Hilchot Shabbat, the laws of Shabbat. We finished boneh (building), ohel (tent), and all that. We did it for the first time. There is much more to analyze, of course. You can stay on any of these halachot (Jewish laws) much, much longer than we are. Boneh and ohel are among the most difficult. It is hard to get the gedarim—the rules, basically. We did come out with a lot of halachah lema'aseh (practical halachah), however. Of course, we will go back to it again. This was the initial breaking of ground into those simanim (sections), and od chazon lamo'ed. We are not saying that we exhausted the subject. But again, we did come out with enough principles to arrive at some halachah lema'aseh that we did not know before.
Now we are going to move on to Shin Tet Zayin, which is a new subject, a little easier. The rules are much more defined, with fewer sources to confuse us. In boneh and ohel, there are so many different gemarot to reconcile and so many chilukim (distinctions) to make. A lot of those chilukim involve cutting cutting a hair. And tzeidah, trapping, is one of the Lamed Tet Melachot (thirty-nine forbidden labors).
Now, trapping—what is that going to affect me? Trapping on Shabbat is going to affect you in a lot of ways. You come home from the shul (synagogue), there is a dog in your house, and you close the door. Did you trap him? He was in the house. When the door was open, he could have escaped. You just walked in from shul. Your wife says, “Shut the door.” Boom, now the dog is trapped in the house. Is that tzad? And if it is not, why not?
You close the window, and there is a bug in the house, a yellowjacket flying around. You did not open the window to let it out; you closed the window. Now it is boxed into the house. Is that tzad? What about putting a cup over the yellowjacket in the sukkah (booth), which was the old practice? How did you catch them in those days? You put a cup over them. Tzad is asur (forbidden) on Yom Tov (Jewish holiday) as well. Is that tzad?
What about putting out a yellowjacket trap before Shabbat, knowing the bugs are going to go in and will not be able to get out? Is that tzad? Is setting a trap before Shabbat that you know is going to be activated on—? These are questions that come up in regular living, so these halachot have some application. We are not hunters and all that, but nonetheless, they do have some application. What about letting it out? We have to see whether it is wrong to let a bird out of a trap. Okay, so we will start.
It has Lamed Chet se'ifim (thirty-eight sections). Shin Tet Zayin, din isur tzeidah vechovel (section 316, laws of trapping and wounding). Chovel is another important halachah. That is causing a wound on Shabbat, causing bleeding. That is going to be the whole issue of brushing your teeth on Shabbat: whether your gums bleed. It is a simple question. Forget about toothpaste and all that other stuff. Let us say you have Shabbat toothpaste and a Shabbat toothbrush; leave all that other stuff aside. That is another halachah we have to talk about. But brushing your teeth when your gums are going to bleed—that would be a case of chovel, let us say. We have to see what the ramifications are.
Maybe you are fooling around in shul and you go over to your friend and do this, causing a black-and-blue mark. You did not mean to; you are joking around, you know what I mean? Or the guys are checking each other during basketball on Shabbat. Forget about the basketball, the muktzeh (set aside), and all the other stuff. A guy checks another guy, and the other guy gets a black-and-blue mark. What is a black-and-blue mark, basically? Bleeding inside. The blood just did not come out; that is the black-and-blue mark. Is that considered chovel, or does chovel mamash (literally) mean that the blood has to come out?
We have to go back to the Torah, where it says makeh aviv ve'imo (one who strikes his father and mother). What does makeh aviv ve'imo mean? Is it when the blood comes out, or does it include a black-and-blue mark? These are all subjects we are about to discuss.
Beshem Hashem na'aseh venatzliach. We are here now, rabotai (my teachers). Our travel schedule, Baruch Hashem, is finished. We did the tour last week and the tour the week before. Now we are here to study. We are here for Shavuot (Festival of Weeks), be'ezrat Hashem, and until Deal. I am going to Deal tomorrow, be'ezrat Hashem.
Okay, ot alef (letter alef). Tzeidah hi me'avot melachot. The question is: What is the definition of trapping something that is of a kind that is trapped? That is a very important klal (principle) we have already been given. Trapping min haTorah applies only to yeish bemino, an item that normally is trapped. K'lomar, shederech ha'olam letzudan (That is, the way of the world is to trap them). I guess not every single item is the derech to trap. So if you trap an item that normally is trapped, you are chayav (liable). If you did it b'mezid (intentionally), the punishment is sekilah (stoning) and karet (spiritual excision); if you did it b'shogeg (unintentionally), you are chayav to bring a chatat (sin offering).
