The final perek in Masechet Chulin deals with the laws of sending the mother bird away and then taking her eggs. The source for this ruling is the following pasuk (Devarim 22:6-7).
If a bird’s nest happens to be before you on the road…and the mother is roosting on the young birds or the eggs, you shall not take the mother with the young. You shall surely send away the mother and take the young for yourself.
The Chovat Yair (67) deals with an interesting question on this mitzvah. Is the mitzvah of sending away a chiyuv on a person lechatchila i.e. if one sees a mother bird nesting on eggs, does he have an obligation to send the bird away (even if he does not require the eggs). Alternatively, do we say that this mitzvah only applies when one has a want or need for the eggs? It seems from the answer of the Chovat Yair that it is an obligation to send away the mother bird and take the eggs, even in a case where you do not have a need or use for them. This answer also fits with the literal meaning of the pasuk in Devarim (“shaleach tishalach”).
The Torah Temimah disagrees with the Chovat Yair. He mentions that the whole purpose behind the mitzvah of sending away the mother bird is to teach us not to be cruel. The Torah Temimah maintains that it is of the utmost cruelty, to take a young chick or egg away from its mother right in front of her. Indeed, one should not be taking these chicks from the mother at all. However at the end of the day all of creation was only created for Man. Man is given permission to undertake practices that may seem ‘cruel’ but have been allowed by the Torah. A perfect example of this is shechita. Although, slaughtering an animal could be seen as a ‘cruel’ and inhumane practice, since all was created for Man, the Torah provided him a specific way in which to slaughter animals. In the same vein, the Torah allowed Man to capture chicks and eggs in a certain way, a way which demonstrates a heightened sensitivity to the mother. However, this would only be the case if one actually wanted to use the offspring for a purpose – to send the mother bird away with no use for the eggs would be cruelty – the exact opposite of the mitzvah one was trying to fulfil!
The Mishnah in Brachot (33b) mentions that if a chazzan was leading davening and mentioned “[As far as] the bird’s nest your mercy (rachamim) reaches” – we remove him from leading the congregation. Rashi there states the reason he cannot be a chazzan is because his words imply that the mitzvot of Hashem were ordained solely in order to be merciful – however in reality all the laws of Hashem are decrees (gezeirot).
This Gemara poses a challenge to the opinion of the Torah Temimah. It seems from the Gemara in Brachot that the reason behind sending away the mother bird is not in order to avoid cruelty, but rather because all the laws of Hakodesh Baruch Hu are a decree. Therefore, it is conceivable that the opinion of the Chovat Yair should be accepted as it would be a decree from Hashem to send away the mother bird even if one did not need the eggs.
The Torah Temimah however, answers the challenge. He states that this Gemara is talking about our attitude to the performance of the mitzvot. It is not enough for one to do a mitzvah if one sees a purpose and reason behind the fulfilment. Having this type of attitude can lead one to over rationalise the reasons behind the mitzvah and then come to a transgression. This attitude was demonstrated to a degree by Shlomo HaMelech who rationalised that the reasons behind the limitations of wealth, wives and horses for Kings did not apply to him (see Sanhedrin 21b). The Torah Temimah leads us to understand that the real motivation required for doing every mitzvah is solely because it is a decree from Hashem. Even if one can see a purpose and reason behind a mitzvah, the ultimate fulfilment is to observe each and every mitzvah as if it was a gezeirah.
Receive our publication with an in depth article and revision questions.
Listen to the new Mishnah Shiurim by Yisrael Bankier