Talmud Bavli Hullin 141a-b - translation by Tzvee

K.            It is necessary to state the instance where she is hovering [above the nest]. For [we learn from this that] even where its wings were touching the nest, one is exempt from letting the dam go.

L.            But lo we know it was taught on Tannaite authority: When its wings touched the nest, one is liable to send forth the dam [M. 12:3 B-C]. Said R. Judah, “Concerning what case did the Mishnah teach us the rule? Where she touched [the nest] on the side.”

II.1

A.            [If] there was there only one nestling or one egg, one is liable to send forth the dam, as it is said, “A bird's nest” (Deut. 22:6) — a bird's nest of any kind [M. 12:3 E-F]. Said one of the rabbis to Raba, “It makes sense to say the opposite: [If] there was there only one nestling or one egg, one is exempt from sending forth the dam, as it is said, “A bird's nest” (Deut. 22:6) — a bird's nest of any kind. For we must have several young birds or several eggs and we do not have it.

B.            [If] there were there nestlings able to fly or spoiled eggs [M. 12:3 G-H] [why not say that] one is liable to the requirement of sending forth the dam? as it is said, “A nest” — any kind of nest.

C.            If so, let the verse say, “And the dam sitting upon them.” Why does it specify, “And the dam sitting upon the young or upon the eggs”? It juxtaposes the young to the eggs and the eggs to the young [to teach us that they must both be healthy and neither may fly.]

Unit I.1 clarifies M.'s rule. I.2 poses questions to further expound the law. II.1 engages in a direct discussion of M.'s rule.

                                                                   12:3 M-Q

III           M.           [If] one sent it forth and it returned, even four or five times, he is liable [to send it forth again],

                N.            as it is said, “You shall surely send it forth.”

IV           O.            [If] one said, “Lo, I shall take the dam and send forth the young,” he is liable to send forth [the dam],

                P.            as it is said, “You shall surely send forth the dam.”

V             Q.            [If] one took the young and then returned them to the nest and afterward the dam returned to them, he is free of the obligation to send forth [the dam from the nest].

I.1

A.            Said one of the rabbis to Raba, “It makes sense to say that, `You shall send forth' means send it one time and `You shall surely send forth' means send it two times.” [How do we derive in M. from this, even four or five times?]

B.            He said to him, “`You shall send forth' [implies that you must send it away] even one hundred times. `You shall surely send forth' [implies something else]. I would have deduced [from `You shall send forth'] that only where [I wanted the birds] for some elective purpose [must I send away the dam]. But on what basis would we know that where I needed the birds to fulfill a commandment [such as the sacrifice of a leper or a woman after childbirth, that one still must send away the dam]? It comes to teach us, `You shall surely send forth' — under all circumstances [you must do so].”

C.            Said R. Abba the son of R. Joseph bar Raba to R. Kahana, “But what is the reason the Torah wrote, `You shall surely send forth'? If not for this would I have reasoned that [where I needed the birds] to fulfill a commandment [the requirement to send away the dam] did not apply?”

D.            [We would not have concluded that because] this is a commandment  and a prohibition [`You shall surely send forth,' and `You shall not take the mother with the young.']. And [we have a principle that] a commandment does not override both a prohibition and a commandment.

E.            No, it is necessary to teach the matter [to address the theoretical case wherein] he already violated the rule and took the mother. There he violated the prohibition [not to take the mother]. The commandment [to send away the mother] remains. [We might argue that] we let one commandment override another commandment [and a person would then take the birds to use for a sacrifice]. It comes to teach the novel point [”you shall surely send forth”].

F.             Now it would settle the matter [to reach this conclusion] in accord with the authority who taught the view that you either uphold [the prohibition] or you do not uphold it. [Once you violated it by taking the bird you cannot then reverse the situation.] But in accord with the authority who taught the view that you may annul [the prohibition by violating it] but you can restore it, as long as one did not slaughter the bird [after taking it from the nest], one did not violate [irrevocably] the prohibition. [Once you violated it by taking the bird you can then reverse the situation by letting it go as long as you did not slaughter it.]

G.            And furthermore according to R. Judah who said, `You shall... send' implies [in the next Mishnah-passage that there is a commandment only] at the outset [but if he takes the dam, there is no longer any applicable commandment at a later time, then in the present instance] there is not even a commandment.

H.            Rather said Mar bar R. Ashi, “The case in question may be one where he took [the dam] on the condition that he would later send it away. [In that case] there is no prohibition [that he will transgress]. There is [still] a commandment [to fulfill]. [We might argue that] we let one commandment override another commandment [and a person would then take the birds to use for a sacrifice].”

