חולין 140 — Soncino English Talmud

¹It is written: And the zippor of the heaven dwelt in the branches thereof! — They are designated ‘the zippor of the heaven’, but not ‘zippor’ alone. Come and hear: It is written: Every zippor that is clean ye may eat; from which we may deduce that there is [a zippor] that is unclean! — No, we may deduce that there is [a zippor] that is forbidden. But which is that? If it is one that is trefah, but this is expressly stated [to be forbidden]. And if it is the slaughtered bird of the leper, but this is inferred from the next verse: And these are they of which ye shall not eat, which includes the slaughtered bird of the leper! — It is, in truth, the slaughtered bird of the leper, and [it is repeated so as to teach that] one infringes on that account a positive and also a negative precept. But why not say that it is a trefah bird [that is meant, and it teaches that] one infringes on that account a positive and also a negative precept? — ‘The meaning of a verse is to be deduced from its context’, and the context deals with those that are slaughtered. Come and hear: It is written: Two living zipparim. Now what is meant by ‘living’? It means, does it not, those that are fit for your mouth, and from which follows that there are also those [zipparim] that are not fit for your mouth? — No, by ‘living’ is meant those whose principal limbs are living. Come and hear from the next word [in the above verse]: Clean. Is not the inference that there are unclean [zipparim]? — No, the inference is that there are trefah [clean birds]. But are not trefah birds excluded by the term ‘living’? Of course this presents no difficulty to him who says that a trefah can continue to live, but according to him who says that a trefah cannot continue to live what can be said? Moreover, both according to him who says that a trefah can continue to live and him who says that it cannot continue to live, this is inferred from the teaching of a Tanna of the school of R. Ishmael. For a Tanna of the school of R. Ishmael taught: There have been prescribed qualifying and atoning sacrifices within the Temple, and there have been prescribed qualifying and atoning sacrifices outside the Temple; just as with regard to the qualifying and atoning sacrifices prescribed within the Temple, the qualifying sacrifices are equal to the atoning sacrifices, so with regard to the qualifying and atoning sacrifices prescribed outside the Temple, the qualifying sacrifices are equal to the atoning sacrifices! — Rather said R. Nahman b. Isaac, [The expression ‘clean’] serves to exclude the birds of a beguiled city. But for which one? If for the one that must be set free, but surely the Torah would not enjoin to set it free if it would thereby lead to transgression! Rather it could serve for the one that must be slaughtered. Raba said, [The expression ‘clean’] serves to exclude [the following case]: that one may not use this bird before it is set free so as to make up the pair of birds [for the purification rites] of another leper. But for which one? If for the one that was to be slaughtered, but surely it must be set free! Rather it could serve for the one that was to be set free. R. Papa said, [The expression ‘clean’] serves to exclude birds that were obtained in exchange for an idol, for it is written: And become a devoted thing like unto it; whatever you bring into being from [the devoted thing] is to be treated like it. But for which one? If for the one that must be set free, but surely the Torah would not enjoin to set it free if it would thereby lead to transgression! Rather it could serve for the one that must be slaughtered, Rabina said: We are dealing here with a bird that had killed a man. But what are the circumstances? If it had already been condemned, then it must be put to death; we must therefore say that it had not yet been condemned. But for which one [of the leper's birds might this be used]? If for the one that must be set free, but surely it must be brought to the Beth din so as to carry into effect the verse: So shalt thou put away the evil from the midst of thee! Rather it could serve for the one that must be slaughtered. IF AN UNCLEAN BIRD WAS SITTING ON THE EGGS OF A CLEAN BIRD . . . [ONE IS NOT BOUND TO LET IT GO]. This is indeed clear of an unclean bird sitting on the eggs of a clean bird, for the law [of letting the dam go] applies only to a ‘zippor’, and this is not the case here; but why [is one not bound to let go] the clean bird that was sitting on the eggs of an unclean bird? It is a zippor, is it not? — As R. Kahana said [in another connection]. It is written, [But the young] thou mayest take for thyself, ‘for thyself’ but not for thy dogs; here too [we say the same], ‘Thou mayest take for thyself’, but not for thy dogs. In what connection was this statement of R. Kahana said? — In connection with the following Baraitha which was taught: If the dam is trefah, one is still bound to let it go; if the young ones are trefah, one is not bound to let the dam go. Whence is this derived? — R. Kahana said: It is written: ‘[But the young] thou mayest take for thyself’; ‘for thyself’ but not for thy dogs. But should we not regard a trefah dam on the same footing as [trefah] young ones, and as in the case of trefah young ones one is not bound to let the dam go so in the case of a trefah dam one is not bound to let it go?^ᵃ^ᵇ^ᶜ^ᵈ^ᵉ^ᶠ^ᵍ^ʰ^ⁱ^ʲ^ᵏ^ˡ^ᵐ^ⁿ^ᵒ^ᵖ^ᵠ^ʳ^ˢ^ᵗ^ᵘ^ᵛ^ʷ^ˣ^ʸ^ᶻ^ᵃᵃ^ᵃᵇ^ᵃᶜ^ᵃᵈ^ᵃᵉ^ᵃᶠ^ᵃᵍ^ᵃʰ

^ᵃnote:Dan. IV, 9. Since here there is no other synonym for bird mentioned in the verse, then surely the term ‘zippor’ includes all, both clean and unclean birds.
