The obligation is to send away the mother bird before taking her chicks or her eggs. There is a positive commandment and a negative commandment. The positive commandment is that a person has to send away the mother bird before taking her eggs or her chicks. The negative commandment is the prohibition against taking a mother bird while she is resting on top of her chicks or her eggs. We’ll discuss these mitzvot (commandments) and their relationship to each other.
There’s a Machloket (dispute) among the Acharonim (later authorities) about when this mitzvah would apply. There are some opinions that say the mitzvah applies even if a person doesn’t want the chicks or the eggs. If he happens upon a nest, there’s still a mitzvah to chase away the mother bird and to take the chicks or the eggs, even if he doesn’t want them. There’s another side that says that if there’s no reason to send away the mother bird—in other words, if a person doesn’t want the chicks or the eggs—there would be no idea of the mitzvah. The mitzvah is only in play when somebody wants the chick or the eggs.
The Mishnah says that the mitzvah of Shiluach HaKen is chasing away the mother bird. The mitzvah of Shiluach HaKen applies whether you’re in Eretz Yisrael or outside the land, and whether the Beit HaMikdash exists or does not exist. It has no connection to the service of the Beit HaMikdash. It applies only to birds that have not been consecrated to the Beit HaMikdash, that have not been dedicated to the Beit HaMikdash. But birds that have been dedicated to the Beit HaMikdash are not subject to the mitzvah. Birds don’t have the ability to be sent away. The pasuk (verse) about this mitzvah says, “Send it away, send away the mother bird.” When dealing with birds that were dedicated to the Beit HaMikdash, they can’t be sent away; they have to be brought to the Beit HaMikdash. So the mitzvah does not apply to them.
We’ll compare this mitzvah, Shiluach HaKen, to another mitzvah involving birds, Kisui HaDam, covering the blood of an animal, after slaughter. The Mishnah continues: There are stringencies in the mitzvah of covering the blood compared with the mitzvah of sending away the mother bird, in the following way. The mitzvah of covering the blood applies to wild animals and to birds, whether the animal is readily available—that means it’s living in your house—or not readily available, meaning it’s living in the wild. The mitzvah of Shiluach HaKen applies only to birds, not to other wild animals, and only to birds that are not readily available, to birds that are not living in your house. The mitzvah of Shiluach HaKen says, “If a bird’s nest will happen to be before you,” meaning you’re seeing it; it’s not something that’s in your possession and readily available to you. We’ll define what that means.
What’s an example of not readily available, where the mitzvah of Shiluach HaKen would apply? An example would be geese or chickens that escaped from their owner’s home and are nesting in the orchard, in the pardes (orchard). The chidush (novelty) here is that even if they were owned at one point but are no longer in the house, the mitzvah of Shiluach HaKen still applies to them. They’re not right now within the possession of the owner, and they’re free to fly away. So these birds are considered mezuman, readily available, and the mitzvah would apply to them. Even more so, the mitzvah of chasing them away would obviously apply to birds that were never owned and are part of the wild, when someone comes upon birds on the road or in the woods. But if the birds did not escape and are nesting in the house itself, or if they are Herodian doves—Herod used to raise doves in his palace, and that’s why they’re known here as Herodian doves—they lived among people and don’t fly away. So they’re considered mezuman, readily available, and therefore patur miShiluach, they’re exempt. The person is exempt from sending away the mother bird before taking the chicks. They’re considered mezuman, and he’s allowed to just take the mother if he’d like to, or take the chicks if he’d like to. There’s no mitzvah to send away the mother bird in this situation.