Tuesday, August 28, 2007

Parshas Ki Tzeitzei:Shiluach HaKan In The Backyard

Well, the new z'man has started and I am back to giving my parsha chabura. This week's topic was on whether one can do the mitzvah of shiluach hakan on a nest in your backyard.

The gemara in Chullin learns out from the possuk "ki yikarei kan tzippur"-p'rat l'mezuman. A nest that is considered m'zemun is pattur from shiluach hakan. The question is, how does one define mezuman? One could argue that mezuman is a din in ownership. If you own the nest than it is mezuman and you can't do teh mitzvah. However, another way to look at it is that mezuman is a metzius-if the nest is right there for you to access, even if you don't technically own it, you are still patur from the mitzvah.

This question is a machlokes haposkim.


Rav Shimon Sofer in Shut Hisorures Teshuva brings a rayah that mezuman is tied to ownership. The gemara in Chullin 142B says that if one has doves in his courtyard then you are chayav in shiluach hakan and you are also chayav for stealing them because of darkei shalom. The gemara asks, why are you chayav in shiluach hakan if we have a rule that "chatzar shel adam koneh sheloh mida'ato". The gemara answers that we are talking about a case where the mother is hovering over teh eggs. Since you can't be koneh the eggs while the mother is hovering over them, so too your chatzeir can't be koneh them either. Rav Shimon Sofer says from here we say a clear rayah that mezuman is tied to kinyan. It is only called mezuman if you own it, if you don't own the nest it is not mezuman.


The Imrei Yosher (Rav Meir Arik) in a teshuva to Rav Shimon Sofer disagrees. He says that mezuman can't mean kinyan but rather it means that the nest is easily accessable. If this were true then why does the mishna say you are pattur if the nest is mezuman, the mishna should say that you are pattur if the nest is not hefker. Furthermore, why does the gemara say that in order to do shiluach hakan one should go into the mountains and valleys? Why don't you just go into your backyard and be mafkir your chickens. Finally, the rayah from the sugyah of "chatzeir shel adam koneh sheloh mida'ato" is not a rayah. In that case yuo were never aware that the eggs were laid. If you don't know the eggs are laid that is not called mezuman. However, if your chatzeir is koneh then that creates mezuman as well. In other words the main defintion of mezuman is access, however if you own them then it could also be mezuman.

Rav Shlomo Zalman Aurbach zt"l (Minchas Shlomo Chelek 2 Siman 97) also brings a rayah to this tzad from the fact that the gemara says if the nest is "b'yadcha" you are pattur. Acording to this, being mafkir the nest won't help since one could go into their backyard and acquire the nest at any moment. The nest is always considered "b'yadcha".

(Also, ayin Rashi on b'yadcha that it means a) mezuman b) kinyan. )

Halacha L'ma'aseh

Can one be mafkir a nest in the backyard in order to do the mitzvah of shiluach hakan?

It seems this is a machlokes haposkim. As mentioned, the Imrei Yosher and Rav Shlomo Zalman both hold it isn't a halacha in kinyan and therefore hefker won't help-it is still mezuman. (Rav Asher Weiss also agrees with this).

However, Rav Moshe (Igros Moshe Y.D. cheilek 4 Siman 47), the Steipler, Chazon Ish, Rav Chaim Kanievsky and Rav Sheinberg all say hefker works. (the Steipler, Chazon Ish, Rav Chaim Kanievsky and Rav Sheinberg are brought down in Shiluach Hakan - A Practical Guide By Naftali Weinberger. This is a very nice sefer that includes written p'sakim from Rav Chaim Kanievsky and Rav Sheinberg). According to this tzad, a person can have in mind that he doesn't want his chatzeir to be koneh any nests and then he can do the mitzvah. Also, even after you do the mitzvah, you can be mafkir the nest and let someone else do the mitzvah. This seems to have been the practice of the Chazon Ish and the Steipler.

