Remember The Sabbath Day…
‘Shiluach HaKen Applies In Temple Times And After’
The Torah (Devarim 22:6) states that one who finds a bird’s nest with chicks or eggs on the road or in a tree may not take the mother bird while she is on her young. One must send away the mother bird and only then take the young. This is referred to as the mitzvah of Shiluach HaKen.
The Mishnah on our daf says that this mitzvah applies both during the times of the Beis HaMikdash and after. The Gemara comments that this is a superfluous statement because there is no reason to assume that the mitzvah would apply only when there is a Beis HaMikdash extant.
A Query To The Chasam Sofer
The following question was asked of the Chasam Sofer (Responsa Orach Chayyim 100): If someone happens upon a nest on Shabbos, is he required to perform the mitzvah of Shiluach HaKen or not?
‘Vehabanim Tikach Lach‘
In answer to this query, the Chasam Sofer first goes into a lengthy analysis of the mitzvah in which he cites the Chacham Tzvi, among others, who is of the opinion that one is only required to send away the mother bird but is not required to take the chicks. In his view, the Torah merely stated the word’s “vehabanim tikach lach – and the children take for you” as a segula – that in the merit of this mitzvahone will be blessed with children.
The Chasam Sofer also cites the Zohar (Tikunei Zohar, Tikuna 6, as cited by Responsa Chavos Yair, siman 67), which offers the following kabbalistic reason for the performance of this mitzvah. When one sends the mother bird away and then takes her young, one evokes feelings of compassion in the mother who by nature takes pity on her young. The mother bird’s merciful cry arouses Hashem’s compassion for His “young,” Bnei Yisrael, and causes Him to take pity on us.
However, according to Zohar, one is prohibited from performing this mitzvah on Shabbos because beseeching Hashem for mercy is prohibited on Shabbos.
Nigleh Or Nistar
The Chasam Sofer points out that our Gemara apparently differs with the Zohar. The Gemara had argued that the statement that the mitzvah of Shiluach HaKen applies whether the Beis HaMikdash is extant or not is self-evident and therefore superfluous. But it is hardly superfluous according to the Zohar. One may have thought that the mitzvah only applies during our exile when we are in special need of Hashem’s mercy for our redemption. Thus, we need the Gemara to tell us that this reasoning is false – that we need Hashem’s mercy even during the era of the Beis HaMikdash. Our Gemara, however, does find the Mishnah’s statement to be superfluous. Thus, we see that the Zohar’s reasoning is not accepted by the Talmud, and the Chasam Sofer notes that whenever there is a dispute between nigleh and nistar (i.e., the Talmud and Kabalah) we follow nigleh.
Tzeidah Or Muktzeh
The Chasam Sofer, however, offers another reason to prohibit performing the mitzvah on Shabbos. According to the Rambam (Hilchos Shechitah 13:5) the mitzvah entails grabbing the bird’s wing with one’s hand and causing it to fly away. Thus, according to the Rambam, sending away the bird on Shabbos is prohibited since one would violate the melachah of trapping – tzeidah. Even if one does not “trap” the bird, sending it away is still prohibited because the bird is muktzeh and the mitzvah of Shiluach HaKen does not override the prohibition of muktzeh.