Q&A: The Commandment of Sending Away the Mother Bird
The Commandment of Sending Away the Mother Bird
Question
Hi, Rabbi.
In the Talmud in tractate Makkot 16a, it seems from the plain sense of the passage that the commandment of sending away the mother bird is really a prohibition repaired by a positive commandment, and also in the Mishnah later on (17a): "One who takes the mother upon the young—Rabbi Judah says: he is lashed and does not send her away; and the Sages say: he sends her away and is not lashed. This is the rule: any prohibition that contains a positive action is not subject to lashes"—it comes out that sending away the mother bird is like burning leftover sacrificial meat and a priest taking back his divorced wife, where the positive commandment comes to repair the prohibition if you already violated it, but not to tell you to violate it from the outset.
On the other hand, there is the Talmud in Hullin (139b): "One might think he should go back through the mountains and hills; therefore the verse says, 'If a bird's nest happens to be before you.'" That seems to indicate there really is a commandment in sending away the mother bird.
It's also a bit difficult to understand the phrase "so that your days may be prolonged"—if this is only a prohibition repaired by a positive commandment, then how does someone go from a negative situation (if he violated the prohibition) to receiving long life after the repair, and not merely a repair of the prohibition itself?
So my question is: what do people today rely on when they perform this commandment? And is there really a commandment in sending away the mother bird, or is it really only a prohibition repaired by a positive commandment?
Thank you very much.
Answer
First, the definition of such a prohibition is not simple. There are several types: a prohibition repaired by a positive commandment, a prohibition preceded by a positive commandment, and others (see, for example, Maimonides at the beginning of the sixth root). I seem to recall that in Rabbi Shmuel's lectures on chapter 3 of Makkot he wrote about this.
Second, it is possible that this itself is the conclusion of the passage in Hullin. Do not bring proof from the initial assumption.
Third, it is possible that there is a dispute between Talmudic passages here, especially when there is an explicit tannaitic dispute on the matter.
Fourth, from the plain wording of the Torah it appears that there is a commandment to send her away. It is possible that the Talmud in Makkot is discussing what he should do if he took the mother while she was on the young, so that he will not receive lashes. But from the outset he should send her away as a commandment.
Fifth, the long life is for having shown concern for the mother by sending her away. Even if this is only a repair for the taking, there is still room for such a promise.
As is known, the mystics and the non-mystical authorities disagreed about this (the Ran on Hullin and others). The author of Havvot Ya'ir discussed this at length in a responsum. Those today who go looking to perform sending away the mother bird follow the mystical approach, and in my opinion they are not acting properly.
The wording in Sefer HaChinukh and in Maimonides, simply understood, is that there really is a commandment to send her away. But apparently it serves to permit taking the young—sending her away before taking them—and it is still a commandment. Much could be said about all this in light of the details of the commandment (for example, why only on the road). And the Torah's wording, "If it happens," implies that you are not supposed to go chasing after this commandment, but only if you want to take the young.