חולין 141 — Soncino English Talmud

¹should 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]! — 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. IF THERE WAS BUT ONE YOUNG BIRD OR ONE EGG etc. A certain Rabbi said to Raba: Perhaps it should be the reverse, thus if there was but one young bird or one egg [in the nest], one is not bound to let the dam go, for according to the verse there must be young or eggs, which is not the case here; and if there were there young birds able to fly or addled eggs, one is bound to let the dam go, for it is written, a nest, that is, any nest whatsoever! — [He replied,] If that were so, the verse should have stated: ‘And the dam sitting upon them’; why is it written: And the dam sitting upon the young or upon the eggs? To compare the young with the eggs and the eggs with the young. MISHNAH. IF A MAN LET [THE DAM] GO AND SHE RETURNED, EVEN FOUR OF FIVE TIMES, HE IS STILL BOUND [TO LET HER GO AGAIN], FOR IT IS WRITTEN, THOU SHALT IN ANY WISE LET THE DAM GO. IF A MAN SAID, ‘I WILL TAKE THE DAM AND LET THE YOUNG GO’, HE IS STILL BOUND [TO LET HER GO], FOR IT IS WRITTEN, ‘THOU SHALT IN ANY WISE LET THE DAM GO’. IF A MAN TOOK THE YOUNG AND BROUGHT THEM BACK AGAIN TO THE NEST, AND AFTERWARDS THE DAM RETURNED TO THEM, HE IS NOT BOUND TO LET HER GO. GEMARA. A certain Rabbi said to Raba: Perhaps ‘shalleah’ means once, and ‘teshallah’ twice? — He replied: ‘Shalleah’ implies even a hundred times; and as for ‘teshallah’, [it is required for the following teaching:] I only know [this law in the case where the dam is required] for matters of choice, whence do I know [that this law applies even when it is required] for the fulfilment of a precept? The text therefore states: ‘teshallah’, [thou shalt let her go] under all circumstances. R. Abba the son of R. Joseph b. Raba said to R. Kahana: Then the only reason [for this] is that the Divine Law stated ‘teshallah’, but otherwise I should have said that [where one required the dam] for the fulfilment of a precept, the law did not apply. But there is here, is there not, both a positive and a negative precept? And [it is established law that] a positive precept cannot override a positive and negative precept! — It is necessary for the case where one had transgressed and had taken the dam. Now he has already transgressed the negative precept, and there remains only the positive precept; and one might suppose that now a positive precept can override this [remaining] positive precept, [Scripture] therefore teaches us [that it is not so]. This is in order, however, according to him who teaches that it depends upon whether he has fulfilled or not fulfilled [the positive precept], but according to him who teaches that it depends upon whether he has nullified or not nullified [the positive precept], then so long as this man has not slaughtered the dam he has not transgressed the negative precept. Moreover, according to R. Judah who maintains that the precept of letting [the dam] go was intended only in the first instance, there is now [after the transgression of the law] not even a positive precept! — Rather, said Mar son of R. Ashi, we suppose the case where a man took up the dam in order to let it go, in which case there is no infringement of the negative precept; there is, however, a positive precept and [it might be suggested that] the positive precept [of the leper's offering] should override this positive precept. But in what way is this positive precept more potent than that? — Because one might argue: since a Master has said, Great is the peace between man and wife, for the Torah has permitted the name of the Holy One, blessed be He, which is to be written in all sanctity, to be washed away in the waters of bitterness, and since a leper so long as he has not been cleansed is forbidden marital intercourse, (for it is written: And he shall dwell outside his tent seven days; ‘his tent’ signifies his wife, hence he is forbidden marital intercourse) — one might therefore argue, since he is forbidden marital intercourse, the positive precept in his case should override the positive precept of letting the dam go, we are therefore taught [that it is not so]. MISHNAH. IF A MAN TOOK THE DAM WITH THE YOUNG, R. JUDAH SAYS, HE HAS INCURRED [FORTY] STRIPES, AND HE NEED NOT NOW LET HER GO. BUT THE SAGES SAY, HE MUST LET HER GO, AND HE DOES NOT INCUR STRIPES. THIS IS THE GENERAL RULE: [FOR THE TRANSGRESSION OF] ANY NEGATIVE PRECEPT WHICH ADMITS OF A REMEDY BY THE SUBSEQUENT FULFILMENT OF A POSITIVE COMMAND, ONE DOES NOT INCUR STRIPES. GEMARA. R. Abba b. Memel raised the question: Is the reason for R. Judah's view [in the Mishnah] that he is of the opinion that [for the transgression of] a negative precept which can be remedied by a subsequent act [of the transgressor] one incurs stripes, or is it that elsewhere he is of the opinion that [for the transgression of] a negative precept which can be remedied by a subsequent act one does not incur stripes, but here the reason is that he maintains that the precept of letting [the dam] go was intended only in the first instance? — Come and hear: A thief and a robber are subject to the penalty of stripes; so R. Judah. Now is not this a case of a negative precept which can be remedied by a subsequent act,for the Divine Law says: Thou shalt not rob, and also: He shall restore that which he took by robbery? You can therefore infer from this that the reason for R. Judah's view [in our Mishnah] is that he is of the opinion that [for the transgression of] a negative precept which can be remedied by a subsequent act [of the transgressor] one incurs stripes. Thereupon R. Zera said to them, Have I not told you that every Baraitha that was not taught in the school of^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:So in MS.M. and also in the first version supra; cur. edd. ‘Rab Judah’.
