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)

1 comment:

Eliezer Eisenberg said...

If R Usher Weiss agrees with the first shita, then what's the point of bringing anyone else down?