I.             [However, we may counter this by asking:] Why is this commandment [to bring a sacrifice] more potent than that commandment [to let the dam go]? You might have concluded that [it is] since the master said, “Great in importance is the peace between a man and his wife. Because the Torah said that the name of the Holy One, blessed be he, that was written in sanctity should be expunged into the [bitter] water [for a Sotah-woman suspected of infidelity in order to restore the peace between a man and his wife]. And this leper, so long as does not purify himself, he is prohibited from intercourse [with his wife].  As it is written, `[And he who is to be cleansed shall wash his clothes, and shave off all his hair, and bathe himself in water, and he shall be clean; and after that he shall come into the camp], but shall dwell outside his tent seven days' (Lev. 14:8). `His tent' — that is his wife. This serves as a source of proof that [a leper] is prohibited to engage in intercourse. What might you have maintained? Since he is prohibited to engage in intercourse [with his wife], we let his commandment override the commandment to send away the dam [and a person would then take the birds to use for a sacrifice]. It comes to teach the novel point [that this is not the case by using the intensive form].”

The unit spells out M.'s primary concern in light of its scriptural basis.

                                                                        12:4               

                A.            He who takes the dam with the young —

                B.            R. Judah says, “He incurs the penalty of stripes, but he does not send forth [the dam].”

                C.            And sages say, “He sends forth [the dam], but does not incur the penalty of stripes.

                D.            “This is the general principle: for any [negative] prohibition that is averruncated by affirmative [commandment] to rise up and do something, one does not incur the penalty of stripes.” [The commandment eliminates or averruncates the prohibition.]

I.1

A.            R. Abba bar Mamal posed a question, “Is the basis of the view of R. Judah that he reasoned in accord with the opinion that a [negative] prohibition that encompasses an affirmative [commandment] to rise up and do something, does one incur the penalty of stripes? Or perhaps in general he holds the view that, for any prohibition that encompasses an affirmative [commandment] to rise up and do something, one does not incur the penalty of stripes. But here the basis for his view [that he does incur it] is because he reasoned in accord with the view that, `You shall... send' implies [there is a commandment only] at the outset [but if he takes the dam, there is no longer any applicable commandment at a later time]?

B.            Come and take note: “A robber and a thief are subject to the punishment of the penalty of stripes,” the words of R. Judah. But lo this is a prohibition that is averruncated by an affirmative [commandment] to rise up and do something. For the Torah said, “You shall not oppress your neighbor or rob him. [The wages of a hired servant shall not remain with you all night until the morning]” (Lev. 19:13). [And it says], “Restore what you took by robbery” (Lev. 6:4). We may derive from this that the basis of the view of R. Judah is that he reasoned in accord with the opinion that a prohibition that is averruncated by an affirmative [commandment] to rise up and do something, one does incur the penalty of stripes.

C.            Said to him [var.: them] R. Zira, “Have I not informed you that every teaching that was not taught in the [141b] House of R. Hiyya or in the House of R. Oshaia is corrupt and you should not raise from it any objection in the House of Study? Perhaps it was taught [that the correct version of the teaching at B is, `A robber and a thief] are not subject to the penalty of stripes.'”

D.            It was taught on Tannaite authority: Come and take note: For R. Oshaia and R. Hiyya taught, “[When you reap your harvest in your field, and have forgotten a sheaf in the field,] you shall not go back to get it; [it shall be for the sojourner, the fatherless, and the widow; that the Lord your God may bless you in all the work of your hands]” (Deut. 24:19). But if he went back [it is taught further], “[When you reap the harvest of your land,] you shall not reap your field to its very border, [neither shall you gather the gleanings after your harvest]” (Lev. 19:9). But if he reaped [it to its border] — “It is subsumed under the penalty of stripes,” the words of R. Judah. [Even though it constitutes a prohibition averruncated by a commandment.]

E.            We derive from this that the basis of the view of R. Judah is that he reasoned in accord with the opinion that a prohibition that is averruncated by an affirmative [commandment] to rise up and do something, one does incur the penalty of stripes.

F.             But perhaps here the basis for his view [that he does incur it] is because he reasoned in accord with the view that, `You shall... leave it' implies [there is a commandment only] at the outset [but if he takes the produce, there is no longer any applicable commandment at a later time to leave something for the poor].

G.            Said Rabina to R. Ashi, “Come and take note: `And you shall let none of it remain until the morning, anything that remains until the morning you shall burn' (Exod. 12:10). Scripture provides us with a commandment after a prohibition to inform us that he does not incur the penalty of stripes [for transgressing] this, the words of R. Judah. We may derive from this that the basis for R. Judah's view [in our Mishnah] is because he reasoned in accord with the view that, `You shall... send' implies [there is a commandment only] at the outset [but if he takes the dam, there is no longer any applicable commandment at a later time]. We may derive [indeed] this.” [The matter does not depend on how the Torah states things but on the applicability of the commandment. Here it is not applicable so he may incur the penalty of stripes.]

