One of my daughters sent me a picture of a table she left out on her mirpeset upon which a bird had built a nest and laid an egg.
First, some basics:
1) The mitzvah only applies to the female bird of a kosher species. Does that apply here? My daughter later sent a picture of the bird roosting.
My guess was that it was a mourning dove, but she said ChatGPT told her it was a laughing dove. My original thought was that the difference between my guess and ChatGPT was a matter of personality. I'm not an upbeat guy, so I guessed mourning dove; ChatGPT is more positive, so it said laughing dove. The truth is that in North America, the doves we see are mourning doves. The doves native to Eretz Yisrael are laughing doves. Score 1 for ChatGPT.
2) My daughter has no desire for the eggs. Is there still a mitzvah to send away the mother? This is a big machlokes between Chavos Yair and Chasam Sofer. Chasam Sofer says the mitzvah only applies if you want to get the eggs. If not, why bother the bird? CY says you can do the mitzvah anyway. R' Yaakov Ariel makes two interesting points regarding this machlokes. He suggests that there may be a parallel between these views and the different opinions in Rishonim with regard to the reason for the mitzvah. If the reason is to avoid causing the mother bird pain by taking its young in its presence, as the Rambam suggests in Moreh (3:48), then the view of the Chasam Sofer that there is no reason to disturb the bird if you don't want eggs makes more sense. Why cause the bird any discomfort if you don't have to? However, Ramban rejects the idea that the mitzvah is motivated by rachmanus on animals. The kabbalists and midrashim see great segulos as inherent in the mitzvah. There is a suggested parallel between the cry of the mother bird for mercy on her children and crying by the Shechina on our behalf, our being Hashem's children. CY may be in line with this approach and therefore sees inherent value in the act irrespective of the need for the eggs.
(This view of the Rambam has to be squared away with the din that one is not allowed in davening to cry out to Hashem "whose mercy extends even to kan tzipor." R' Soloveitchik suggested that this is a din specific to tefilah. That is not the appropriate context to give voice to our attempted justification and understanding of Hashem's mitzvos.)
Secondly, he suggests a conceptual difference between the two views. According to CS, what concerns us is the end results, the toza'ah of the mitzvah -- retrieving the eggs without bothering the bird. According to CY who holds the mitzvah applies even if you don't want the eggs, it is the act itself, the maaseh mitzvah, which is important.
When all that concerns us is the totza'ah, then kavanah for the action being done is not a factor. For example, it doesn't matter if you have kavanah l'shem mitzvah when you give tzedakah. You get credit anyway, no matter your intention, because what we are after is helping people. When you put on tefillin, however, you have to have kavanah. The act of donning the tefillin is what is crucial.
Rav Ariel suggests a proof to the CS's position: The gemara (Kid 39b) tells the story of a man who was sent by his father to gather eggs and fell off a ladder in the process of sending away the mother bird and retreiving them. A witness to the event could not understand how could this happen. This individual was engaged in doing two mitzvos -- kibud av and shiluach ha'kan -- where the Torah explicitly promises a blessing of long life! The witness ended up going off the derech. The gemara itself is bothered why the mitzvah did not protect the person from harm, and suggests that the person might have been harboring thoughts of idolatry.
Why did the gemara need to come up with this extreme case as a solution to its question? According to CY, so long as the one doing the mitzvah did not have kavanah for the mitzvah of shiluach ha'kan -- and he probably didn't, because his concern was getting the eggs for his father -- that should be enough to negate the credit for the mitzvah. From the fact that the gemara did not offer this simple solution, it points in favor of CS's position.
3) Last point, which is one a lot of people overlook: the mitzvah of shiluach ha'kan only applies to a bird in the wild, not a domesticated bird or a bird that you own. This makes finding a scenario where this mitzvah applies is exceedingly rare. A person's chatzeir is koneh on behalf of the owner anything that falls within it. Meaning, anything in my daughter's mirpeset is hers. Anything on your windowsill is yours. Anything in your backyard, in your garage rafters, etc. all belongs to you. B'pashtus, this would include a bird living there as well. A bird found in your yard is your bird and is no longer considered a bird in the wild. Based on this, Achronim have a whole debate about whether the mitzvah can be done on a nest found on your property. Even though she probably never thought about it before discovering this nest, my daughter has absolutely no desire to own that bird. Does kinyan chatzeir work against her presumptive will (R' Moshe holds not)? Would being mafkir the nest after it was found help? These and other factors need to be investigated.
So much for the basics. What does any of this have to do with shemita (our parsha) or sefirah?
Rishonim write that the mitzvah of shiluach applies in all places and at all times. However, there is a Rashash (the kabbalist, not the one in the back of the gemara) who writes that it should not be done during sefirah, and it should not be done in shemita years post-churban ha'bayis.
Even if you reject this Rashash is light of the statement in Rishonim to the contrary, the question that still begs asking is what he was thinking. Is there any explanation for his view that we can make sense of?
Rav Yehoshua Van Dyke (RY of Itamar) brings us back to taamei ha'mitzvah, in particular the notion of this mitzvah eliciting rachmei Shamayim. He compares it to saying tachanun. We don't say tachanun on days like Shabbos and Y"T. Ramban in Emor writes that the entirety of sefirah is like a chol ha'moed between Pesach and Shavous. Shemita is like Shabbos on a national level, following a yearly instead of a weekly cycle. Because of the significance and holiness of these days, it is not a time to cry out for rachamim and tachanunim via the instrument of shiluach ha'kan.
While some poskim reject the Rashash outright, R' Van Dyke suggests that perhaps it can be used as an additional snif l'hakeil where there is a doubt as to whether one is obligated to do the mitzvah or not, e.g. if one does not want the eggs.
I was surprised this bird had no fear of making a nest where it did. My daughter said she is more afraid of the bird than it is of her, so she did not want to approach it. According to the CS, she certainly is exempt from shiluach, as she does not want the eggs. Aside from that, there is the question of whether there is any obligation of shiluach here given that by virtue of kinyan chatzeir the bird is no longer considered a wild bird. Lastly, there is the additional snif l'hakeil of the Rashash, for whatever it's worth, since we are in the middle of sefirah, All that adds up to the conclusion: find a practicing Rav to ask what to do : )
For the record, my daugher now reports two eggs in the nest. The bird is making a habit of this and my daughter is not happy about it.