^ᵇnote:So according to MSS, and Maharsha (q.v.); in the text ‘The Mishnah’. The latter, however, in all probability, was the text before Maim. and Tur. loc. cit.; v. D.S. a.l.
^ᶜnote:Deut. XXII, 6. The verse states these nouns in the plural, i.e., several young or several eggs.
^ᵈnote:I.e., as eggs need the care of the dam so the young must be such as need the care of the dam, thus excluding such as can fly.
^ᵉnote:I.e., as the young are living beings so the eggs must be such as can produce living beings, thus addled eggs are excluded, v. Mishnah supra. Consequently the expression ‘a nest’, signifying any nest whatsoever, includes a nest that has but one young or one egg in it.
^ᶠnote:Ibid. 7. Lit., ‘letting go thou shalt let go’; i.e., as often as necessary. V. Gemara infra.
^ᵍnote:Having already let the dam go.
^ʰnote:For this man has acquired possession of the young ones, and they are now always at his disposal, consequently the law no longer applies.
^ⁱnote:jka, ‘to let go’, the infinitive of the verb.
^ʲnote:jka,, ‘thou shalt let go’, the imperfect of the verb.
^ᵏnote:I.e., for one's own purposes, either for food or for breeding.
^ˡnote:E.g., for the leper's sacrifice (Lev. XIV, 4) or for the sacrifice of a woman after childbirth (ibid. XII, 8). Whence do I know that even for these religious purposes it is not permitted to take the dam?
^ᵐnote:The negative precept Thou shalt not take the dam, and the positive precept Thou shalt in any wise let the dam go.
^ⁿnote:For the fulfilment of which the bird is required, v. n. 3.
^ᵒnote:I.e., that the positive precept of offering birds for the leper's sacrifice should override the positive precept of letting the dam go.
^ᵖnote:V. Mak. 15a, 16a.
^ᵠnote:In all prohibitions the transgression of which can be rectified by a subsequent act of the transgressor — e.g., the prohibition: Thou shalt not rob (Lev. XIX, 13), can after the transgression thereof be rectified by the remedial precept: He shall restore that which he took by robbery (ibid. V, 23) — the transgressor is not liable to forty stripes unless after the transgression he does not immediately (or, at the Court's bidding, v. Rashi, Mak. 15a s.v. tjhbv) fulfil the remedial precept. In our case, therefore, if the man does not let the dam go at once he has transgressed the law and is liable to stripes. Accordingly there now remains only the positive precept and this could be overridden by another positive precept were it not for the expression ‘teshallah’, v. supra.
^ʳnote:I.e., the transgressor does not incur the penalty of stripes for the infringement of the negative precept unless he has also nullified his chances of performing the remedial precept, e.g., here if he slaughtered the dam. But so long as he has not nullified the remedial precept, even though he defers it to some later date, he is not liable to stripes.
^ˢnote:It cannot therefore be suggested that the positive precept of the leper's sacrifice should override the law of letting the dam go for the latter still involves a positive and a negative precept; accordingly the verse stated above to exclude this is now superfluous.
^ᵗnote:I.e., on finding a bird's nest a man should immediately let the dam go, for as soon as he takes up the dam he thereby transgresses the law for which he incurs forty stripes (v. next Mishnah). Thereafter he is not obliged to let her go at all, but may use it for any purpose.
^ᵘnote:It, therefore, cannot be suggested that the man had transgressed the law and taken the dam, for then according to R. Judah it may be used for all purposes.