^ᵇnote:Sc. unclean birds.
^ᶜnote:Deut. XIV, 11.
^ᵈnote:Although it is a clean bird.
^ᵉnote:Cf. Lev. XXII, 8, which verse, according to Rabbinic tradition, refers to a clean bird that was rendered trefah.
^ᶠnote:Lev. XIV, 4, 5. Of the two birds used in the purification rites of a leper one was slaughtered and was thereupon rendered forbidden for all purposes, cf. Kid. 57a, A.Z. 74a.
^ᵍnote:Deut. XIV, 12. ‘Of which’ clearly refers to those clean birds mentioned in the preceding verse, implying that some of those are forbidden even though clean.
^ʰnote:V. Kid. loc. cit.
^ⁱnote:That is excluded from v. 11.
^ʲnote:By deriving any benefit from the slaughtered bird of the leper one transgresses the negative precept implied in Deut. XIV, 12, and also the positive precept (i.e., the negative inference from a positive precept which has the force of a positive precept) derived from Deut. XIV, 11.
^ᵏnote:For the passage begins with the verse: ‘Every clean bird ye may eat’, which means, of course, only if slaughtered.
^ˡnote:Lev. XIV, 4.
^ᵐnote:Lit., ‘living in your mouth’, i.e., permitted to be eaten.
^ⁿnote:And only excludes those clean birds which have an entire limb missing.
^ᵒnote:Which are excluded from use in the purification rites of a leper.
^ᵖnote:V. supra 42a.
^ᵠnote:That a trefah bird may not be used in the purification rites of a leper.
^ʳnote:A qualifying sacrifice is one that renders a person fit to enter the Temple and partake of sacred food; in most cases (e.g., the sin-offering brought by a woman after childbirth, or the guilt-offering of a leper) the service of the sacrifice was performed inside the Temple, but in some cases (e.g. the bird-offerings of a leper) the service was performed outside the Temple. An atoning sacrifice, on the other hand, is one that atones for a sin committed; in most cases (e.g., the usual sin-offerings and guilt-offerings) the service of the sacrifice was performed inside the Temple, but in a few cases (e.g., the Scapegoat, and the heifer whose neck was to be broken) the service was performed outside the Temple.
^ˢnote:And therefore what is regarded as unfit for an atoning sacrifice, e.g. an animal that is trefah or has a physical blemish, may not be used for a qualifying sacrifice. Hence a trefah bird may not be used for the purification rites of a leper, and there is no need for any express term to exclude it.
^ᵗnote:A city whose inhabitants were enticed into idolatry was to be utterly destroyed and everything belonging to it was forbidden absolutely; cf. Deut. XIII, 13ff. The term ‘clean’ thus excludes the birds of this town from being used in the purification rites of the leper.
^ᵘnote:For which of the two birds of the leper's offering could such a bird be used? Cf. Lev. XIV, 4ff, where two birds are prescribed for the leper's offering, one was to be slaughtered whilst the other was to be set free.
