Shechitah - Chapter 13

The fact that he violated a transgression in taking the mother does not cause the meat to be prohibited.

Sefer HaMitzvot (negative commandment 306) and Sefer HaChinuch (mitzvah 544) include this prohibition among the 613 mitzvot of the Torah.

The person transgresses the prohibition when he takes the mother and the offspring. Nevertheless, as long as the mother is alive and he can correct his deed by sending her away, he is not liable for lashes. This follows the principle of lav hanitak li'asai, a prohibition that can be corrected by a positive commandment, as stated in the following halachah.

For he can no longer fulfill the positive commandment.

For he corrected his actions through the positive commandment. Nevertheless, at the outset, it is forbidden for him to take the mother. He must send it away first, as is the simple meaning of the Torah's commandment. See Siftei Cohen 292:11.

The positive commandment to send away the mother bird is also considered as one of the 613 mitzvot of the Torah [Sefer HaMitzvot (positive commandment 148); Sefer HaChinuch (mitzvah 545)].

See the Kessef Mishneh (to Halachah 19) which explains that Chullin 141a mentions a difference of opinion concerning this mitzvah between Rabbi Yehudah and the Sages. Rabbi Yehudah maintains - and this is the simple meaning of the verse - that the positive commandment requires one to send away the mother bird only before taking it. Thus according to his view, sending away the mother after it was taken does not fulfill a mitzvah and hence, does not correct the transgression. The Sages differ and maintain that the halachic definition of the mitzvah also includes sending away the bird after it was taken. Therefore, if one took the mother together with its young, he can correct his transgression by sending away the mother. The Rambam's decision reflects the Sages' position.

See Makkot 16b which mentions a difference of opinion concerning the matter. One view maintains that as long as the person does not prevent himself from correcting the transgression through his own conduct, e.g., with regard to the matter at hand, he did not kill the mother bird, he is not lible for lashes. The other view, which as above is accepted as halachah by the Rambam, is that the person becomes liable for lashes when he violates the transgression. It is just that the punishment is suspended as long as he has the opportunity to correct the matter. Once, however, that opportunity no longer exists, even if it is not his fault - e.g., in the matter at hand, the bird dies - that punishment is meted out.

And is therefore held liable for the violation of the negative commandment.

I.e., he is trying to perform the mitzvah by sending the mother bird away on its feet so that he will not be held liable and yet will be able to take it again shortly afterwards. See Shulchan Aruch (Yoreh De'ah 292:4).

I.e., he is punished for his defiance of the spirit of the Torah's commandments even though it is possible that he will not actually be held liable for lashes.

I.e., as long as the mother returns before he takes the young so that the mitzvah is still relevant (Siftei Cohen 292:8).

See Bava Metzia 31a which gives several examples of how the repetition of a verb in the Torah implies that a commandment must be fulfilled even 100 times.

And thus seemingly, he will be fulfilling the intent of the Torah's commandment, for he will not be taking the mother and the young together.

This addition is made on the basis of Shulchan Aruch (Yoreh De'ah 292:5).

Once he has taken the offspring, they are considered as "at hand," and this mitzvah no longer applies as stated in the following halachah and notes (Siftei Cohen 292:10).

For, as emphasized in Moreh Nevuchim, Vol. III, ch. 48, which explains that this is the motivating rationale for this mitzvah: to prevent the cruel act of taking the young in front of the mother. Note, however, Hilchot Tefilah 9:7 and the resolution of the apparent contradiction in the previous chapter.

Chullin 139b derives this concept from the exegesis of the prooftext from Deuteronomy.

When quoting this law, the Shulchan Aruch (Yoreh De'ah 292:2 and commentaries) emphasizes that if the nest is within the person's property and the mother bird lifts itself up, the person automatically acquires the offspring. From that time on, they are considered as "at hand" and the mitzvah does not apply. See Halachah 18 and notes.

Our translation is based on Rashi's commentary to Chullin 64b.

Chullin, loc. cit., notes that the verse mentions both eggs and chicks and derives both of these concepts from an equation it establishes between the two: Just as the chicks are entities that will continue to exist, so too, the eggs must be entities that will continue to exist [in contrast to unfertilized eggs that will spoil after a certain time]. Just as the eggs require their mother, so too, the chicks must require their mother.

Chullin 140a emphasizes that the verse mentions a mother, implying "and not a father."

For Chullin 138b states that the verse forbids taking the bird and its offspring "for yourself." Implied is that there is no prohibition when taking it for your dogs, i.e., taking a non-kosher species which is fit only to be fed to the dogs.

There is an unresolved question concerning this issue in Chullin 140b. Hence, it is forbidden to take the birds, but one is not liable for lashes because of the doubt.

Even though it is forbidden to eat the mother, there is a difference between it and a fowl from a non-kosher species. A mother from a non-kosher species is excluded because the prooftext uses the term tzipor which indicates a kosher species. A bird which is trefe, though forbidden, is still a tzipor (Siftei Cohen 292:1).

The literal meaning of the Rambam's words is "If he cut a portion of the signs." We have translated the Rambam's words as above because as obvious from the conclusion of his ruling, there is a doubt whether he is obligated to send away the mother bird. And with regard to the windpipe there is no doubt that he is obligated to send away the mother.

To explain: Chullin 140b questions: "Do we say that since after slitting a portion of the signs the animal will be trefe, is there a need to send it away?" Now, if a person slits less than half the windpipe, the fowl is not trefe and if he slits more than half of it, its slaughter is completed. Hence, we are forced to say that he is speaking about cutting a portion - but less than half - of the gullet. If he does not complete the slaughter, making such a slit will render the fowl trefe.