I.2

A.            Said R. Idi to R. Ashi, “From the Mishnah itself [at A-B] you may also derive this explicitly. For it was taught: He who takes the dam with the young — R. Judah says, “He incurs the penalty of stripes, but he does not send forth [the dam].” And if you wish to conclude that the basis for the view of R. Judah is that for a prohibition that is averruncated by an affirmative [commandment] to rise up and do something, one does incur the penalty of stripes, it would be necessary to teach, He incurs the penalty of stripes, and he does send forth the young.

B.            But perhaps this is how you should state the matter in the Mishnah: One is not freed from his obligation until they administer the penalty of stripes to him.

II.1

A.            How far must he let it go [when he sends forth the dam]? Said R. Judah, “Until it is beyond his reach.”

B.            In what manner does he send it forth? R. Huna said, “On its feet.” R. Judah said, “On its wings.” [Rashi: an alternative explanation: Holding its feet or holding its wings.]

C.            R. Huna said, “On its feet.” As it is written, “[Happy are you who sow beside all waters], who let the feet of the ox and the ass range free” (Isa. 32:20).

D.            R. Judah said, “On its wings.” [For a bird], lo, its feet are its wings. [So the verse supports his view.]

II.2

A.            There was once a person who clipped the wings [of a dam] and sent it away and afterward captured it. R. Judah administered lashes to him. He said to him, “Go and allow its feathers to grow back and send it away.”

B.            In accord with whose view [of our Mishnah] is this decision? If it is in accord with the view of R. Judah then, “He incurs the penalty of stripes, but he does not send forth [the dam].”

C.            And if it is in accord with the rabbis then, “He sends forth [the dam], but does not incur the penalty of stripes.

D.            It is consistent [to say this accords] with the view of the rabbis. And [the lashes he administered was] the penalty of stripes for insubordination, based on the authority of the rabbis [not based on the prohibition in the Torah].

III.1

A.            A person came before Raba [to obtain a legal ruling]. He said to him, “What is [the law with regard to sending away the dam] for the bullfinch?”

B.            He said, “Does this man not know that it is a clean bird and one must send away [the dam]?”

C.            He said to him, “Was it perhaps incubating just one egg?”

D.            He said to him, “Correct.”

E.            [He said to him,] “You should know this. It is in the Mishnah: [If] there was there only one nestling or one egg, one is liable to send forth the dam [M. 12:3 E].”

F.             He sent it forth. Raba set out snares for it and captured it. But should we not suspect [that his actions call into question Raba's] scruples? [No, because capturing it in snares is] a passive activity [i.e., indirect, and thus not a problem].

IV. 1

A.            Our rabbis taught on Tannaite authority: The pigeons of a dovecote and the pigeons of an attic are liable to the requirement of sending forth and prohibited because of robbery, in order to keep peace [T. 10:13 C-D]. But if we accept what R. Yosé b. R. Hanina said, “A person can take possession through his courtyard, even without his knowledge,” then we should call this a case of, “If you chance to come upon a bird's nest, [in any tree or on the ground, with young ones or eggs and the mother sitting upon the young or upon the eggs, you shall not take the mother with the young]” (Deut. 22:6) — this excludes from the obligation that which is captive [in a house, above 12:1-2 I.2 D].

B.            Said Rab [var. Raba], “A bird laying] an egg — as soon as the major part of it emerges, it is liable to the rule of sending away the dam. But one does not acquire possession of it until it falls into his courtyard. And where you say that it taught they are liable to the requirement of sending forth [it is concerning an egg] before it fell into his courtyard. If so, why then would they be prohibited because of robbery? [That could refer] to their mother.”

C.            If you prefer [another possible explanation], it [T.] consistently refers to the egg [not the dam]. And regarding an egg, as soon as the major part of it emerges, he is mindful of it [and acquires possession before it falls into his courtyard].

D.            But let us now consider the matter: Said R. Judah, said Rab, “It is prohibited to acquire possession of eggs that the dam is sitting upon. As it says, `You shall let the mother go.' And after that, `But the young you may take to yourself; [that it may go well with you, and that you may live long]' (Deut. 22:7). Even if you maintain, even if they fell into his courtyard, in any case that he himself could take possession [of the egg], his courtyard also could take possession [of it on his behalf]. And in any case that he himself could not take possession [of the egg], his courtyard also could not take possession [of it on his behalf], if so, why are they, prohibited [because of robbery], in order to keep peace? If he sent away [the dam], it is a pure case of robbery. And if he did not send away [the dam], he must send away [the dam before one can take the eggs].

E.            [We may hypothesize that the case pertains to] a child [not subject to the commandment to send away the dam]. [But we may then ask], is a child subject to the obligation to keep peace?

F.             Here is how you should state the matter. The father of the child is obligated to return it, in order to keep peace.

V.1

A.            Levi bar Simon gave possession of the stock of his dovecote to R. Judah. He came before Samuel. He said to him, “Go disturb the nest so they will fly up and you may acquire them.”