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Chulin, 139

1) A BIRD OF "HEKDESH" THAT FLEES TO THE WILD ("SHE'MARDU")

QUESTION: The Gemara discusses how it is possible to have a case of a bird that is Hekdesh and yet it is possible to perform Shilu'ach ha'Ken with that bird (such that the verse needs to teach that it is exempt). Rav explains that when a privately-owned bird that was sanctified as Hekdesh (with Kedushas ha'Guf, to be offered as Korbanos) flees to the wild, it retains its Kedushah even though it is now considered Hefker, and thus we need a special verse to teach that it is exempt from Shilu'ach ha'Ken. Shmuel explains that the case is when one was Makdish his chicken for Bedek ha'Bayis and it fled. The Gemara says that Rav does not explain as Shmuel does, because a bird sanctified with Kedushas Damim (for Bedek ha'Bayis) loses its Kedushah when it flees, and Shilu'ach ha'Ken would apply to it.

How does a bird lose its Kedushas Damim by flying away, and why does a bird with Kedushas ha'Guf not lose its Kedushah?

ANSWER: TOSFOS (DH Keivan) explains that ordinary geese and chickens that run away from their owners become Hefker, since their owners give up hope of retrieving them ("Yi'ush"). Consequently, whoever finds them may keep them. (Such birds are in the same category as objects that were washed away by an overflowing river; see Bava Metzia 27a. Even if the owners say that they still have hope of retrieving their objects, we do not accept their argument and the objects become Hefker.) Similarly, birds of Hekdesh that flee become Hefker and lose their Kedushas Damim. (The RASHBA adds that when dealing with objects that have Kedushas Damim, the Yi'ush of the treasurer of the Beis ha'Mikdash will cause the objects to lose their Kedushah.)

Since such birds are Kadosh only with Kedushas Damim, only their value is Kadosh, and not the actual birds themselves. Hence, when they became ownerless, their value can no longer be Kadosh. In contrast, birds that are Kadosh with Kedushas ha'Guf are intrinsically Kadosh and remain so even when they are ownerless.

QUESTION: The Gemara says that Rebbi Yochanan and Reish Lakish argue in a case in which one designates a Manah as Hekdesh for Bedek ha'Bayis, and the Manah is lost or stolen. Rebbi Yochanan maintains that he is obligated to replace the Manah. Reish Lakish says that he is not obligated to replace the Manah, because it remains in the domain of Hekfesh wherever it is.

The Gemara explains that Rebbi Yochanan maintains that he must replace the Manah only when he accepted upon himself ("Alai") to give a Manah to Hekdesh. When he does not specify a specific Manah as being upon him to give to Hekdesh (but he says merely that "this Manah is for Bedek ha'Bayis"), he has no responsibility to replace it if it becomes lost or stolen. The Gemara explains that Reish Lakish argues that saying "Alai" makes a person responsible for the object if it is lost or stolen only when one makes a Neder to give a Korban that will be offered on the Mizbe'ach, but not when one makes a Neder to give something to Bedek ha'Bayis.

We see from the Gemara here that a pledge to give something to Bedek ha'Bayis does not include a pledge to bring it to the Beis ha'Mikdash. Rather, he is required only to make sure that the money is in the "treasury of Hekdesh," and it is in the "treasury of Hekdesh" wherever it is, even after it is lost or stolen, according to Reish Lakish.

RASHI (DH d'Michsar) explains that when one says "Alai" with regard to a Korban, he is accepting upon himself the responsibility to ensure that the object is brought to the Beis ha'Mikdash. When one says "Alai" with regard to Bedek ha'Bayis, his responsibility ends when he separates the object and sets it aside. Even though he has not brought it to the Beis ha'Mikdash, it is considered to be in the possession of Hekdesh wherever it is.

The TUREI EVEN in Rosh Hashanah (6a) asks a strong question on the Gemara and Rashi here. The Gemara in Rosh Hashanah discusses the obligation of one who makes a Neder to Hekdesh and delays fulfilling his Neder, thereby transgressing the Isur of "Bal Te'acher." The Gemara teaches that one transgresses the Isur of Bal Te'acher in one of two ways. The first way is when one said that he would bring a Korban but he delayed in designating an animal. The second way is when one designated an animal but delayed in bringing it.

