.

The Ramban (loc. cit.) quotes the SEFER HAKANAH (a very early work discussing the concept of hidden aspects of Torah, written by the Tana, Rebbi Nechunya ben Hakanah), which also states that many secrets of the Torah are incorporated in this Mitzvah. He writes, for example, that even the Mitzvah of Sukah is inherent in the Mitzvah of Shilu'ach ha'Ken. Rebbi Nechunya ben Hakanah writes that since the reward attributed to this Mitzvah is so great, it must be that the performance of Shilu'ach ha'Ken touches upon many other Mitzvos as well.

QUESTION: The Rishonim and Acharonim suggest a number of reasons for the Mitzvah of Shilu'ach ha'Ken (as we discussed in the previous Insight). The Zohar (cited by RABEINU BACHYE to Devarim 22:7 and TESHUVOS CHACHAM TZVI #86) says that the act is done as an expression of *cruelty*, in order to arouse Hashem's mercy for His people. In what way does this act arouse Hashem's mercy?

ANSWER: RABBI NAFTALI WEINBERGER, in SEFER SHALE'ACH TESHALACH, elucidates the words of the Zohar. He writes as follows.

The Zohar states (loosely translated), "When a person sends the mother from her nest, the mother is so grief stricken that she wants to drown herself in the ocean. During her flight, she yearns to be with her children again. She cries so hard that the angel designated by Hashem to represent the birds asks Hashem: Does it not say that 'His compassion is on all of His creations (Tehilim 145:9)'? Why did you command man to send the mother away from her nest?

"Upon hearing the angel's supplication, Hashem gathers all of the other angels and addresses them as follows: This angel is concerned for the welfare of a bird and is complaining of its suffering. Why are you not also complaining about the suffering of My chosen nation, the Jewish people? Why are you not distressed by the fact that the Shechinah, which had its place of dwelling in the Beis ha'Mikdash, has also been sent away and exiled from its place? And why are you not petitioning Me, as is the bird's angel, on behalf of My children, the Jewish people, who are being neglected and abused by the pagan nations?

"Hashem then directs his compassion towards Klal Yisrael and immediately decrees beneficial experiences for his nation, especially for the downtrodden and poor. He then forgives his children for many of their sins and iniquities.

"Hashem then proclaims to His heavenly gathering: 'Praiseworthy is the person who fulfills the Mitzvah of Shilu'ach ha'Ken, for he causes kindness to descend upon the world.' As the benefactors of Hashem's compassion, the Jewish nation renews its yearning for the redemption and thus hastens the arrival of Mashi'ach."

(Based on the words of the Zohar, the CHAVOS YA'IR writes that since the performance of Shilu'ach ha'Ken causes a profound kindness to descend upon the world and hastens the coming of Mashi'ach, when a person sees a nest he is *obligated* to send the mother away even if he has no need for the offspring; see Insights to Chulin 139b.)

The VILNA GA'ON (in his commentary to Mishlei 30:17, and in Imrei No'am to Berachos 33b) discusses the Zohar at length. He concurs with the Zohar that there is no Mitzvah in the entire Torah that seems to comprise an act as heartless as that of Shilu'ach ha'Ken, and yet the Torah bestows upon the one who performs this Mitzvah the blessing of a good, long life! The Vilna Ga'on points out that a reward of long life is promised in only two instances: Kibud Av va'Em, and Shilu'ach ha'Ken. The Vilna Ga'on asks why these two Mitzvos have the identical reward, when they seem to involve opposite traits. Honoring parents is an act of true kindness and love, while Shilu'ach ha'Ken is an act seemingly void of any compassion! Why should these two Mitzvos warrant the same reward?

The Vilna Ga'on explains that, in fact, these two Mitzvos complement each other, because they address the character trait that can be found in different types of people. There are people who are instinctively inclined to perform kindness, for whom honoring parents is a natural instinct. Those people would likely find it difficult to perform an act that seems so cruel, like Shilu'ach ha'Ken. Conversely, there are people who do not naturally possess the characteristic of kindness. For them, the Mitzvah of Kibud Av va'Em may be difficult to perform, while they may perform Shilu'ach ha'Ken without hesitation. Since the Mitzvos were given equally to all men, regardless of their individual dispositions, the Torah promises the same reward for the Mitzvos of Kibud Av va'Em and Shilu'ach ha'Ken. The Torah is teaching us that our performance of the Mitzvos should not be based on our personal feelings toward the Mitzvah, but rather on the fact that Hashem commanded us to do it. We are rewarded for obeying Hashem, and not for acting in accordance with our logic and personal inclinations. Accordingly, we can understand why the Mitzvah of Kibud Av va'Em and Shilu'ach ha'Ken have the same reward. They share a common purpose: to demonstrate a steadfast adherence to carrying out the will of Hashem.

