Chullin 141a (קמא.) — the Talmud in English

Let it teach:

if she is sitting among

the branches of a tree

it is exempt, even though she is sitting in her place.

And

we would know from this

all the more so

that one is exempt when she is

flying,

as she is not sitting at all!

The Gemara answers:

It was necessary to state the case of a flying bird

to teach us

that even if its wings touch the nest, one is exempt from sending it away.

This is not so with regard to a bird sitting among the branches of a tree, for which one is exempt because it is not touching the nest at all; therefore, one cannot derive the law of a flying bird from it.

The Gemara objects:

But didn’t we learn in the Mishna: When its wings touch the nest—

he is obligated to send it away—

and how could you say that the beraita teaches that even if its wings touch the nest, he is exempt?

Rav Yehuda said: When the Mishna teaches

that he is exempt, it is referring

to touching from the side.

We learned in our Mishna:

There is no chick there, etc.

One of the Sages said to Rava:

And

perhaps say the opposite: If there is no chick there, but only one chick or one egg, he is exempt from sending the mother away, since we require “chicks or eggs,”

that is, several,

and there are not several.

But if

there were fledgling chicks or addled eggs there, he is obligated to send the mother away, as it is stated: “a nest.” A nest, in any event!

He said to him:

If so, let the verse write: “and the mother is crouching over them,”

and

why

did the verse need to state

“and the mother is crouching over the chicks or over the eggs”?

You must conclude that it is

to juxtapose chicks with eggs and eggs with chicks,

to teach the law stated in our Mishna, that in the case of addled eggs and fledgling chicks one is exempt from sending the mother away. But if you expound the verse in the opposite manner, there is no need to juxtapose chicks with eggs and eggs with chicks, and it would be difficult to explain why both are written in the verse.

Mishna:

If he sent her away and she returned,

and he sent her away again, and she returned,

even

if he did so

four or five times, he is obligated

to send her away, and he may not take the mother together with the young.

As it is stated: “You shall surely send away the mother.”

The repetition of the expression “send away you shall send away” teaches that he is obligated to send her away even several times.

He said: “I will take the mother and send away the young!”

He cannot do this. Rather, he is

obligated

to send away the mother,

as it is stated: “You shall surely send away the mother.”

2. If he took the young and returned them to her,

to the nest,

and afterward the mother returned to them, he is exempt from sending the mother away

again, and he may take the mother together with the young. Since he had already taken the young, the nest is considered “prepared,” and he is exempt.

Gemara:

One of the Sages said to Rava:

From where is it known that he is obligated to send her away even four or five times?

Perhaps “send away”

indicates one time,

“you shall send away”

adds that even

two times

he is obligated to send her away, but we still have no source for the obligation to send her away more than twice.

He said to him:

Rava said to him: The obligation is not derived from the repetition of the expression “send away you shall send away,” but from the meaning of the expression

“send away,”

from which they learned that

even one hundred times

he is obligated to send her away.

But

“you shall send away”

is written for another exposition:

I have derived

that he is obligated to send her away

only

when he wishes to take the mother together with the young

for an optional purpose,

for his own needs. But if he needs her

for a mitzva purpose,

such as the nest of a woman who has given birth or the birds used for the purification of a metzora,

from where

do we know that he is obligated to send her away?

The verse states: “You shall send her away”—in any event,

even for a mitzva purpose.

Rabbi Abba, son of Rav Yosef bar Rava, said to Rav Kahana: “Is that to say that the reason is that the Merciful One wrote ‘you shall send her away,’

and for this reason they learned that he is obligated to send her away even for a mitzva purpose?

If not for this, we would have said

that

for a mitzva purpose he is not

obligated to send her away?! But sending away involves

both a positive mitzva and a prohibition:

“You shall not take the mother together with the young” is the prohibition, whereas “You shall surely send away the mother” is the positive mitzva.

And the positive mitzva

of “and he shall take for the one who is to be purified,” stated regarding the birds of a metzora,

does not override

the

prohibition and positive mitzva

of sending away the mother?!

The Gemara answers:

It is necessary—

the case is one in which he

violated

the prohibition

and took the mother, for he has already violated the prohibition [he has already transgressed it], and only the

and only

positive mitzva

of “you shall surely send away”

is present.

And it might have entered your mind to say:

Let the positive mitzva

of the metzora

override the positive mitzva

of sending away, and he need not return and send away the mother.

It teaches us

that the positive mitzva of the metzora does not override the positive mitzva of sending away, and he must return and send her away.

