Sending Away the Mother Bird

There is an interesting machlokes acharonim regarding the mitzvah of Shiluach haKan. If one happens upon a bird's nest and does not need the eggs - must he send away the mother bird anyway?

The Kollel Iyun HaDaf discusses this issue (link - lightly edited for clarity purposes):

The Pischei Teshuva (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 [Chullin 139b], 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 HaShulchan (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 Kabbalah, 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.)

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 Tosafos (140b, DH Shnei), the Rambam(Hilchos Shechitah 13:5), Ran, Meiri (139b), and Rabbeinu Bachya (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.

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 Chaim (in Sefer HaMitzvos HaKatzer, 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).

Thus, although many acharonim say there is no obligation to send away the mother bird if you don't want the eggs, a significant number argue and say that the obligation is there in any case - as long as you happen upon a bird's nest.

When Issur and Tumah Collide

The Minchas Chinuch in Mitzah 263 (Din Tumas Kohanim) writes as follows:

And behold I will not refrain from writing what I don't know even though it is possible that it is a davar pashut for one who is a baki in shas and he has good sechel. Still a man like me is not embarrassed to write what is in doubt to me. Behold it is well known in all of shas that safek tumah in Reshus HaYachid is tamei... and safek tumah in reshus harabbim is tahor... and this matter is only by tumah but by issurin there is no nafka minah between reshus hayachid and reshus harabbim... and behold if one is tamei with a safek tumah in reshus hayachik he is forsure tamei... I am in doubt what is his halacha as far as issur for example like over here with a kohen and nazir that if there is a safek tumah in reshus hayachid or even sfek sfeka if he touches it he is forsure tamei... But if they warned him not to become tamei and he transgressed and became tamei does he get malkos? Or do we say that the Torah revealed this only for tumah...

In other words, the Minchas Chinuch is mesupak as to what is the halacha of safek tumah in reshus hayachid when it comes to the issur of coming into contact with tumah. Do we apply the rules of safek tumah or the rules of safek issur?

The Esvan D'Orayssa in Klal 21 deals with a similar issue. He introduces the piece as follows:

Here we will speak on the inyan of niddah to her husband. Is it issur or tumah?

At the end of the piece he quotes an Aderes Eliyahu from the Gra as follows:

And see also the Gra in Sefer Aderes Eliyahu where he says as follows in Parshas Shoftim on the pasuk of Ki Yipalei Davar etc. and here are his words:

That the torah is divided into six parts tahor and tamei, assur and mutar, and chavav and zakai. Bein Dam L'Dam this is Issur and Mutar to make a woman pure for her husband...

The Esvan D'Orayssa finishes with the following words:

And it is clear that dam niddah and zivah that assur a woman to her husband are in the category of issur and not in the category of tumah.

* For more on this topic see Siman 2 of Sefer Eretz HaTzvi by Rabbi Hershel Schachter.

How Many People are Needed for a Minyan?

In this previous post we discussed the issue of Pores Al Shma. We mentioned that according to Rashi the mishna is basically saying that for kaddish and kedusha you need 10 people. The gemara there in Megillah 23b explains that the pshat in the mishna is that all things classified as "davar shebikdusha" need 10 people for a minyan.

Interestingly there is a Meseches Sofrim (10:7) which at first glance seems to argue with this gemara in Megillah. Here are some excerpts from that Meseches Sofrim:

And one does not say Kaddish and Borchu with less than 10... Our Rabbis in the west say... with seven... [as it says] bifroa peraos etc... and some say even six... And in a place where there are nine or 10 that already heard either Borchu or Kaddish and after tefillah one of these gets up and says Borchu or Kaddish and they answer after him he is yotzei. And the Chachamim were already mesaken for the Chazanim that after geulah they say Yehi Shem Hashem Mevorach... and after this Borchu in order to be motzee those that haven't heard because R' Yochanan said "Halvei that a person should daven all day". And the people of the west and east have a custom to say it after Oseh Shalom in the three tefillos of shemoneh esrai as a gezairah fro those who have just entered and a gezairah for those leaving and even after krias hatorah...

The Rishonim in Megillah mention this Meseches Sofrim. Some say that the Rabbis of the West argued with our gemara and actually required less than 10 for a minyan. Others say that the Meseches Sofrim doesn't mean to say that you need 6 or 7 for a minyan, but only means that you need 6 or 7 who have not yet davened to be a part of the minyan.

In Iggros Moshe O.C. 1:28 Rav Moshe mentions using the concept of Rubo K'kulo when it comes to minyanim. He says that obviously the rule of Rubo K'kulo does not apply to shiurim. So, if you need a minyan of 10 people you can't say that with 6 you have a minyan because of rubo k'kulo. However, he says that if 6 of the 10 have not yet davened you can apply rubo k'kulo and say that you have an "entire" minyan of people who are chayav in davening.