Tzeidah was done in the Mishkan (Tabernacle). Where was trapping done in the Mishkan? They needed the chilazon, the fish that had the blue dye. Why? To dye with it techeilet (blue-violet dye). That was one of the colors, the turquoise. The turquoise came from the fish. So they had to catch the fish, and fish are something that are normally trapped. They had to throw nets into wherever they caught it—the Kinneret (Sea of Galilee), wherever it was—and pull out the fish. They trapped it, and they also trapped the tachash. The tachash was the unicorn, whatever animal it was. They needed the skins of this animal, so they had to trap it. They needed its skins to cover the Mishkan.
And they also trapped the s'lav (quail). When the s'lav fell, what did they do with the Mishkan exactly? Was that during the lunch break? They had to trap it. The Gemara says it is obvious that trapping the chilazon is trapping. But in the Yerushalmi, in Perek Klal Gadol, there is a pelugta (dispute): some hold that trapping the chilazon is not considered trapping. Why? You had to catch a fish. The reason is that since it is tola'at b'alma—merely a worm—it is considered ein bemino nitzod—people don't trap worms. It is not a fish! The chilazon is a worm, and people do not trap worms. Worms are not bemino nitzod. So it is not a Torah prohibition. It is a snail, exactly. It is a snail, so people do not collect or trap snails. It is like a turtle; you do not trap turtles. It is a slow-moving animal. So the conclusion is that trapping it is considered trapping. There is trapping here.
Okay, now let us go to bet. What would be a Toldot tzeidah, an offshoot of tzad? Trapping fish, trapping this—what is a toldah (derivative labor)? We did not find it explicitly in the Gemara or the Yerushalmi, but the Rambam (Maimonides), in Perek yud, din chaf-bet (chapter 10, law 22), writes: “One who sends dogs so that they will trap tzva'im (deer), arnavim (rabbits), and similar animals.” In the old countries, right, Isaac? They sent out dogs to catch rabbits. They sent the dog to catch the rabbit. I guess the rabbit was running around in the field, and they wanted the dog to catch it so it would not eat all the vegetables.
“And the tzvi, deer, fled from the dog.” Let us say the deer is running away from the dog. “And the person pursued the deer, or stood in front of it and frightened it until the dog arrived and caught it.” The person stands in front of the deer, the deer gets confused and stops, and as a result the dog is able to catch it. “This is a toldah of tzeidah, and he is chayav.” Wow, that is a toldah of tzeidah, and he is chayav! By standing in front of the deer, you caused it to be caught by the dog. He says you are liable. The same applies to someone who does this with ofot—chickens, birds: you box the bird in so another animal can catch it. That is also considered a toldah (derivative labor) of trapping. Ad kan l'shono (Thus far his words).
His words refer to a case where you commanded the dog, where you told the dog, “Go! Go get them!” In other words, you clicked tell the dog to go do it. If the dog is doing it on its own, what does he want from you? You are mesayei'a the dog in its labor—you’re helping the dog. But if you did not assist it and only sent it to trap, there is no Torah prohibition, only a shevut (rabbinic restriction), a rabbinic prohibition. The reason it is a Torah prohibition here is that you are involved in the trapping process; you are active.
This is what Rema (Rabbi Moses Isserles) writes in se'if bet: “One who sets a dog after an animal on Shabbat is tzeidah.” Good. “And some say that even during the week it is forbidden because it is a moshav leitzim (gathering of scoffers).” Wow, even during the week you cannot send a dog to catch the—I guess it was like a sport, like the cockfights and all those other things they used to do in the old days. You are making a sport by sending the dog to catch a rabbit or a chicken, and everybody is betting who is going to win. They are saying that even during the week you should not do that; it is a moshav leitzim.
The Rema is explaining that when he says it is forbidden on Shabbat, it depends: if you are helping the dog, then it is a Torah prohibition; if you are not assisting it, it is rabbinic. When he says that some hold it is forbidden even during the week, he means specifically when it is done with dogs. You are sending dogs to do it, and that is called a moshav leitzim, so you should not do it during the week. But a person may trap an animal himself if he needs it for his work. Of course, you are allowed to trap; it is just the way you are doing it, like a sport, that is considered a moshav leitzim.