The Gemara objects:

This works according to the one who teaches

that wherever there is a prohibition whose rectification is through a positive mitzva, the matter depends on whether

“he fulfilled it or did not fulfill it,”

that is, if they warned him not to take the mother and he transgressed their warning and took her, then if he “fulfilled” the positive mitzva “you shall surely send away” within the time needed to utter the warning, he has not violated the prohibition at all, which is why the verse transformed it into a positive mitzva. But if he “did not fulfill it” within that time, he violated the prohibition and is obligated through positive action to perform “you shall surely send away.” If so, in the mitzva of sending away there is only a positive mitzva, without a prohibition.

But according to the one who teaches “he annulled it and did not annul it,”

the prohibition is violated only if he completely nullifies the positive mitzva—for example, in the case of sending away the nest, when he nullifies it only by slaughtering the mother, in which case he certainly can no longer send her away. But as long as he has not completely nullified the positive mitzva, he has not violated the prohibition. If so,

as long as he has not slaughtered

the mother, even though he took her,

he has not violated the prohibition,

since he can still send her away. If so, there are both a prohibition and a positive mitzva here, and how can the positive mitzva of the leper override it?!

Furthermore, according to Rabbi Yehuda, who says

below that

“send”

indicates from the outset,

the verse is to be understood as follows: “Do not take the mother together with the young; rather, send her away before you take the young.” If so, if he transgressed and took her, he violated both the prohibition and the positive mitzva, since he did not send her away from the outset, and

there is not even a positive mitzva,

since the positive mitzva was not given in order to rectify the prohibition?!

Rather, Mar bar Rav Ashi said:

Here we are dealing

with a case in which he took

the mother

with the intention of sending her away

immediately.

There is no prohibition,

since he intends to send her away; there is only

a positive mitzva,

since the positive mitzva of “You shall surely send away the mother” rests upon him,

and

it might have entered your mind that

the positive mitzva

of the leper should

override the positive mitzva

of sending away the nest. The verse “You shall send away” teaches us that it does not override it.

The Gemara asks:

What is the greater strength of this positive mitzva

of the leper

over that positive mitzva

of sending away the nest, such that it might have entered your mind that it should override it?!

It explains:

It might have entered your mind that, since the master said: Great is the peace between a man and his wife, for the Torah said that the Name of the Holy One, blessed be He, which was written in sanctity, should be erased in the water

in order to make peace between a man and his wife. For the scroll of the sota, in which the Name of God is written, is erased in the water in order to purify her for her husband.

And this leper, since as long as he has not been purified

from his ritual impurity,

he is forbidden marital relations, as it is written:

concerning the leper,

“He shall dwell outside his tent for seven days,”

and they interpreted:

“His tent”—this refers to his wife. From here

we learn that the

leper is forbidden marital relations.

What might one have said? Since he is forbidden marital relations

until he becomes pure,

the positive mitzva pertaining to him should come and override the positive mitzva of sending away the nest,

in order to purify a man for his wife.

The verse teaches us

that it does not override it.

Mishna:

One who takes the mother together with the young, Rabbi Yehuda says: He is lashed

because he violated the prohibition,

and he does not send her away

any longer.

And the Sages say: He sends her away

now, the mother,

and he is not lashed.

This is the principle,

the Sages said:

With regard to every prohibition, in which there is

a command of

active fulfillment,

such as sending away the nest, which contains the prohibition “Do not take the mother together with the young” and the active positive mitzva “You shall surely send away the mother,”

one is not lashed for it.

Rather, he fulfills the positive mitzva and thereby becomes exempt.

Gemara:

Rabbi Abba bar Memel raised a question:

Does

the reason of Rabbi Yehuda

that “he is lashed and does not send her away” derive

from the fact that he holds that one is lashed for a prohibition severed by a positive mitzva? Or perhaps, ordinarily,

in fact,

Rabbi Yehuda holds

that

one is not lashed for a prohibition severed by a positive mitzva. But here, this is the reason: he holds that “send” indicates from the outset.

For this is the meaning of the verse: “Do not take the mother together with the young; rather, send her away beforehand.” If so, once he took her, he had already violated both the prohibition and the positive mitzva.

Come and hear: A thief and a robber are included among those liable to lashes,

for they are lashed for the prohibitions “You shall not steal” and “You shall not rob,”

these are the words of Rabbi Yehuda.

But here, this is a prohibition severed by a positive mitzva, for the Merciful One said: “You shall not rob,”

and severed it through the positive mitzva

“He shall return the stolen item.”

Conclude from this that the reason of Rabbi Yehuda is that he holds that one is lashed for a prohibition severed by a positive mitzva!

For it is impossible to say that “he shall return” indicates from the outset, since it is impossible to return the stolen property before he stole it.