The fact the Rambam uses the term sheyikachenah, "before he takes her," implies that he is speaking about the mother bird. This understanding is also acknowledged by the Tur and Rabbenu Nissim. In his Kessef Mishneh, Rav Yosef Caro questions that interpretation, noting that even if the mother bird was made trefe by slitting its gullet, it would have to be sent away as stated in the previous halachah. Therefore, he suggests amending the text of the Mishneh Torah to imply that the signs of the chicks were slit and the question is, since he is involved in the slaughter of the chicks and stopping to send away the mother would render them trefe, must he stop and send her away or not. He follows this interpretation in his Shulchan Aruch (Yoreh De'ah 292:10).

Since the Talmud does not resolve the question it raises, one cannot be held liable for lashes because of the doubt.

The Torah uses the expression "resting on the nest." Chullin 40b infers that if the mother is hovering over the nest, the mitzvah does not imply. Since the verse does not use the term "sitting," however, we learn that the obligation exists even when the mother is not sitting in the nest but lingering close by in a manner that its wings are touching.

This question is left unresolved by Chullin, loc. cit. Hence, the Rambam rules that one must be stringent and send away the mother, but because of the doubt, cannot be held liable for lashes if he did not.

All of these situations are questions left unresolved by Chullin 140b. Hence, as above, one must be stringent and send away the mother, but because of the doubt, cannot be held liable for lashes if he did not.

In his Kessef Mishneh, Rav Yosef Caro mentions a question raised by Rabbenu Nissim: Since touching the nest from the side is not sufficient as indicated by the concluding clause in the halachah, what does it matter if the mother bird touches its young from the side when it sits among them? Based on that objection, in his Shulchan Aruch (Yoreh De'ah 292:12), he incorporates Rabbenu Nissim's understanding when quoting this law.

For the Torah speaks about the mother "resting on the eggs or the chicks" and not sitting at their side.

Rashi, Chullin 140b, states that this applies even if the mother's wings are not touching the nest. As long as she is resting directly above the nest, it is considered as if she was resting on it. The Siftei Cohen 292:17 quotes this point as halachah.

As evident from Chullin 12:3, the Biblical command speaks about "a nest." As long as a nest contains one egg or chick, it is still considered a nest.

Using a plural form.

This is a general principle applying with regard to many Biblical commandments. See Yevamot 15:2, Shabbat 65a, Nedarim 48a.

The Rambam is referring to a principle in Jewish business law which maintains that a person can acquire property by virtue of its presence in his domain. As the Rambam states in Hilchot Gezelah Va'Avedah 17:8-11:

A person's courtyard can acquire property for him without him being aware of it. Thus, if a lost object falls into a person's courtyard, he acquires it.

When does the above apply? When the courtyard is protected. [When, by contrast, a lost article enters a person's] field or garden [different rules apply]. If he is standing at the side of his field and says, "May my field acquire it for me," he acquires it. If, however, he is not standing there, or he is standing there but does not make such a statement [he does not acquire it.]...

The [potential for] a man [to acquire property by virtue of its presence in his] courtyard is derived, by contrast, from [the fact that] he is able to acquire an article via an agent. Just as an agent can acquire [an article] for him, so too, can he acquire [an article by virtue of its presence in his] courtyard....

[The following rules apply when a person] sees... young doves that cannot fly [in his property]: [When the following conditions are met:] he was standing at the side of his field, [the animals] were on his property, and he could catch them if he ran, he can acquire them [by virtue of their presence in] his field if he states: "May my field acquire them for me."

Thus in the case at hand, since the person cannot acquire the eggs himself until he sends away the mother, his courtyard cannot acquire them on his behalf (Chullin 141b).

For as stated in the quoted portion, the potential for a person's property to acquire an article on his behalf is derived from the laws of agency.

As mentioned above, the Shulchan Aruch (Yoreh De'ah 292:2) states that if the mother bird lifted itself up, the person can acquire the chicks by virtue of their presence in his property even if he does not remove them from their nest. From that time on, they are considered as "at hand" and this mitzvah does not apply. Indeed, he can tap the nest so that the mother will rise up and then acquire the young (Kessef Mishneh).

A skin condition, resembling leprosy, that is visited upon a person as retribution for speaking gossip and slander. The purification process for such a person is described in Leviticus, ch. 14, and Hilchot Tuma'at Tzara'at 11:1.

As stated in Halachah 2. Even if he used the mother bird for a mitzvah, he still receives lashes for violating the transgression.

The purification of the person with tzara'at.

The prohibition of taking the mother which is reinforced by the mitzvah to send her away. Note the Kessef Mishneh who questions whether the two mitzvot should be placed in this category, for according to the Sages (whose opinion is accepted as halachah), the two mitzvot do not apply at the same time.

I.e., once he has taken the mother bird, he is obligated to send her away and the observance of another positive commandment, e.g., the purification rite mentioned above, does not supplant it.

For not only the mother, but also the offspring, belong to the Temple treasury. For the mother gave birth to them after she had been consecrated.

For as above the offspring are also the property of the Temple treasury.

Significantly, although the Rambam's ruling is based on Chullin 138b, he does not quote the wording of the Talmud, but instead, explains the derivation of the ruling in a different manner. The Lechem Mishneh explains that this reflects a pattern found frequently in the Mishneh Torah: The Rambam will explain the derivation of a law differently than the Talmud if it appears to him that his derivation is simpler and more direct.

See Hilchot Sanhedrin 5:2 which states that an animal that kills a human must be judged by a court of 23 judges.