We find the idea of rubo k'kulo applied here in the words of the Ran on Daf 3a in Dapei Harif of Megillah as well. The issue being dealt with there is that we know R' Assi holds that 10 are needed for krias megillah. So the rishonim are bothered how come in this mishna of pores al shma we don't list krias megillah as something that needs 10 people (according to R' Assi)? It is especially difficult to say that this was left out since this list is in a Mishna that is in Meseches Megillah. Certainly Krias Megillah itself should make the list! It is difficult to say that the mishna is lav davka. The Ran there explains (following the shitah of the Milchamos there; see also Baal HaMaor) that the Mishna is only listing things that are Chovas Tzibbur. This means that if you have a tzibbur who are all still chayav to hear or recite one of the things in the mishna the chiyuv is chas on the tzibbur as a whole. When it comes to krias megillah it is not a chovas tzibbur. Rather, it is a chovas yachid (every yachid needs to hear the megillah) that should be done in front of 10 people due to pirsumei nissa. This is why Krias Megillah is not in the Mishna.

It comes out that according to the Ramban krias hatorah (which is also in the Mishna in Megillah) is a chovas yachid. This would mean that if one does not go to minyan on a Monday or Thursday the chiyuv to hear krias hatorah would never be chal on him. I heard, however, that Rav Chaim Soloveitchik was machmir for the opinion that krias hatorah is a chovas yachid. Therefore, he was very makpid to hear leining on Mondays and Thursdays - even if it meant jumping off trains (I don't know if they were moving).

Pores Al Shma

The Mishna in Megillah on 23b discusses different things that require 10 people. The first of the list is called "pores al shma". There is a major machlokes rishonim as to what exactly this means. The Ran (in the dapei harif) has a there has a good summary of the different strains of thought in rishonim. Basically, according to Rashi's camp the issue is regarding someone who already davened b'yichidus and now wants to make up the stuff that he missed because he didn't daven b'tzibbur. He joins together with 10 people and they daven in an abridged form to make up Borchu, kaddish, and kedushah.

The Geonim have a different approach entirely. They say that we are referring to how one can be yotzei in birchas krias shma through shomeah k'oneh. The rules of shomeah k'oneh change depending on the tefillah. Most of the time one person can recite a bracha and the listener can be yotzei through shomeah k'oneh. However, sometimes it's not so simple. For example, by bentching the halacha is that in order to do shomeah k'oneh one needs to have three people in a mezuman. The mishna is teaching us that for birchas krias shma one needs ten people to be yotzei through shomeah k'oneh.

In the Chidushei HaRan there in Megillah (not the Ran in Dapei HaRif I quoted above) he says that the kedusha that we recite in the bracha of yotzer ohr in the morning is not a real davar shebikdusha. We are merely saying what the Malachim say to be mekadesh Hashem - but we are not really doing it like we do in the kedusha of chazaras hashatz. In the footnotes there I saw that this is not agreed upon by all rishonim. Some hold that this kedusha is a real davar shebikdusha.

I heard that this was the opinion of R' Chaim Soloveitchik (or at least he was choshesh for this opinion). He may have held that the responsive nature of this tefillah rendered it a davar shebikdusah (see here). He used to stand up when he got to this kedusha - just as we stand up when we recite any davar shebikdusha. [Not everyone has this minhag to stand by davar shebikdusah but we are assuming here that one does stand for davar shebikdusha.]

R' Yosha Ber Soloveitchik also used the logic of davar shebikdusha to explain the different minahagim by a mezuman of 10 people. We explained that previously here as well.

The Rishonim here on the inyan of Pores Al Shma all deal with a difficult Meseches Sofrim. Although our gemara clearly states that davar shebikdusha requires 10 people the Meseches Sofrim seems to disagree. Some explain that the Meseches Sofrim only means to tell you the number of people in the minyan who cannot have davened yet. Others say that the Meseches Sofrim is indeed arguing and requires less than 10 for a davar shebikdusha.

Shinuy HaTeva

יב ואין להוסיף על טריפות אלו, כלל: שכל שיארע לבהמה או לחיה או לעוף חוץ מאלו שמנו חכמי הדורות הראשונים, והסכימו עליהן בתי דיני ישראל--אפשר שתחיה. ואפילו נודע לנו מדרך הרפואה, שאין סופה לחיות. [יג] וכן אלו שמנו ואמרו שהן טריפה--אף על פי שייראה בדרכי הרפואה שבידינו שמקצתן אינן ממיתין, ואפשר שתחיה מהן: אין לך אלא מה שמנו חכמים, שנאמר על פי התורה אשר יורוך

Here the Rambam is paskening that whatever treifos are listed in the Gemara we cannot add nor subtract from them. Even if we find something else that renders an animal physically a treifah we cannot add to the list. We should assume that the animal may be able to live for 12 months. Likewise, if we find that one of the treifos in the list in the gemara no longer renders an animal physically a treifah - it still has the halachic status of a treifah.