^ᵛnote:Lit., ‘for a stumbling-block’. The finder of the bird, not knowing that it originally came from a beguiled city, will eat it, and so be led into sin by another's performance of a precept. On this ground therefore it cannot be suggested that birds from a beguiled city may be used for the leper's offering.
^ʷnote:The word ‘clean’ is therefore necessary to exclude such a bird.
^ˣnote:Of the second leper's birds would it at all be possible for this to be used.
^ʸnote:In order to fulfil the rites for the purification of the first leper; thus it certainly may not be slaughtered for the second leper.
^ᶻnote:I.e., it could’ serve this same purpose for both lepers, were it not for the fact that the word ‘clean’ excludes such a case.
^ᵃᵃnote:Deut. VII, 26.
^ᵃᵇnote:V. supra n. 2.
^ᵃᶜnote:The term ‘clean’ is therefore necessary to exclude such a bird from use in the purification rites of the leper.
^ᵃᵈnote:V. p. 807, n. 10.
^ᵃᵉnote:Deut. XIII, 6.
^ᵃᶠnote:For by being slaughtered it is put away from the midst of thee’. Hence the verse is necessary to exclude it.
^ᵃᵍnote:I.e., a clean bird.
^ᵃʰnote:Ibid. XXII, 7.

²— If that were so, then the teaching that the term zippor’ excludes an unclean bird is superfluous. But it has been taught: The dam of young that is trefah, one is bound to let go! — Abaye answered: It is to be explained thus: If the dam of the young is trefah, one is bound to let it go. R. Hoshaia raised the question: What is the law if a man put his hand into a nest and cut through a small part of the throat organs [of the young ones]? Should we say that, since if he were to leave off cutting at this point they would become trefah, the rule ‘"Thou mayest take for thyself" but not for thy dog’ applies; or rather, since it is within his power to finish cutting, we still say [of these young ones] ‘Thou mayest take for thyself’, and he is therefore bound to let the dam go? — This question remains unanswered. R. Jeremiah raised the question: Would a cloth be regarded as an interposition or not? Would [loose] feathers be an interposition or not? Would addled eggs be an interposition or not? What if there were two layers of eggs, one above the other? What if the male bird was upon the eggs and the dam was upon the male? — These questions remain unanswered. R. Zera raised the question: What is the law if a dove was sitting on a tasil's eggs, or if a tasil was sitting on dove's eggs? Abaye said: Come and hear: IF AN UNCLEAN BIRD WAS SITTING ON THE EGGS OF A CLEAN BIRD, OR A CLEAN BIRD ON THE EGGS OF AN UNCLEAN BIRD, ONE IS NOT BOUND TO LET IT GO. It follows, does it not, that if a clean [bird was sitting upon the eggs of another] clean bird, one is bound to let it go? — Perhaps this is so only with a hen partridge. AS TO A COCK PARTRIDGE, R. ELIEZER SAYS ONE IS BOUND TO LET IT GO, BUT THE SAGES SAY ONE IS NOT BOUND. R. Abbahu said: What is the reason of R. Eliezer? — He draws an analogy between the expressions ‘brood’; for it is written here: As the partridge broodeth over young which he has not brought forth, and it is written there: She shall hatch and brood under her shadow. R. Eleazar said: They differ only with regard to a cock partridge, but as for a hen partridge all agree that one is bound to let it go. Is not this obvious? for the Mishnah expressly says: A COCK PARTRIDGE! — One might have thought that even the hen partridge the Rabbis exempt [from letting go], but the reason why the cock partridge was stated [in the Mishnah] was to set forth the extent of R. Eliezer's view; we are therefore taught [that it is not so]. R. Eleazar also said: They differ only with regard to a cock partridge, but as for the male of any other [bird] all agree that one is exempt [from letting it go]. Is not this obvious? For the Mishnah expressly says: AS TO A COCK PARTRIDGE? — One might have thought that even the male of any other bird R. Eliezer declares one bound [to let go], but the reason why the cock partridge was stated was to set forth the extent of the Rabbis’ view; we are therefore taught [that it is not so]. There has also been taught [a Baraitha] to this effect: The male of any other bird one is not bound [to let go]; as to a cock partridge. R. Eliezer declares one bound [to let it go], but the Sages say one is not bound. MISHNAH. IF THE DAM WAS HOVERING [OVER