Now listen to the Gemara, rabotai. Do not misinterpret it. He is talking about sending a dog to get a chicken. He is not talking about football. Football might be different. Football games and organized sports are not necessarily a moshav leitzim. Just sending a dog to chase a chicken is already forbidden during the week. I do not want you to extrapolate from this that a tackle, a sack, or fights are the same. Anyway, using dogs is considered a moshav leitzim.
“And he will not merit seeing the joy of the livyatan.” Wow. The guy watches dogs chase chickens as a sport; he will not see the enjoyment of the livyatan. I guess the livyatan is a fish that gets trapped. You are involved in illegal trapping behavior, so you will not benefit from the livyatan fish that will be trapped when Mashiach (Messiah) comes. How do I make that midah keneged midah (measure for measure)? Why did they get him on the livyatan, then? What is the midah keneged midah? The guy is a leitz (scoffer), so he cannot eat the livyatan because of the lamed in livyatan and leitz? I am trying—no, I do not know what I am saying. I am just trying to find a midah keneged midah. He does trapping that is forbidden, so he will not benefit from the livyatan that is trapped. Okay. Not a problem. Go deeper.
Hacham Steve, baruch haba (welcome). You have to be here more often, please. We enjoy your presence. Okay, kavod (honor), gimel. The Rambam writes that anyone who traps an animal of a kind that is normally trapped is liable, such as wild animals, birds, and fish. Bingo! Wild animals means, I guess, certain kinds of animals, deer. Birds are chickens and birds; people trap birds all the time. And dagim, fish, are the most common thing people go after.
Fishing on Shabbat: what could the prohibition be? A Torah prohibition. It is not like a guy sitting by the pond—he lives on the lake, let us say there is an eruv (Sabbath boundary)—and he takes a stick that he meyached (designates) before Shabbat as a keli (utensil), shemelachto le'issur, letzorech gufo? It is not issur; it is a keli shemelachto leheiter (utensil used permissibly). Let us say there are no worms, no bait that is muktzeh. On Shabbat he just drops it into—What avon (transgression) did he commit? He is trapping, catching a fish out of the water; that is considered trapping. Or what about putting out a net? Could you put the net out before Shabbat, so the fish go in on Shabbat and you pull it out Motza'ei Shabbat (Saturday night)? Yishtabach Shemo, I have the catch! Melaveh malkah (post-Shabbat meal). Chazak uvaruch. Yosef Mokir Shabbat (Joseph who honors Shabbat).
The Rambam says the animals must be trapped in a place where they are no longer mechusar tzeidah—lacking trapping. That means trapping requires bringing them to a place where they are confined. If I bring them to a place where I still have to trap them there because it is a big area, then that is not considered trapping. Trapping means bringing them to a place where they no longer need to be trapped; they are trapped.
For example, he chased after a deer until he brought it into a house or a garden and shut the door. Once he shuts the door, where is the deer? It is trapped; it cannot get out. It is in a confined area. Before that, even in the garden, it had an escape. No, so the fly, where are you going to put a fly? A fly can always escape, fly in a house maybe, but I'm talking about a deer in a garden. The door was open. You are right, you brought it to a more confined place, but it can still escape through the door. Once you lock the door, you have trapped it.
Or he shooed a bird until he brought it into a coop and shut the door. That was probably in the old days, when they wanted the birds to go back into the coop. They shooed the bird in and locked the door on it. Boom, you trapped your bird. Or he took fish from the sea and put them into a sefel, a bucket of water. Now you have confined the fish; it is trapped. Just catching a fish in the water is trapping, because it cannot go anywhere. It is on the hook; it is trapped, it is stuck, it cannot go anywhere. Here he is talking about taking a bucket of water into a pond and scooping up little fish. That is a common case: a guy wants to make netilat yadayim and is there, wants to make the water—yeah, right, we will make netilat yadayim in the water. He takes a cup and scoops like this, and suddenly he sees, “Oh, Tashlikh! We caught a fish!” That is a Torah prohibition. You cannot pour it back. Obviously. I am talking about my case: you scooped like this and caught a fish. This person is liable.
