חולין 141:1 — Soncino English Talmud

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]! — 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’.