^ᵛnote:By taking the dam he has not infringed the negative precept, since he took it for the purpose of letting it go, and even if he does not let it go it cannot be said that he has transgressed this negative precept retroactively. There now remains incumbent upon him the positive precept of letting it go, but this would be overridden if he were to retain it for the fulfilment of the positive precept of the leper's offering. The verse is therefore necessary to exclude this possibility.
^ʷnote:Why should the precept of the leper's offering be considered more important so as to override the precept of letting the dam go?
^ˣnote:Shab. 116a and elsewhere.
^ʸnote:Cf. Num. V, 23.
^ᶻnote:Lev. XIV, 8.
^ᵃᵃnote:Cf. Deut. V, 27: Go say to them: Return to your tents, which was a permission to resume marital relations.
^ᵃᵇnote:I.e., the offering of birds which brings about the leper's purification and also the restoration of conjugal relationships.
^ᵃᶜnote:Lit., ‘in which there is (the command,) Rise and do’.
^ᵃᵈnote:Provided one fulfilled the, remedial positive act immediately according to one view above, or one did not nullify the chances of performing the remedial act according to the other view above. V. supra p. 815, n. 8 and p. 816, n. 1, notes 5 and 6, and Mak. 15b.
^ᵃᵉnote:And therefore once the dam has been taken both the negative and positive precepts have been infringed, and one is no longer obliged to send it away. V. p. 816, n. 3.
^ᵃᶠnote:Lev. XIX, 13.
^ᵃᵍnote:Ibid. V, 23. This precept obviously can only be taken as a remedial act for the preceding prohibition; nevertheless according to R. Judah the robber incurs the penalty of stripes.
^ᵃʰnote:So in MS.M. ‘To them’, i.e., to the students in the Beth Hamidrash (House of Study) who quoted the foregoing teaching. Cur. edd. ‘to him’.

²R. Hiyya and R. Oshaia is not authentic, and that you should not put it forward as a refutation in the Beth Hamidrash? Perhaps it was taught thus: [A thief and a robber] are not subject to the penalty of forty stripes. Come and hear: R. Oshaia and R. Hiyya taught: [It is written,] Thou shall not go back [to fetch it], but if a man went back [and gathered the forgotten sheaf] — [It is written,] Thou shalt not wholly reap, but if a man did reap the whole field — he is subject to the penalty of forty stripes; so R. Judah. You may infer from this that the reason for R. Judah's view is that he is of the opinion that [for the transgression of] a negative precept which can be remedied by a subsequent act [of the transgressor] one incurs stripes! — Perhaps the reason here is that he maintains that the precept of leaving [the gleanings etc. for the poor] was intended only in the first instance. Rabina said to R. Ashi: Come and hear: [It is written,] And ye shall let nothing of it remain until the morning; [and that which remaineth of it until the morning] ye shall burn with fire. Scripture here came and provided a positive precept as a remedy for the [disregarded] prohibition, to indicate that the prohibition is not punishable by stripes; so R. Judah. You may then infer from this that the reason for R. Judah's view [in our Mishnah] is that he maintains that the precept of letting [the dam] go was intended only in the first instance. This indeed proves it. R. Idi b. Abin said to R. Ashi: Our Mishnah also proves it, for it states: IF A MAN TOOK THE DAM WITH THE YOUNG, R. JUDAH SAYS, HE HAS INCURRED [FORTY] STRIPES, AND HE NEED NOT NOW LET HER GO. Now if you were to say that the reason for R. Judah's view is that he is of the opinion that [for the transgression of] a negative precept which can be remedied by a subsequent act [of the transgressor] one incurs guilt, then it should have stated: ‘He has incurred [forty] stripes and must also let her go’! — Perhaps the Mishnah is to be interpreted thus: He has not cleared himself [by merely letting her go] until he has suffered stripes. How far must he let it go? — Rab Judah said, until it is out of his reach. How should he let it go? — R. Huna said: With its feet. Rab Judah said: With its wings. ‘R. Huna said: With its feet’, for it is written: That let go freely the feet of the ox and the ass. ‘Rab Judah said: With its wings’, for its wings are also [regarded as feet]. A man once clipped