Why is this?

In an article in The Journal of Halacha and Contemporary Society (Volume 31 - Shinuy HaTevah) Rabbi Dovid Cohen brings a some opinions from the poskim on this issue. The Chazon Ish (Y.D. 5:3 and E.H. 27:3) says that it is basically like a gezairas hakasuv that only these treifos (that existed at the time of the gemara) should count as treifos l'doros. R' Moshe Feinstein (E.H. 2:3:2) says a similar idea but he adds to it. He asks why does the gemara need to say that the list of treifos are a halacha l'moshe misinai? He answers that it is specifically to tell you that this is the final list.

Based on his reasoning, R' Moshe had an interesting psak regarding the issur of petsua daka. He ruled that a certain procedure that was assured in the gemara (because it made one a petsua daka according to the gemara) is permitted nowadays because nowadays it doesn't render one a petsua daka. By petsua daka there is no halacha l'moshe misinai like there is by treifos that would say we follow the actual list in the gemara. Rather, by petsua daka we follow the actual metsius of what the procedure is determined to cause nowadays.

Interestingly, the Rashba (1:98) is cited by Rabbi Cohen as saying the following on the issue:


[The Rashba] quotes various instances where the Gemara recounts stories of people who claimed that they experienced circumstances which contradicted the rules of the Gemara. The Rabbis were persistent that the people were obviously lying about their stories and, in each ci:l.se, the people finally admitted that they had told the stories inaccurately. The Rashba concludes, therefore, that a statement made by the Gemara must always be considered true. Their teachings are all based on the teachings of Moshe Rabbenu; we are prepared to say even that one thousand people are lying rather than reject one word of the Gemara.

So according to the Rashba even if we think the metzius is different we should just assume we are wrong.

Rav Moshe however says that even the Rashba would have to admit in certain instances that the metzius is different if it is strikingly apparent. Rabbi Cohen cites some Gemaras that could fit into the "strikingly apparent" category:

1. Rambam Perush HaMishnayos Becohoros 8:2 - If a woman delivers a baby by C-section she won't be able to have another one.

2. Niddah 31a - Boys are born face down and girls face up.

*As mentioned, the material in this piece was taken from the much longer article in the Journal of Halacha. For practical halachic rulings consult a halachic expert.

Do Angels Understand Aramaic? Part 2

In this previous post we quoted the gemara that says that one should not pray in aramaic because angels don't understand aramaic. We asked from R' Ovadiah Yosef - shouldn't one direct his tefillos straight to Hashem?

R' Ovadiah Yosef answered that b'tzibbur, indeed, all tefillos are directed only to Hashem. However, b'yichidus one could direct the tefillos to angels to act as mediators to Hashem. He proves this from the fact that we daven at kivrei avos. The idea is, again, that we don't mind having the tzaddikim "deliver" the tefillos to Hashem.

We mentioned that the Briskers are very machmir not to ever ask the angels to act as mediators to Hashem. For this reason they do not say Malachei Rachamim. The question is what do they do with the gemara that one shouldn't pray in Aramaic because the angels don't understand aramiac? In the comments Josh Waxman (homepage) suggests the following answer for that gemara:

Of course one only addresses Hashem in tefillot. But, completely without being asked to, the angels "pick up" those prayers and deliver them and present them before Hashem. And one should not daven to angels, even as "mediators."If in Aramaic, the angels would not recognize the words as prayers, or else would not be able to repeat them, or some such idea.

So one can never ask other beings to deliver the prayers to Hashem - thus explaining the Brisker chumrah. However, on some metaphysical level the angels "pick up" the prayers and deliver them to Hashem anyway (however exactly that works and whatever that means). If you want to see more you can read the comments to that post here.

Eating Matzah on Erev Pesach

The Yerushalmi in Pesachim in the beginning of the 10th perek says from R' Levy that anyone who eats matzah on Erev Pesach it is like he is boel arusaso b'beis chamav. From here we learn that on Erev Pesach one should not eat matzah. There is a machlokes rishonim as to how much of the day of erev pesach is the prohibition in effect.

On Daf 15b in Dapei HaRif of Pesachim the Baal HaMaor and the Milchamos argue about this issue. The Baal HaMaor says that the prohibition only exists from the time the issur chametz sets in 6 hours into the day of erev pesach. In other words, the prohibition to eat matzah on erev pesach is directly linked to the prohibition of chametz on erev pesach.

The Ramban argues. He holds that from the Yerushalmi it is clear that the prohibition is all day. The proof of the Ramban from the Yerushalmi isn't all that clear.