But if he shooed a bird into a house and shut the door, or shooed a fish out of the sea into a pool of water, or chased a deer until it entered a large hall—a big ballroom, a rotunda, Yankee Stadium, Javits Center, whatever it is, in a building—and shut the door, he is patur (exempt). It is not complete trapping. It is forbidden rabbinically, but it is not a Torah prohibition, because if he wanted to get the animal, he would still have to chase it. You did not trap it yet. When I put the fish in a bucket, that is it; it is not going anywhere. It is in the bucket. In a small garden, when I lock the door, that is it. But a bird in a house? Gary is talking about a bird in a cage; that is another story. A bird in a cage, I understand. But a bird in the house is running all over the place. It is not really trapped; you still have to catch it. That is called still requiring capture.
Is there a threshold? He is going to give one. How many lunges do you have to take to catch the animal? How big can the area be? The Gemara gives the parameters. The point is that as long as the animal is still requiring capture, you are not liable, because that means you did not trap it. If it no longer requires capture, that means you finished trapping. If it is patur, it is probably patur aval asur (exempt but forbidden). “Probably”? Definitely, Hacham.
Therefore, one who traps an ari (lion) is not liable until he brings it into its cage. Ah, the guy works for Barnum & Bailey Circus. The guy traps a lion; they released all the animals into the wild. Yeah, that's okay, so mah nafshekh (either way)? But in the old days, when they used to trap lions, you were not liable until you put the lion in its cage. A lion outside its cage is not trapped. I mean, I do not know if it is trapped in the cage either.
Here are the parameters, Steve. In any place where, if the animal ran, you could reach it in one lunge, that means it is already trapped. You understand the rule? If the area is so confined that you just have to grab it in one lunge, it is already trapped. That is trapping by Torah law. Or if the walls are so close together that their shadows meet in the center. The area is very confined and narrow. The shade of one wall and the shade of the other overlap in the middle. That is another way of describing a small, confined area. That is considered trapped. The walls are very tall. They could be a mile apart if they are really tall; it does not necessarily matter. There is a standard, so we will see. Read it again? Okay, continue. Good.
Four. The Rambam did not distinguish between one bird and another; he said birds are considered trapping. The Tur (Arba'ah Turim) also did not distinguish between them. The Gemara, however, distinguishes between different kinds of birds. For example, it distinguishes between a tzipor dror, a free bird, and other birds. Other birds are considered trapped when they are in the house. But there is a wild bird called a tzipor dror that runs around. Even if you put it in the house, it is not really trapped yet, because it needs more room. The Gemara distinguishes based on the bird’s mobility.
Only the tzipor dror does not accept marut, like mastery. It does not accept a master because it runs around and escapes from corner to corner. The Gemara says a tzipor dror is not trapped until you put it in a cage. Other, less active birds are liable once they are in the house. But the Rambam does not make this distinction. That is the problem here.
As the Beit Yosef (House of Joseph) writes in se'if alef, and this is his wording: “One who traps a bird in a cage in which it is trapped, and other birds in a house.” So he distinguishes between the tzipor dror and other birds. In any case, the Rambam and the Rif (Rabbi Isaac Alfasi) do not hold that way; they do not distinguish between birds. The Rambam did not make a distinction. They go by the standard and say that if you trap any bird in the house, you are liable. What about the tzipor dror? That is the only one for which you would not be liable, but the Rambam did not make that distinction. The Rif and the Rosh (Rabbeinu Asher) did not rule that way, because they hold that the Gemara’s discussion of the distinction is merely an answer, not the conclusion. The conclusion is not that way.
Now it seems to me that Maran (the author of the Shulchan Aruch (Code of Jewish Law)) holds that a bird in the house is not considered trapping. Why not? I guess because it can still run around. It can still run around, as we learned. Likewise, a fish in a pool and a deer in a hall: nevertheless, when you trap it there, he says you are not liable. Wow, that is a big chiddush. You sent the bird into the house; we are saying the house is not really considered trapping because the bird is flying all over the place. No problem. Now suppose I trap it from there. I would have said I am liable, because once you say it is not trapped yet, when I trap it in the house I should be liable. He says no: when you trap it from the house, you are not liable.
Even though trapping was not completed in the first place, seemingly, if it was not trapped, you are trapping it now. Nevertheless, to call this trapping now is not appropriate, because it is already semi-confined. It is possible to say that if the first person did not trap it, the next person who traps it is liable. But if the same person did everything, perhaps he completed his labor: he did half of it and then the other half. In any case, chazak. He is saying it is possible that either way he performed the trapping and is liable. It is obvious that if there are two people, he is exempt. But putting it into the first house is not trapping. No, it is rabbinic. Why did he do it? Okay, fine. You are right, but he wants to know about the ruling.