These two ways are clearly applicable to one who makes a Neder to bring a Korban, since such a Neder always includes two parts -- designated an animal, and bringing it to the Beis ha'Mikdash. However, these two ways do not seem to apply to a Neder for Bedek ha'Bayis. Such a Neder obligates a person only to designate the object, but not to bring it to the Beis ha'Mikdash. Why, then, does a person transgress the Isur of Bal Te'acher when he delays bringing to the money that he designated?

ANSWERS:

(a) The TUREI EVEN answers that for Hekdesh of Bedek ha'Bayis, the two forms of Bal Te'acher exist only with regard to pledges of Erchin. The Gemara here (beginning of 139b) says that designating money as Erchin does not make it Hekdesh. Only when the money reaches the Gizbar of Hekdesh does it become Kadosh. Hence, in the case of Erchin, the person has not fulfilled his responsibility until the money actually reaches the Gizbar of Hekdesh. It is not considered to be in the "treasury of Hekdesh" wherever it is, because it is not yet Kadosh until it reaches the Beis ha'Mikdash.

(b) The MISHMAR HA'LEVIYIM answers differently. The Turei Even's question is based on the assumption that the Isur of Bal Te'acher is related to one's obligation to fulfill his pledge, and thus once all of the parts of one's pledge have been fulfilled, he can no longer transgress Bal Te'acher.

However, the truth is that the Isur of Bal Te'acher is not necessarily related to one's pledge. This is evident from the fact that one who fails to give his Leket, Shichechah, and Pe'ah to the poor transgress the Isur of Bal Te'acher even though he did not make any pledge to give anything. It must be that even without making a promise, one who is required to give money or an object to Hekdesh (or to the poor) is obligated to give it, and if he fails to do so he transgress the Isur of Bal Te'acher.

Accordingly, even though the responsibilities included in one's promise are fulfilled by merely designating the money for Bedek ha'Bayis, nevertheless one is obligated to bring the money to the Beis ha'Mikdash because of the separate requirement of Bal Te'acher. Therefore, the transgression of Bal Te'acher of one who designates an object for Bedek ha'Bayis and does not bring it applies to a Neder of Bedek ha'Bayis just as it applies to a Neder to bring a Korban.

In the case of the Gemara here, in which the money designated for Bedek ha'Bayis was lost or stolen, the person is not obligated to bring the money to the Beis ha'Mikdash in order to fulfill his Neder (since he already fulfilled it by designating the money for Hekdesh), and nor does he need to bring the money in order to avoid transgressing Bal Te'acher, since he is "Ones" (a victim of circumstances beyond his control), and the Torah exempts an "Ones" from responsibility. Only when it is possible for him to bring the money to Hekdesh will he transgress Bal Te'acher if he fails to do so. (Mordechai Zvi Dicker)

139b

OPINIONS: The Gemara teaches that we learn from the words, "Ki Yikarei" -- "if a bird's nest chances to be before you" (Devarim 22:6), that one is not obligated to go searching in the mountains and valleys in order to find a bird's nest to fulfill the Mitzvah.

However, what is the Halachah if one happens to find a bird's nest, and he does not need the eggs or chicks? Is he obligated to go over to the nest and send away the mother bird in order to perform the Mitzvah of Shilu'ach ha'Ken, or does the Mitzvah to send away the mother bird apply only when one wants to use the eggs for himself? (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 PISCHEI TESHUVAH (YD 292:1) cites the CHAVOS YAIR (#67) who concludes that one *is* obligated to send away the mother bird whenever possible. He proves this from the Gemara here, which he understands to be saying that one is not obligated to go searching for a bird's nest in order to fulfill the Mitzvah, but one *is* obligated to perform the Mitzvah when he chances upon a bird's nest, even if he does not need the eggs. (The Chavos Ya'ir cites proof for this ruling from the words of the Zohar; see Insights to Chulin 138:5.)

This is also the view of the MAHARAL (Tiferes Yisrael, end of chapter 61), MAHARSHAM (1:209), BIRKEI YOSEF (YD 292:8), and ARUCH HA'SHULCHAN (YD 292:1-2).

This obligation applies even to a person who has absolutely no interest in owning the contents of the nest, and even if stopping to fulfill the Mitzvah will cause him to suffer a monetary loss, as the CHASAM SOFER (OC #100) and NETZIV (in Meromei Sadeh here) explain this view. The reason for this is that since the performance of this Mitzvah hastens the Ge'ulah (as described in Insights to Chulin 138:4-5), one is not allowed to squander such an opportunity, and thus it is a Halachic requirement to fulfill the Mitzvah. In addition, a person who sees a nest and does not perform the Mitzvah is punished in a time of Divine anger (Pischei Teshuvah loc. cit.).