THE NEST] AND HER WINGS TOUCH THE NEST, ONE IS BOUND TO LET HER GO; IF HER WINGS DO NOT TOUCH THE NEST, ONE IS NOT BOUND TO LET HER GO. IF THERE WAS BUT ONE YOUNG BIRD OR ONE EGG [IN THE NEST], ONE IS STILL BOUND TO LET THE DAM GO, FOR IT IS WRITTEN: A NEST, THAT IS, ANY NEST WHATSOEVER. IF THERE WERE THERE YOUNG BIRDS ABLE TO FLY OR ADDLED EGGS, ONE IS NOT BOUND TO LET [THE DAM] GO, FOR IT IS WRITTEN, AND THE DAM SITTING UP ON THE YOUNG OR UPON THE EGGS; AS THE YOUNG ARE LIVING BEINGS SO THE EGGS MUST BE SUCH AS [WOULD PRODUCE] LIVING BEINGS; HENCE ADDLED EGGS ARE EXCLUDED. AND AS THE EGGS NEED THE CARE OF THE DAM SO THE YOUNG MUST BE SUCH AS NEED THE CARE OF THE DAM; HENCE THOSE THAT ARE ABLE TO FLY ARE EXCLUDED. GEMARA. Our Rabbis taught: It is written: Sitting, but not hovering. I might then Suppose that even when her wings touch the nest [the law does not apply], the text therefore stated: ‘Sitting’. How is this implied? — Because it is not written ‘brooding’. Rab Judah said in the name of Rab: If she was perched upon two branches of a tree, we must consider, if when the branches slip away from each other she would fall upon them, one is bound to let her go, but if not, one is not bound [to let her go]. An objection was raised. [It was taught:] If she was sitting among them, one is not bound to let her go, if upon them, one is bound to let her go; if she was hovering over the nest, even though her wings touch the nest, one is not bound to let her go. Now presumably the expression ‘upon them’ bears the same meaning as ‘among them’, and just as ‘among them’ means that she is actually touching them so ‘upon them’ also means that she is actually touching them; it follows, however, that if she was upon the branches of a tree, one is not bound [to let her go]! — No, the expression ‘upon them’ bears the same meaning as ‘among them’, and just as ‘among them’ clearly means that she is not touching them from above so ‘upon them’ also means that she is not touching them from above, and that must be the case where she was upon the branches of a tree. It is indeed more logical to argue thus, for if you were to hold that when perched upon the branches of a tree one is not bound [to let her go], then the Tanna, in place of the case ‘If she was hovering over the nest, even though her wings touch the nest, one is not bound to let her go’, should rather have taught the case where she was perched upon the branches of a tree, and it would go without saying that where she was hovering [over the nest one is not bound to let her go!] — [This argument is not conclusive for] he wished to state the case where she was hovering [over the nest] to teach that, even though her wings actually touch the nest, one is not bound to let her go. But have we not learnt: IF THE DAM WAS HOVERING OVER THE NEST, AND HER WINGS TOUCH THE NEST, ONE IS BOUND TO LET HER GO? — R. Jeremiah answered, The Baraitha deals with the case where her wings touch the side of the nest. Another version reads as follows: Shall we say that the following [Baraitha] is a support for his view? For it was taught: If she was sitting among them, one is not bound to let her go, if upon them, one is bound to let her go; if she was hovering over the nest, even though her wings touch the nest, one is not bound to let her go. Now presumably the expression ‘upon them’ bears the same meaning as ‘among them’, and just as ‘among them’ clearly means that she is not touching them from above so ‘upon them’ also means that she is not touching them from above, and that must be the case where she was upon the branches of a tree! — No, the expression ‘upon them’ bears the same meaning as ‘among them’, and just as ‘among them’ means that she is actually touching them so ‘upon them’ also means that she is actually touching them, but if she was perched upon the branches of a tree one would not be bound [to let her go]. But if so, [the Tanna] in place of the last case ‘If she was hovering over the nest, even though her wings touch the nest, one is not bound to let her go’,^ᵃⁱ^ᵃʲ^ᵃᵏ^ᵃˡ^ᵃᵐ^ᵃⁿ^ᵃᵒ^ᵃᵖ^ᵃᵠ^ᵃʳ^ᵃˢ^ᵃᵗ^ᵃᵘ^ᵃᵛ^ᵃʷ^ᵃˣ^ᵃʸ^ᵃᶻ^ᵇᵃ^ᵇᵇ^ᵇᶜ^ᵇᵈ^ᵇᵉ

^ᵃⁱnote:For if by making this comparison a trefah dam is excluded, then in like manner an unclean bird would also be excluded, thus rendering the interpretation derived from the term ‘zippor’ unnecessary.