The view of the Tosafot in Beitzah is that whenever it was not trapped beforehand, if you trap it now, you are liable by Torah law. Simple principle. See there. That is not what we just said, obviously. Their words in Shabbat make it clear that this derivative of trapping is not complete trapping, but it is still the primary labor. Perhaps Tosafot hold that the real trapping is actually capturing the animal, and a derivative is something that is quasi-trapped and then you finish trapping it. That could be considered a derivative. It is quasi-confined: it cannot get out of there. But if it is not completely at a person’s disposal and you still have to chase it in that place, that is a derivative of trapping.
However, from the Rambam’s wording about a bird in the house, it is not complete trapping; that seems to support our point that it is still trapping, just not complete trapping. Maran’s wording, which we are going to see in a moment, is that a bird in the house is not complete trapping. It sounds like it is trapping, just not complete. So he wants to make a diyuk (inference from wording) that if you trap it after that, perhaps you will not be liable, because you already trapped it to some extent. It is not fully trapped yet, and therefore trapping it there is clearly not complete trapping.
Let us open the Shulchan Aruch, rabotai. An important halachah comes out in this section for all the laws of Shabbat. These laws of pesik reishei (inevitable consequence), eino mitkaven (unintended action), and gerama (indirect causation) are all going to come from here. There is great benefit in learning this properly. We will need tractates of Shabbat and to learn the Rif and the Ran inside; some great principles for all of Shabbat come out of it. But let us start with alef. We are not up to what I just mentioned. I will read alef.
“One who traps a tzipor dror in a cage in which it is trapped, and other birds and a deer in a house or an enclosure in which they are trapped, is liable.” So Maran is already mentioning the dror, while the Rambam never mentioned a distinction between dror and other birds. The tzipor dror has to be in its cage; other birds are considered trapped if they are in the house. “And if it is not trapped there, he is exempt but forbidden.” Open the Mishnah Berurah (Mishnah Berurah commentary), chachamim. Let us read it.
What does trapping mean? Yachya, would you like to read for us? “He opened the cage door and made a tachbulah (stratagem) so the bird entered it, and then closed it.” Easy. He opened the birdcage, made a stratagem to get the bird into the cage, and then closed the door. That is how you trap it, simple. Even though you did not catch the bird in your hand, you snap and the bird is moving in the cage, then boom, you close the door. That is trapping.
But if you brought it into the house—even a small house, and even if its windows are shut—that is still not considered trapped. Why? Because the nature of the tzipor dror is that it does not accept mastery and it goes around the house as if it were in a field. Exactly: in the house it is like it is in the field. It jumps all over the place and escapes from corner to corner, and you cannot catch it. Therefore, trapping it is not a Torah prohibition.
In a wooden cage made like a large coop, or in an enclosure surrounded on all sides, the bird is trapped. As for other birds and a deer—what does it say? “The wording indicates that it is discussing them separately.” For birds, and likewise other birds, you are not liable until the enclosure and the house are roofed and the windows are shut, because otherwise it can escape through there. With a deer and other animals, you are liable even if the place is not roofed and its windows are open.
So you have to set it up this way: other birds in the house, then return to the deer in the enclosure. That is what it means by discussing the cases separately. Yes, the bird is in the house and the deer is in the pen, because a bird in a pen is not trapped; it can fly away. Walls do not mean anything to a bird. Fine, that is the reason the cases are discussed separately.
Now look at daled. It says that it is not trapped there; therefore, you are liable. The Mishnah Berurah says that the same law applies to a very large house or enclosure where you cannot catch the animal in one lunge. Ah, as opposed to a very large house where you cannot catch the bird in one lunge, then you are not liable. Are you talking about a domesticated bird, or just a regular bird? Any bird. I do not know—domesticated, a parakeet. It has its house; you can put it back in? Before we get to questions like that: you can run and catch it, but you have to stop and rest first. If you can catch it in one lunge, that is okay; it is not considered trapping by Torah law.