the wings [of the dam before letting it go], let it go and then caught it again. Rab Judah had him flogged and ordered him: ‘Go, keep it until it grows its wing feathers again and then let it go’. But whose view did he adopt? For according to R. Judah he suffers stripes but need not let it go, and according to the Sages he must let it go but does not suffer stripes? — In truth he adopted the view of the Sages, but [the flogging] was chastisement of the Rabbis. A man once came to Raba and asked: What is the law with regard to the Temah? Said [Raba to himself]: Does not this man know that one is bound to let go a clean bird? He [Raba] then said to him: Perhaps [you enquire because] there was [in the nest] but one young bird or one egg? He replied: That is so. Then said [Raba] to him: This surely should not give rise to any doubt; it is expressly stated in our Mishnah: If there was but one young bird or one egg [in the nest], one is still bound to let [the dam] go. The other then sent it away; whereupon Raba set snares for it and caught it. But is there not ground here for suspicion? — He acted in an indirect manner [as did not give rise to suspicion]. Our Rabbis taught: [Wild] doves of the dove-cote, and doves of the loft, are subject to the law of letting [the dam] go, and are forbidden as [coming within the category of] theft in the interest of peace. Now if the dictum of R. Jose b. Hanina, that a man's courtyard acquires [property] for him even without his knowledge, is correct, then apply to this case the verse: If a bird's nest chance to be before thee, which excludes that which is always at one's disposal! — Raba said: As soon as the greater part of the egg has emerged [from the body of the bird] the law of letting [the dam] go applies, whereas [the owner of the dovecote] does not acquire it until it falls into his courtyard; therefore the ruling: ‘Are subject to the law of letting [the dam] go’ means, before it falls into his courtyard. If so, why are they forbidden as theft? — That refers to the mother-bird. Alternatively, you may say, it refers indeed to the eggs, for when the greater part of the egg has emerged his mind is set upon it. But now that Rab Judah has said in Rab's name that it is forbidden to take the eggs so long as the dam is sitting on them, for it is written: Thou shalt in any wise let the dam go, and then only: Thou mayest take the young to thee, — you may even say that it [the egg] fell into his courtyard, [nevertheless the law of letting the dam go applies], for whenever he himself may acquire it his courtyard acquires it for him, but whenever he himself may not acquire it his courtyard cannot acquire it for him either. If so, why are they forbidden as theft in the interests of peace? If he let the dam go, then [to take the eggs] is actual theft, and if he did not let it go, then he is bound to let it go? — We are referring to a minor. But is a minor subject to provisions enacted in the interests of peace? — It means this: The father of the minor must return [the eggs] in the interests of peace. Levi b. Simon assigned to Rab Judah the young of his dovecote. When the latter came before Samuel he advised him: ‘Go, knock on the nest so that [the brooding birds] shall rise up, and then take possession’. But why was this necessary? If in order to take possession of them; but surely he could have acquired them by means of a ‘cloth’. And if for the purpose of the Festival,^ᵃⁱ^ᵃʲ^ᵃᵏ^ᵃˡ^ᵃᵐ^ᵃⁿ^ᵃᵒ^ᵃᵖ^ᵃᵠ^ᵃʳ^ᵃˢ^ᵃᵗ^ᵃᵘ^ᵃᵛ^ᵃʷ^ᵃˣ^ᵃʸ^ᵃᶻ^ᵇᵃ^ᵇᵇ^ᵇᶜ^ᵇᵈ^ᵇᵉ^ᵇᶠ^ᵇᵍ^ᵇʰ^ᵇⁱ^ᵇʲ^ᵇᵏ^ᵇˡ^ᵇᵐ^ᵇⁿ^ᵇᵒ^ᵇᵖ^ᵇᵠ^ᵇʳ^ᵇˢ^ᵇᵗ^ᵇᵘ^ᵇᵛ^ᵇʷ

^ᵃⁱnote:Who were disciples of R. Judah the Patriarch who collected the Baraitha (v. Glos.).
^ᵃʲnote:Deut. XXIV, 19.
^ᵃᵏnote:Lev. XIX, 9.
^ᵃˡnote:Although in each case the Torah provides a remedial act, to leave the forgotten sheaf and the corner of the field for the poor and the stranger.
^ᵃᵐnote:But once the law has been transgressed there is no longer a duty to leave them for the poor; hence the precept ‘to leave’ is not a remedial act.
^ᵃⁿnote:Ex. XII, 10.
^ᵃᵒnote:Lit., ‘after’.
^ᵃᵖnote:It cannot be otherwise since here R. Judah expressly states his view that for the transgression of a negative precept which can be remedied by a subsequent act of the transgressor one does not incur stripes.