A more important chiddush mentioned by Rav Moshe and Rav Chaim Kanievsky is that b'zman hazeh one doesn't even need da'as that his chatzeir should not be koneh the nest. Since most people don't like nests in their yard because the birds make noise and cause a mess, we assume a person never wanted to be koneh the nest in the first place.

It would seem from the book I mentioned that the common practice is to follow the opinion that mezuman means kinyan and hefker works. (If anyone knows differently please let me know)

Thursday, August 16, 2007

Yiras Shamayim While Sleeping

Can one be considered in a state of yiras shamayim while sleeping.? After all when you are sleeping you are removed from any "hevlei ha'olam" and not involved in any form of "kalus rosh".

Sounds like a big chiddush? Well this idea is actually found in the Emek Bracha on Hilchos Tefillin (p. 26).

The gemara in Menachos (36b) says that a person should touch his tefillin when wearing them. The Rosh and Rabbeinu Yona explain that there is a problem of having hesech ha'da'as while wearing tefillin. The reason for this is because if you are masiach da'as from your tefillin it will lead to kalus rosh. Tehrefore, by touching your tefillin you will not be masiach da'as and you will not come to kalus rosh.

The Shagas Aryeh (Siman 40) disagrees with this understanding of why hesech hada'as is assur. He brings a rayah from a Rambam and Ramban to show that the din of hesech hada'as is a halacha in tefillin, that you are always supposed to be conscious of wearing tefillin. It has nothing to do with kalus rosh. The Ramban writes that an aveil is pattur from tefillin since he will be masiach da'as from his tefillin while the Rambam also writes one who is mitztaeir is patur from tefillin since he will be maseiach da'as. In both cases there is no chashash of kalus rosh, yet there is still a din of hesach hada'as.

To answer this kasha the Emek Bracha says the whole point of teh Rosh is that one has to be in a state of yiras shamayim (his loshon is "matzav shel yiras shamayim"). In both the case of the Ramabm and the Ramban since you are not going to forget hevlei ha'olam there is a concern you won't be in this state of yiras shamayim. The Rosh does say that a temporary sleep (shinas arai) is muttar while wearing tefillin. The reason is that while you are sleeping you are forgettoing heveli ha'olam and you are in a matzav of yiras shamayim.

What comes out from this Emek Beracha is that on some level one is m'kayeim yiras shamayim while sleeping. I am not sure if he would say you fullfill a mitzva but at the very least there is no negative yiras shamayim.

(I am not sure what he would say about your dreams-why does that not have the potential to negate your yiras shamayim)

Wednesday, August 08, 2007

Mazal Tov V

Another Mazal Tov goes to my wife's sister on her recent engagement. May she and her chosson be zocheh to build a bayis ne'eman b'yisroel.

(I would put up a link to onlysimcha.com but I think she would not be too happy).

Mazal Tov IV

I just wanted to wish a Mazal Tov to my other sister ( not this one, but this one) on the birth of a baby boy and his bris which will be tomorrow. May they have much nachas from him and he should grow l'torah v'chupah u'ma'asim tovim.

For the record this is Mazal Tov IV since this blog started.

Mazal Tov I, Mazal Tov II, Mazal Tov III

UPDATE: The Bris was this past Friday. Mazal Tov to Chaim Shlomo and his parents on his bris.

Monday, August 06, 2007

The Ramban and "al pi derech hapshat"

I noticed this week that there is an interesting machlokes how many aronos were made in the Midbar. (which hopefully will be the topic of another post). The Ramban brings a pshat based on Chazal that there were 2,1 Moshe made temporarily and one that Betzalel made. Once Betzalel made his , the aron Moshe made was hidden.

The Ramban then says "al pi derech hapshat..." there was only one aron -the one Betzalel made.

How is one to understand the Ramban when he says "al pi derech hapshat". Is he arguing that the metzius was not like Chazal?