The Mishnah Berurah says that even though it is roofed, the one who traps it there in the house or enclosure is liable by Torah law. Remember how the Aruch Hashulchan (Table Set in Order) went back and forth about the consequences? He holds that it took the totza'ot (consequences) into account. Chazak uvaruch. Exactly. See later, Mishnah Berurah se'if katan nun chet: one who takes a fish from the sea and puts it into a sefel of water is chayav. Clearly. You put the fish in a bucket; you are liable. That is trapping. We did not kill the fish. Killing the fish is a different transgression. We are talking about a fish that is still alive. So you could not do this on Yom Tov either. The bird is still alive, by the way. Tzeidah is not rotze'ach (murderer) here. The fish is still swimming in the basin. You could not do this on Yom Tov either. Exactly. On Yom Tov you cannot trap fish either, although ochel nefesh (food preparation) is permitted to a certain degree. They did not permit all food preparation.
They mention a basin of water because if you just took out the fish with a hook, of course that is trapping. They want to tell you that even if you put it in a basin of water, where it is swimming around, that is trapping. Chazak, chazak, chazak.
But if he chased the fish into a small pool next to the lake, that is not trapping, because it can still swim all over the place and you are not going to catch it. See later in the Mishnah Berurah, se'if katan lamed gimmel. As for trapping a lion, the lion is not liable until you bring it into a cage. That means it is confined there. Beautiful.
Now Maran says, if it is not trapped there, it is exempt but forbidden. Throughout this section, therefore, a tzipor dror that entered the house through the door or window is not trapped there. Nevertheless, it is forbidden to close the door or window. Wow. The bird went into the house. We said that a tzipor dror is not trapped because it runs around. Nevertheless, rabbinically, it is forbidden. So if the tzipor dror jumped in through the window and all you did was close the window, you committed a rabbinic prohibition. Or you closed the door.
What if I cannot chase it out of the house if it flies in? Forget about chasing it out. It is in the house now. But it is a tzipor dror. Okay, that is a rabbinic prohibition. So what, every time a fly jumps into the house and I close the door? A regular bird is a Torah prohibition. A regular bird would be a Torah prohibition, but a tzipor dror would be rabbinic if I close the door. That is what he is saying here.
When it is cold, or there is another discomfort, the Chayei Adam (Life of Man) writes that it is permitted to close the door if your kavanah—your intention—is only to protect yourself. Here we go! We found it. It is freezing cold. The bird jumped in through the window, let us say, and now you want to close the window. You are freezing, but you cannot close the window: the bird is in the house, and that is a rabbinic prohibition, a desecration of Shabbat. You are freezing cold, two below zero, and then he gets pneumonia and dies, but the bird is a tzipor dror running around in the house. An unintended action is permitted.
The Chayei Adam says you can close it as long as your intention is not to trap it. But what about an inevitable consequence? What about an inevitable rabbinic consequence that is lo nicha leh (he does not want it) and lo ichpat leh (he does not care)? You are starting with all that Torah already. Here it is: you have an inevitable consequence. You close the window, and the bird is trapped. But it is an unintended action involving a rabbinic prohibition, because a tzipor dror is still flying around. He does not want to trap the bird at all. Since there is no Torah-level trapping, even though it is an inevitable rabbinic consequence, it is permitted. But with another animal or bird for which trapping in the house is a Torah prohibition, it is forbidden.
Correct. A regular bird, a pigeon, flies into your house and you want to close the window for whatever reason—no, you cannot close the window. No, a pigeon is a free bird, isn’t it? Is a pigeon a dror? You have a command over it when it comes into your house? No, no bird really listens to me, but I am just saying that some say a tzipor dror is a—You cannot catch a pigeon? So if it is a slow package, a pigeon? A mockingbird. It looks like you could catch it easily. We will go through the names of the birds. We will have a class trip to Petland Discounts after we finish trapping, to learn about the birds.
But in principle, forget about the names of the birds. If it were a Torah prohibition, you could not close the window and say, “I did not intend to trap it.” How can you say you did not intend to? Because you can catch it in one lunge? If it is a Torah prohibition, you cannot say it was an unintended action. We said that a regular bird in the house is a Torah prohibition because you can lunge at it and catch it in one lunge. But he does not want to keep it. You are right, but it is still a Torah prohibition. Once it is a Torah prohibition, you cannot say it was an unintended action. He hates it; he is upset. Okay, fine, with all that, it is still an inevitable consequence. When I open the refrigerator, I hate the lights going on. I hate everything; I hate Amalek, I hate—That is not going to help you, honey. It is a Torah prohibition, the light. You cannot get around an unintended action when it is a Torah prohibition. With a rabbinic prohibition, then you start discussing, “He does not want it; he does not care about it.” That is what he says.