The Vilna Ga'on uses this principle to shed light on a difficult verse. After the Akeidas Yitzchak, Hashem tells Avraham Avinu, "For now I know that you are G-d-fearing" (Bereishis 22:12). The Akeidas Yitzchak was the last of the ten trials with which Hashem tested Avraham's faith. The words, "Now I know," imply that prior to the Akeidah, Avraham had not proven himself to be G-d-fearing. Why, though, is it that only after the Akeidah that Hashem becomes convinced that Avraham is G-d-fearing? Were the first nine trials not indicative of Avraham's Yir'as Shamayim?

The Vilna Ga'on explains that Avraham was the quintessential Ba'al Chesed. He was innately loving and compassionate to all people, as evidenced by the way he honored his guests with his fulfillment of the Mitzvah of Hachnasas Orchim. Hashem designed the last of the trials to be the ultimate test of Avraham's Yir'as Shamayim; it would be a test that would directly oppose Avraham's essence. He commanded Avraham to commit the supreme act of heartlessness and cruelty -- to sacrifice his only son. Without hesitation, Avraham Avinu proceeded to carry out the will of Hashem in an act that contradicted the fundamental nature of his being. It was at that moment that Hashem saw that Avraham was a true Yerei Elokim, as Avraham proved that his fulfillment of Hashem's will was not predicated on his own natural inclinations but rather on his absolute adherence to the word of Hashem.

The Vilna Ga'on explains that according to the Zohar, when the Mishnah in Berachos (33b) requires us to silence one who says that Shilu'ach ha'Ken is done for reasons of compassion, it means that we silence him because he is mistaken; the act of sending the mother away in fact causes anguish and pain. We are commanded to perform this Mitzvah in order to elicit Hashem's compassion. (See also YE'AROS DEVASH, Derash 6, where RAV YONASAN EIBSHITZ explains the reasons for many Halachos based on the Zohar.)

QUESTION: The Gemara teaches that there is no Mitzvah to send away a mother bird that must be given to someone specific, such as a bird of Hekdesh that must be given to the treasurer of Hekdesh. Ravina adds that, similarly, there is no obligation to send away a Kosher bird that killed a person, since the bird must be brought to Beis Din. RASHI (DH she'Harag) explains that Ravina is referring to a case in which the bird fled to the wild ("Marad") after the killing.

There are two problems with the words of Rashi.

(a) Rashi implies that the bird was a privately-owned bird when it killed, and then it ran away to the wild. Why does Rashi not explain simply that Ravina is discussing a bird of the wild that killed a person? It is not necessary to explain that a domestic bird killed a person and then fled to the wild. We know that even a wild animal that killed a person must be put to death, as the RAMBAM (Hilchos Nizkei Mamon 10:6) writes! (MINCHAS CHINUCH #545)

(b) If the bird that killed was privately-owned and later ran away to the wild, why does the Gemara later (139a) struggle to find a case of a bird of Hekdesh that is exempt from Shilu'ach ha'Ken? The Gemara should answer simply that the bird belonged to Hekdesh and then fled to the wild!

ANSWERS:

(a) Rashi here is following the opinion of Rebbi Yehudah (and the Stam Mishnah) in Bava Kama (44b), who maintains that an animal that has no owner is *not* put to death by Beis Din for killing a person. The Rambam is rules according to the Rabanan, who argue with Rebbi Yehudah (Bava Kama 44b).

(b) Since Hekdesh is a form of ownership, the Gemara assumed that an animal of Hekdesh that runs away becomes free of the ownership of Hekdesh (as Rav indeed asserts at the conclusion of the Sugya). It cannot be compared to an animal that killed, because such an animal must be put to death even if it later becomes ownerless.