01. THE SCOPE OF THE MITZVA

If a person happens upon a bird’s nest and wishes to take the mother bird as she broods over her eggs or chicks, he may not do so. The Torah forbids taking advantage of the mother’s devotion to her young as a means of capturing her. Instead, he must first drive her away from the nest until she flies off and no longer tries to return. Only then may he try to catch her as he would any other bird. Likewise, one may not take the chicks or eggs while the mother is brooding over them. Once he has driven the mother away beyond his reach, he may take the chicks or eggs. As it says: “If a bird’s nest happens to be before you along the way, in any tree or on the ground, with chicks or eggs, and the mother is brooding over the chicks or eggs, you may not take the mother together with the young. You shall surely send away the mother, and the young you may take for yourself, so that it will go well for you and you will live long” (Devarim 22:6–7).

The mitzva applies only to kosher birds – birds people normally eat. With a non-kosher bird, however, one may take the mother together with the eggs or chicks (SA YD 292:1). The mitzva is also limited to wild birds that do not belong to anyone, as implied by the verse’s phrase, “If a bird’s nest happens to be before you,” which refers to an ownerless place. If the nest is found on a person’s property, the prohibition does not apply, since the mother, eggs, and chicks belong to him, and he may take them whenever he wishes (Mishna, Ḥullin 138b). Thus, one who raises hens may remove a hen from her eggs, or take eggs or chicks from beneath a brooding hen. The same is true of doves in a person’s possession; he may take from them freely.[1]

If one violated this and took the mother while she was brooding or hovering over the chicks or eggs, he must set her free, thereby remedying the violation. If he slaughtered her, her meat remains permitted, but he is liable to lashes because the violation can no longer be remedied. The same applies if she died on her own: since he can no longer send her away and remedy the violation, he is liable to lashes (Ḥullin 141a; SA YD 292:6).[2]

[1]. If wild birds nest in a person’s courtyard or on his roof, the eggs or chicks do not immediately become his while the mother is still brooding over them. Although a protected courtyard normally acquires whatever is found within it on the owner’s behalf, here it does not, because by Torah law he may not take the eggs before sending away the mother. Once the mother leaves the nest even briefly, however, the courtyard acquires the eggs or chicks for him, and they enter his possession. From that point on, he may take them without sending away the mother (SA YD 292:2). Usually, within a day after a bird lays all the eggs it normally lays, it will leave the nest for some period of time. Below, note 5 explains that according to some authorities, if he stipulates when the birds begin building their nest that he does not wish to acquire the eggs and chicks, his courtyard does not acquire them; they remain ownerless, and he can fulfill the mitzva of shilu’aḥ ha-ken.[2]. If one violated the law by taking the chicks or eggs without first sending away the mother, or by taking the mother without the chicks or eggs, he has neglected a positive mitzva and violated a negative prohibition punishable by lashes (Minḥat Ḥinukh §545:1; AHS 292:19). Others maintain that the negative prohibition applies only when one takes the mother together with the young or eggs; if he took only one of them, he neglected the positive mitzva but did not violate the negative prohibition (Ḥakham Tzvi §83). In practice, lashes were administered only if witnesses first warned the offender that his act carried this penalty, and he heard the warning yet committed the transgression anyway.