By the way, I am sure Gary’s book is going to go to town on this. The three, the three is Eli Asulan’s point: there is no distinction for this purpose between a tzipor dror and an ordinary bird, since our homes are large. We are not liable for trapping in the house if you cannot catch the bird in one lunge. When a regular bird flies into your house today, closing the door would be rabbinic, because we do not live on Gilligan’s Island in a small hut where we could trap it. Our homes are big. You have to chase it, who knows, with a broom. Therefore, any time a bird flies into a house today, trapping it will be rabbinic. So closing the door—not because you want to trap the bird, but because it is cold, or because you want to go to sleep at night and there are robbers—
Would you leave the door open on Friday night? You open the door on Friday night to get some air into the house during dinner. The hotplate is on, the candles are hot; sometimes it gets hot where you are eating. Okay, open the front door and let some air in. A bird flies in and does not want to go out. It is 11:00 and I want to go to sleep. Okay, rabotai, leave the door open. shefoch chamatcha el hagoyim (Pour out Your wrath upon the nations); it is Pesach (Passover). Leave the door open, put the kos shel Eliyahu HaNavi (cup of Elijah the Prophet) on the table, and leave the door open. It is uncomfortable to leave the door open all night. It is an inevitable consequence, although it is an automatic reaction, but it is rabbinic, and he does not want it, as Steve said. So I get out of it. And by the way, this is where we learn that rule. The rule is discussed here. This is where it is discussed.
Now you want to discuss birds? Open Gary’s book. Number one? Yes, number one. One who encounters a ken, a nest, on Shabbat, with the mother sitting on the chicks: is he obligated in the mitzvah (commandment) of shiluach haken, shooing the mother bird and taking the eggs? On Shabbat, are you obligated to do it? Assume there is an eruv and whatever else you want to say. What is the prohibition there, muktzeh? The eggs are seemingly muktzeh. Maybe the bird is muktzeh. Ba'alei chayim (living creatures) are muktzeh. So you do it without touching it; you just shoo it away. You had to know. Right, because if it is a safek (doubt), you cannot pick it up. It is a very funny case.
The Chatam Sofer (Seal of the Scribe) writes that one need not even rely on the reason given by the Zohar Hakadosh (Holy Zohar): that the purpose of shiluach haken is to create hit'orerut lema'lah (arousal above), arousing the yelalah (wailing) of Imma Ila'ah (Upper Mother) over her children. The mother bird cries for her chicks, and that causes Imma Ila'ah to cry for us. On Shabbat and Yom Tov, it is forbidden to arouse yelalah above. Ah, according to the Zohar, there is no shiluach haken on Shabbat.
Even according to nigleh (revealed teaching), according to the Rambam you have to catch the bird in your hand. If it still requires capture, that is trapping, and you are liable to bring a chatat. Let us say the nest is just sitting in a public domain, and you grab the mother bird and shoo it away—bingo, you trapped it. Forget about muktzeh; you committed a Torah prohibition. You trapped the bird. The Rambam holds that you have to grab the mother bird, take hold of the bird, and throw it away.
Even if it does not still require capture, it is muktzeh. But according to those who hold you can send it away belo negi'ah, without touching it, by making a noise and shooing it away, perhaps one can be lenient on Shabbat. What am I doing? I am not trapping; I am shooing the bird away. I did not grab it in my hand. He adds that since according to the Rambam you do not fulfill the commandment without touching the bird, and you have not fulfilled the commandment in this way, you are causing tza'ar, distress to the birds, for no purpose. What is better to do? We are decent people, rabotai.
Petach Hadvir (Gate of the Courtyard) points out that if it does not still require capture, you do not find a case of shiluach haken, since it is mezuman (readily available). That is Benny’s question. If it is already trapped, if it is in a place where it is confined, then there is no commandment at all. The whole commandment of shiluach haken applies on the road, in a place that is open. There is no case where it is already trapped. If it is already trapped, it is not shiluach haken.