It is interesting to note that the ARIZAL (quoted by RAV CHAIM VITAL in his introduction to Sha'ar ha'Mitzvos; Birkei Yosef, Gilyon Shulchan Aruch YD 292:6, and Aruch ha'Shulchan YD 292:1) writes that according to Kabalah, one must make every effort to perform Shilu'ach ha'Ken. He adds that one who does not perform the Mitzvah of Shilu'ach ha'Ken will return to this world as a Gilgul.)

(b) However, the CHACHAM TZVI (#83) and CHASAM SOFER (OC #100) rule that when one has no need for the offspring, he is not obligated to send away the mother bird. The Chasam Sofer adds that if the purpose of the Mitzvah is to inculcate in us the trait of compassion (see Insights to Chulin 138:4), then it is clear that we are not obligated to send away the mother bird when we have no need for the offspring, because doing so causes distress to the bird for no reason.

This is also the opinion of many Rishonim, including TOSFOS (140b, DH Shnei), the RAMBAM (Hilchos Shechitah 13:5), RAN, ME'IRI (139b), and RABEINU BACHYE (end of Devarim 22:7).

This view agrees that it is meritorious and commendable to pursue and perform the mitzvah, but it is not mandatory to do so and one is not punished for not doing so. In addition, all opinions agree that the Mitzvah is fulfilled l'Chatchilah even when one desires the contents of the nest exclusively so that he can send away the mother and perform the Mitzvah, and he will not use the contents afterwards.

HALACHAH: Most Acharonim rule that there is no obligation to send away the mother bird when one chances upon a nest and has no need for the eggs. This is the ruling of the Chasam Sofer (loc. cit), AVNEI NEZER (OC #481), CHAZON ISH (YD 175:2), CHAZON YECHEZKEL, MINCHAS CHINUCH (#544), and the CHAFETZ CHAYIM (in SEFER MITZVOS HA'KATZAR, Mitzvos Aseh #74). Most contemporary Poskim also rule this way, including RAV SHLOMO ZALMAN AUERBACH zt'l (in MINCHAS SHLOMO 2:5:4), and RAV YOSEF SHALOM ELYASHIV shlit'a and RAV CHAIM KANIEVSKY shlit'a (in personal conversations with Rabbi Naftali Weinberger). This common practice today. (Rabbi Weinberger quotes RAV YAKOV YISRAEL FISHER zt'l, however, who was of the opinion that one is obligated to send away the mother bird when he chances upon a nest, even though he does not need the eggs).

QUESTION: The Gemara says that the names of Moshe, Haman, Esther, and Mordechai are each hinted to in the Torah. Why does the Gemara specifically look for hints to the names of these four people?

ANSWERS:

(a) The MAHARSHA explains that we find that these four people had other names (see Megilah 12b-13a, and one might have thought that their names that are used in Tanach are not their primary names.

One might have thought that the name "Moshe" was not his primary name, since it was given to him by the daughter of Pharaoh, and it is an Egyptian name. The names "Haman," "Mordechai," and "Esther" are Persian names. Therefore, the Gemara wants to teach that these four names are the primary names of these individuals. By showing that the name of Moshe is alluded to in the Torah long before he was born, the Gemara proves that Hashem designated this name for Moshe, and it is his primary name. (This is also the approach of the BEN YEHOYADA in his first explanation.)

The Gemara similarly proves that "Haman" was his primary name, "Esther" was her primary name, and "Mordechai" was his primary name. (See the Maharsha, who explains at length the relationship between each name and the context in which the name is alluded to in the Torah.)

(b) The IYUN YAKOV explains that the Gemara asks where Moshe appears in the Torah, because it is bothered by a question. Right before his death, Moshe informed the people that he was going to die, saying, "I am a hundred and twenty years old today" (Devarim 31:2). The Gemara in Rosh Hashanah (11a) explains that Moshe said "today," because on that day his lifespan filled exactly 120 years. How, though, did Moshe know that he was going to die on that die? We are told that a person is not informed how long he will live (Shabbos 30a)! It must be that Moshe saw somewhere in the Torah that he would die when he reached the age of a hundred and twenty. The Gemara explains that he saw this in the verse, "... since he is merely flesh (b'she'Gam Hu Vasar); his days shall be a hundred and twenty years" (Bereishis 6:3). The word "b'she'Gam" alludes to the name of Moshe, and the rest of the verse alludes to his lifespan.