^ᵃʲnote:It is assumed that the Baraitha means this: if the young ones were trefah and the dam was not, one is bound to let the dam go; thus in conflict with R. Kahana.
^ᵃᵏnote:For in the case of birds the slaughtering is valid only when the greater portion of one organ of the throat has been cut, and to leave off before this requisite amount has been cut through would render the bird trefah. It must, however, be assumed here that the partly-cut organ was the gullet, for a partly-cut windpipe does not render trefah (v. supra 29a); v. Shak, Yoreh De'ah c. 292, sec. 15; and Glosses of R. Bezalel Regensburg a.l.
^ᵃˡnote:Accordingly one is not bound to let the dam go.
^ᵃᵐnote:If a cloth was spread over the eggs in the nest and the mother-bird was sitting on it, does the law of sending away apply or not? The doubt arises through a strict literal interpretation of the verse: And the dam sitting upon the young or upon the eggs (Deut. XXII, 6), which would exclude every case where some extraneous object interposed between the dam and the eggs.
^ᵃⁿnote:Since the law does not apply where there are only addled eggs in the nest (i.e., rotten eggs, incapable of producing a chicken; v. Mishnah infra), if these addled eggs formed a layer over ordinary eggs, interposing between the dam and the ordinary eggs, are they regarded as an interposition, in which case the law of letting the dam go does not apply, or not?
^ᵃᵒnote:Does the upper layer serve as an interposition, so that one may take away the eggs of the lower layer without first letting the dam go, or not?
^ᵃᵖnote:Since the law of letting the dam go does not apply to a male bird sitting on the eggs (v. supra), is the male bird deemed an interposition between the dam and the eggs, or not?
^ᵃᵠnote:khx, a clean bird, resembling a dove; cf. supra 62a.
^ᵃʳnote:I.e., the inference which Abaye makes from the statement of the Mishnah, that where one clean bird sits upon the eggs of another clean bird the law applies, may be restricted only to the case of the hen partridge which habitually broods over other birds’ eggs.
^ᵃˢnote:Jer. XVII, 11. This verse clearly refers to the cock partridge because of the masculine form of the verb ‘he has not brought forth’.
^ᵃᵗnote:Isa. XXXIV, 15. The comparison is between the brooding by the dam in this verse and the brooding by the male bird in the previous verse; in each case it is a proper brooding.
^ᵃᵘnote:R. Eliezer and the Rabbis.
^ᵃᵛnote:The Sages.
^ᵃʷnote:Deut. XXII, 6.
^ᵃˣnote:Which would signify constantly sitting upon the eggs.
^ᵃʸnote:Throughout this passage ‘she’ refers to the dam and ‘them’ to the young or the eggs.
^ᵃᶻnote:V. p. 821, n. 4.
^ᵇᵃnote:Since she does not actually touch them; contrary to Rab Judah's ruling.
^ᵇᵇnote:For since she is directly above them, even though she does not touch them, the law of ‘letting the dam go’ applies.
^ᵇᶜnote:If where she was perched the whole time directly over the nest the law of ‘letting the dam go’ does not apply, how much less where she was hovering over the nest!
^ᵇᵈnote:Whereas in our Mishnah the case is that the wings touch the nest from above, thus actually touching the young birds or the eggs, and therefore one is bound to let the dam go. V. however, Maim. Yad, Shechitah, XIII, 13; and Tur, Yoreh De'ah, c. 292.
^ᵇᵉnote:Rab's view, as quoted by Rab Judah.