He cites some of these matters in Kaf Hachayim (Palm of Life), and adds that according to the Rashash (Rabbi Shalom Sharabi)—that is kabbalistic teaching—for example, the Rashash says not to perform shiluach haken during the Omer (the Omer period). Do you leave the bird today? Yishtabach Shemo. We have seen this based on what is done in Eretz Yisrael. Some righteous people say not to perform the commandment of shiluach haken at certain times, such as during the forty-nine days of the Omer, or from Rosh Hashanah (New Year) until Shemini Atzeret (Eighth-Day Assembly). So you cannot have intentions. Whenever there are no kavanot (intention), you cannot do it—I guess the whole thing is to arouse Imma Ila'ah, and that is already the intention. If there are no intentions, why are you wasting your time? Save it for a better time. We have to see whether the Kol Yaakov (Voice of Jacob) siddur gives us the intentions for shiluach haken. They have it in the section for berachot shonot, all these berachot that you do not find.
It is likewise not applicable on Shabbat and Yom Tov. However, Chazon Ovadia (Vision of Ovadia) writes that if it does not still require capture, you can fulfill the commandment on Shabbat, because a Torah commandment overrides the rabbinic prohibition of tiltul (handling) muktzeh. Yishtabach Shemo! Hacham Ovadia said you pick up the bird—in a case where it is already trapped, in a confined area, let us say. Hacham Ovadia said, “What, it is muktzeh? Muktzeh is rabbinic, and shiluach haken is a Torah commandment. This Torah commandment overrides muktzeh.” Trivia question: when can you move an animal on Shabbat? See, it is the other way around. He apparently holds you can perform shiluach haken when the bird is already trapped. He disagrees with the Pitchei Teshuvah (Gates of Repentance), exactly. Why not just shoo it away? Why do you have to—? Because the Rambam holds that you have to actually grab the bird. That is what the Rambam says. We always learned that you take a broom; that is what the Ashkenazim (Ashkenazi Jews) told us. But according to the Rambam, you have to catch the bird. He gives much more spoons if you can use the broom. Chazak uvaruch, chazak uvaruch, one hundred percent. That is just a question there.
Now look at the case of one who had a tor or a ben yonah (young pigeon) trapped by a non-Jew on Shabbat. Afterwards he instructed the non-Jew to put it in a glass enclosure, an aquarium or something. He violated the prohibition of amirah le-goy (instruction to a non-Jew) twice: first, he trapped it, and second, he put it in the cage, which is another act of trapping. And even if he then opened the window so the bird would escape, that does not undo the prohibition of trapping. In other words, after he did this he said, “What did I do? Let me open the window so it flies away.” That does not undo the transgression. You understand? Like—“Re-mix water and milk.” Did he make borer (sorting)? No. He turned on the light and shut it. That is another issue. He undid it quickly, toch kedei dibur (within brief speech-time)—the three second rule! The three second rule does not help. Bottom line, you transgressed.
Now a side point for all the animal rights activists in the group: the keeping of birds that are not tahor (ritually pure). Are you allowed to have birds in your house that are not pure, such as a tuki hamedaber, a parakeet, or birds that make kol zimrah (melodious song), like a hummingbird or a canary? The Beit Yosef writes in Yoreh De'ah (Teach Knowledge), in the name of Orchot Chayim (Ways of Life), that it is permitted to raise and keep them, since they are not intended for food. Who is eating the bird? The Chida (Rabbi Chaim Yosef David Azulai) likewise writes in Shiyurei Berachah (Remnants of Blessing) that this is what people rely on when raising impure birds that make a melodious song.
Otherwise, you have a problem with your fish, by the way. Are all these fish we have in our tanks kasher (kosher)? You have a whale in your tank. Plenty of people have those little—piranhas! Exactly, piranha! What do you do, put your hand in there? What do you do with it? How do you feed them? Human flesh—put your neighbors in there! There we go, that’s what—you see, piranhas!
Also see Ali’s basement, and see Rashi in Bava Metzia (The Middle Gate), daf kaf-dalet amud bet; Ma'aseh Ish (Deeds of a Man); the responsum She'elat Ya'avetz (Question of Ya'avetz); Beit Bo'az (House of Boaz); Chazon Ovadia Shabbat, in several places; and also the discussion regarding a sus (horse) and the raising of an arnevet (rabbit). Rabbits—shefanim (hyraxes)—what is that, hamsters and all those gerbils and all those kinds of non-kosher animals? Okay, so bottom line, can you have them? It is like, is it a travesty? At school, you have them. So bottom line, you are allowed to have them in your house? Basically, you are allowed to have them in your house.
Okay, so that is halachah alef. That is it. We will stop here; that is the end of the halachah class. Baruch Hashem le'olam amen ve'amen.