(Rabbi Eliezer Chrysler suggests further that the allusion to Moshe in this verse is in order to teach a lesson to the nations of the world. The nations have difficulty understanding how a mere mortal of flesh and blood can rise to such great spiritual heights as Moshe. They tend to believe that he was a supernatural being, and not a person. The Torah therefore refers to Moshe, in the context of the Mabul, with the words, "... since he is merely flesh," teaching that Moshe was no less flesh than everyone else, but he nevertheless reached great heights in Avodas Hashem (in contrast to the people at the time of the Mabul, who became so morally corrupt that they had to be destroyed).)

The Gemara asks where "Haman" is in the Torah, because the Gemara in Megilah (12b) says that Haman's other name was "Memuchan," because he was "prepared (Muchan) for downfall from the Creation." Where in the account of Creation do we find mention of Haman's downfall? The Gemara answers that it is alluded to in the verse, "ha'Min ha'Etz" (Bereishis 3:11), which alludes to Haman's ultimate demise of being hanged on the wooden gallows that he had prepared for Mordechai.

(Rabbi Eliezer Chrysler suggests further that the Torah hints not only to Haman himself and how he met his end, but also to the sin of the Jews that caused him to rise to power and to attempt to annihilate the Jews. It was the Jews' participation in the merrymaking of the people of Shushan that brought about the threat of Haman, as the Gemara (Megilah 10a) relates. Partaking in the forbidden pleasures of the party is alluded to in the verse in which Haman's name is mentioned, "Did you eat from the tree from which I commanded you not to eat?" In much the same way, it is the constant, ongoing pursuit of pleasure which causes our generation to go astray, and which is the root of many of our problems.)

The Iyun Yakov says that if Haman's name is alluded to in the Torah, then the names of Mordechai and Esther must also be in the Torah, because, as the Gemara in Megilah (13b) says, Hashem always "precedes the affliction with the cure." Therefore, the Gemara shows where their names are alluded to in the Torah.

(c) The BEN YEHOYADA, in his second explanation, explains that the Gemara's question regarding Moshe's name, "Moshe Min ha'Torah Minayin," can be read as, "Moshe Min 'Heh' (the letter 'Heh,' referring to the number five) Torah Minayin" -- that is, "where is Moshe's name found in the *five* books of the Torah?" Moshe's name appears through the books of Shemos, Vayikra, Bamidbar, and Devarim, but where does his name appear in Bereishis? The Gemara answers that it appears in the verse, "b'she'Gam Hu Vasar."

The Gemara asks where Haman's name appears in the Torah, because it wants to show that Mordechai was absolutely justified in infuriating Haman by refusing to bow down to him, even though doing so seemingly endangered the entire Jewish people. Wherever one's name is alluded to in the Torah, there is also an allusion to his end. The Gemara shows that Mordechai found Haman's name in the Torah, and thus he also found that Haman's ultimate end would be that he would hang from a tree, and that the Jews would overcome him.

Similarly, the Gemara asks where Esther's name appears in the Torah, because it wants to justify Mordechai's act of not hiding Esther in the innermost, hidden rooms, when the king's servants were gathering together all of the fair young maidens in the kingdom, so that she would not be taken to be defiled by Achashverosh. The Gemara explains that Mordechai found her name in the Torah, and thus he also found what her end would be. He understood from the verse, "Haster Astir" -- "I will hide My face on that day" (Devarim 31:18), that Hashem would save the Jewish people in a hidden, concealed way, through Esther.

Finally, the Gemara asks where Mordechai's name appears in the Torah, also in order to justify Mordechai's actions. One might criticize Mordechai for taking a role of authority. After all, we find that his ancestor, Shaul, tried to run away from a position of authority. Similarly, the Mishnah (Avos 1:10) says that one should stay away from positions of authority. Why, then, did Mordechai agree to become a minister to the king, even before Esther was taken as queen, and why did he agree to be the king's chief advisor after the Jews were saved? The Gemara explains that Mordechai found his own name in the Torah, where it says, "Kach Lecha Besamim Rosh Mor Deror" (Shemos 30:23), referring to the "Mor Deror" (Mordechai) as the "Rosh," the leader. He understood that for the sake of the Jewish people and the Torah, he must agree to accept the role of authority.

(See also Insights to Sukah 14:2, Megilah 12:3 Kidushin 38:1.)