Coincidentally (although it is probably more of a case of hashgacha than coincidence) for an unrelated reason I decided to take a look in the Sifsei Chaim on Emunah and Hashgacha this week and lo and behold he discusses this issue. He brings another case where the Ramban argues on Chazal al pi derech hapshat-in Vayigash when Ya'akov comes down to Mitzrayim. Chazal say that the famine stopped when Ya'akov came down and the last five years started after Ya'akov died. The Ramban says al pi derech hapshat it doesn't make sense but rather even after Ya'akov came down the famine went on for 5 years.

The Sifsei Chaim asks, hayitachen that the Ramban would argue on Chazal ? He goes onto explain that even when the pashut pshat in the posuk contradicts the halacha or the metzius, it is still important to know the pashut pshat so we can learn a lesson from it. For example, by the eved nirtza-it says bring the eved to the mezuza or door. Halacha l'ma'aseh we bring him to the door not the mezuzah. If that is so why does the pashut pshat tell us to bring him to the mezuzah? The answer is to remind us of the mezuzah by yetzias mitzrayim that had dam pesach and that we should be an eved l'hashem and not to people.

In a nutshell the Sifsei Chaim understands that even the Ramban would be modeh that the metzius is like the drashas Chazal i.e. the famine stopped right away when Ya'akov came down or in our parsha that there were 2 aronos. The only reason the Ramban writes al pi derech hapshat is to help us learn a lesson from the pshat. (although what exactly the lesson is in these 2 cases isn't clear)

I told this over to someone and he said it makes no sense - how can you say the drasha is more emes than the pshat. I figure that the academics, intellectuals and rationalists would totally reject this approach especially the part where he says that the Ramban would never argue on a drashas Chazal. I am curious what people have to say about this.

Friday, August 03, 2007

Laylah Lav Z'man Teffillin-Shittas HaRambam

The gemara in Menachos (36b) has a discussion whether one can wear tefillin at night. L'ma'aseh there is a machlokes rishonim over how to pasken. Tosafos (among others) holds "laylah z'man tefillin" while the Rambam paskens "laylah lav z'man tefillin". However, even according to the Rambam this halacha only applies to putting on tefillin at night. If one is already wearing tefillin then one can keep it on, but this is "halacha v'ein morin kein"-we don't tell someone they can keep it on but m'ikar hadin one is not obligated to take them off.

One interesting kasha that is asked on the Rambam is from a gemara in Berachos 44B. The gemara says that the b'nei ma'arava (people in Eretz Yisroel) would make a beracha before taking off their tefillin. Tosafos says that we don't make a beracha because laylah v'Shabbos z'man tefillin and there is never any chiyuv to take off our tefillin. However, the Rambam paskens laylah lav z'man tefillin so why doesn't he say to make a beracha on removing tefillin?

There are a few answers to this question.

1) The Beis Yosef (Siman 29) and Yam Shel Shlomo (Chullin Perek 6 Siman 2) answer very simply that since according to the Rambam you can leave on your tefillin that you were already wearing, no beracha is recited upon removing them. The B'nei Ma'arava held that it is even assur to keep your tefillin on when it becomes night.

2) The Netziv in Parshas Lech Lech Perek 17:13 in the Harchev Davar has another answer. According to one shitta in the gemara the chiyuv to remove tefillin at night is learned from a posuk "v'shamrata chuka m'yamim yamima". The gemara then has a machlokes whether "v'shamarta" is an issur aseh or a lav. The Netziv says that the B'nei Ma'arava held that it is an issur aseh and therefore you make a beracha on it. The Rambam holds it is a lav and therefore you don't make a beracha.

What is this Netziv doing in the middle of Parshas Lech Lecha in the parsha of mila?

The Netziv writes that there are 2 mitzvos in mila 1) to do the mila 2) an issur aseh on the father not to cover up the mila. The beracha of "l'hachniso l'briso shel Avraham Avinu" is a beracha made on this second mitzvah. The Netziv then asks, that this mitzvah is a shev v'al ta'aseh and where do we find that one makes a beracha on an aseh that is shev v'al ta'aseh?
The answer is from the sugyah of tefillin. We see the B'nei Ma'arava made a beracha on the aseh of not putting on tefillin. Even though it is shev v'al ta'aseh we can still make a beracha.