In the Yerushalmi there is another shitah brought from R' Yehudah ben Besaira who makes the statement - whether chametz or matzah one can't eat it. The Ramban says, from the fact that he said nothing about 6 hrs. into the day, it follows that the issur is all day.

The Ran (dapei harif 16a) asks on this proof. Even if we assume that this is what R' Yehuda ben Besaira meant he is still linking the issur matzah to the issur chametz. R' Yehuda ben Besaira is merely l'shitaso that chametz is also assur all day on erev pesach. We, who hold that the issur chametz is only from chatzos should apply the same issur to matzah. In other words, R' Yehuda ben Besaira is linking the issur chametz to the issur matzah, so the Ramban has no proof whatsoever.

R' Moshe in Iggros Moshe Chelek 1:155 addresses this machlokes rishonim. He is trying to determine how we should pasken. Should we be machmir like the Ramban or not?

R' Moshe makes a lengthy argument to try to show how the Yerushalmi actually fits with the Ramban. It seems to me that the thrust of his argument relies on the logic that if the tannaim don't say anything we should assume that the issur is all day. It is a much more lengthy argument though, so I don't want to oversimplify it - take a look yourself.

Then R' Moshe writes the following (rough translation):

And therefore even though the issur of matzah on erev pesach is only midrabbanan, that according to the rules of psak we that the Rema writes in Choshen Mishpat 25:2 we should go like the lenient opinion that the issur is only from the zman issur chometz, nevertheless since it has been explained that the simple pshat of the Yerushalmi is like the Ramban that it is assur all day because the explanation of the Baal HaMaor and the Ran is dochek, therefore one should be machmir like the Ramban and the Rambam acc. to the Maggid Mishneh and other Rishonim that assur all day, and as is the minhag in our countries.

This seems difficult to me. R' Moshe is ruling like the Ramban because the pashtus of the Yerushalmi is like him. But the Ran himself was talking about the same Yerushalmi and said that the Yerushalmi isn't like the Ramban. And the Baal Hamaor was also talking about the same Yerushalmi, so he also didn't think the pashtus was that way. Essentially we have rishonim arguing about what the pashtus of the Yerushalmi is. Also, R' Moshe took several columns to explain how the Yerushalmi follows the Ramban (to answer a question of the Ran), so how is that the pashtus?

On the other hand, R' Moshe does say that the minhag is to be machmir, so for that reason maybe one should be machmir.

R' Moshe also deals with the analogy to an arusah b'beis chamav. He isolates two ways of understanding the issur of arusah b'bais chamav. One is that it is the same as the issur penuyah, essentially she isn't yet your wife. The second approach is that only bias mitzvah is muttar (like for mitzvas onah or for pru urvu). In the arusah period there is no mitzvah - so m'meilah biah is assur.

In the second approach the analogy is smooth. By matzah also, we aren't at the zman mitzvas matzah yet, just the preparatory stage - so it is assur. R' Moshe points out that in the first approach it is difficult because if the issur arusah is the same as penuya - so matzah should be assur all year! Why only on erev pesach?

R' Moshe says the two derachim would actually break down into the shitas baal hamaor and Ramban. In the second approach the ides is that in a preparatory stage we assur. If so, it makes sense that all of erev pesach is considered preparatory. R' Moshe even says that 30 days before pesach it could've been assur, but the Rabbanan were meikil. He says this also explains the minhag not to eat matzah from Rosh Chodesh Nissan until Pesach.

In the first approach where the analogy isn't smooth, R' Moshe says pshat must be that we assur matzah any time that there are "dinei pesach" just like we assur an arusah who has "dinim of ishus". Thus, the issur would only be in the zman of dinei pesach - i.e. when chametz is assur.

All of this I also have a bit of difficulty with. I thought that within the analogy the Baal HaMaor's approach is surely more logical (to relate the issur matzah and the issur chametz). Why do we only assur matzah because of arusah b'bais chamav? Why not assur lulav before sukkos and sitting in the sukkah as well sukkah? And marror before Pesach? How would R' Moshe explain this? If the issur is not to do a mitzvah in the preparatory time preceding the mitzvah all these cases should also be assur.

Therefore, it would seem that the idea is that when chametz is assur you might think that matzah is now muttar. Just like an arusah, if she is now assur to other men and ishus started, one might think she is muttar to her husband. Thus, we say no. The heter to her husband is only after nissuin, and the heter for matzah is only after Pesach begins. If you tie the issur matzah into chometz it makes much more sense why the issur applies here and not to other mitzvos on erev yom tov. The issur chametz and heter matzah are related. Therefore, the Yerushalmi says no, there is a erusin period where you do not yet eat matzah.

These are some issues that I had with this Iggros Moshe. Any insights would be appreciated.