^ᵃᵠnote:And on this assumption the precept of letting the dam go must be observed even after the transgression of the law.
^ᵃʳnote:I.e., although he is bound even now to let her go he nevertheless suffers forty stripes.
^ᵃˢnote:And then if this same person succeeds in catching it again he is permitted to use it.
^ᵃᵗnote:I.e., he must let it go so that it should be able to walk away on its feet. In this manner he has fulfilled his obligation even though he may have injured its wings so that it cannot fly away. Aliter: he must get hold of it with its feet and set it free.
^ᵃᵘnote:I.e., that it should be able to fly with its wings.
^ᵃᵛnote:Isa. XXXII, 20. The expression ‘feet’ is used in connection with ‘letting go’.
^ᵃʷnote:So MS.M. V. Rashal and Maharsha a.l. Cur. edd. ‘since these are its wings’.
^ᵃˣnote:The punishment decreed by the Rabbis for disobedience as opposed to stripes ordained by Biblical law.
^ᵃʸnote:A clean bird, perhaps the bullfinch, cf. Lewysohn, Zoologie des Talmuds, p. 181.
^ᵃᶻnote:The text in cur. edd. is doubtful; the translation rests upon the reading in MS.M.
^ᵇᵃnote:That Raba ordered the other to let the dam go only that he might gain possession of it himself.
^ᵇᵇnote:Lit., ‘as though (doing a thing) with the back of the hand’.
^ᵇᶜnote:B.M. 102a.
^ᵇᵈnote:I.e., doves that roam at large seeking their food in the open field, but come to rest for the night in the dove-cote or in the loft.
^ᵇᵉnote:Strictly they do not belong to the owner of the dove-cote, but the Rabbis, for the sake of peace, and knowing that he has set his mind on them, recognized his right to them as against all others.
^ᵇᶠnote:V. B.M. 11a, and 102a.
^ᵇᵍnote:And since the dove-cote has acquired the eggs for the owner the law of letting the dam go surely cannot apply.
^ᵇʰnote:So in B.M. 102a. Cur. edd. ‘Rab’; in MS.M. ‘Rabbah’.
^ᵇⁱnote:Since the egg has not emerged entirely the dove-cote has not acquired it for the owner, so that it is not at his disposal; and therefore it is subject to the law of sending away.
^ᵇʲnote:Seeing that the egg has not yet become the property of the owner of the dove-cote.
^ᵇᵏnote:I.e., to take away the mother-bird is regarded by the Rabbis as theft, but only in the interests of peace, for the owner of the dove-cote has no doubt been looking forward to acquire this bird, since it has nested from time to time in his dove-cote, and it would therefore be wrong to deprive him of it. Similarly to take the egg, inasmuch as it has not wholly emerged from the mother-bird but is deemed a part thereof, would also constitute theft (Rashi). Cf. however Tosaf. B.M. 102a, s.v. ht.
^ᵇˡnote:And therefore, in the interests of peace, it is forbidden to deprive the owner of the dove-cote of these eggs to which he has been looking forward; but in respect of the mother-bird he has no better claim than a stranger. And on the other hand, so long as the egg has not actually been laid the law of letting the dam go still applies.
^ᵇᵐnote:Deut. XXII, 7.
^ᵇⁿnote:And since he cannot acquire it himself for the dam is sitting on it, his courtyard likewise cannot acquire it for him, so that it is not at his disposal, and therefore the law of letting the dam go applies.
^ᵇᵒnote:Sc. any person who comes to take the eggs.
^ᵇᵖnote:For as soon as the dam is lifted up from the eggs the latter become the property of the owner of the courtyard.
^ᵇᵠnote:Before the eggs can be taken, so that they are forbidden in any case.
^ᵇʳnote:Who is about to take the eggs from the dove-cote and upon whom the law of letting the dam go is not binding.
^ᵇˢnote:To the owner of the dove-cote.
^ᵇᵗnote:To knock on the nest so as to make the birds rise up.
^ᵇᵘnote:According to the usual manner of acquiring a thing by lifting up.
^ᵇᵛnote:The passing of a cloth or any article from one party to the other effected the transfer of the subject matter ‘of the transaction. V. B.M. 47a. Cf. Ruth IV, 7.
^ᵇʷnote:Whatever is intended to be used on the Festival must be ‘set in readiness’ before the Festival, otherwise it would be regarded as mukzeh, i.e., laid aside and not to be used on the Festival. The knocking on the nest would therefore be regarded as setting them in readiness for the Festival.