Question: On which birds may you fulfill the mitzvah of Shiluach HaKein?
Short Answer: Unless you know for sure that the bird does not have the signs set forth in the Shulchan Aruch for kosher birds, you should fulfill Shiluach HaKein.
Explanation:
I. The Source
The Mishnah (Chulin 138a) and the Gemara (Chulin 139b) explain that Shiluach HaKein only applies to a kosher bird. Since the pasuk utilizes the term “tzipor,” which means a “tahor” (kosher) bird, the bird must be kosher to fulfill the mitzvah. The Shulchan Aruch (Yoreh Dei’ah 292:1) codifies this halachah. See Shach (1).
However, determining the kashrus of birds is not simple. The Shulchan Aruch (Yoreh Dei’ah 82:1) notes that kosher signs for birds are not listed in the Torah; rather, the Torah lists 24 birds that are not kosher, and the rest are kosher. While the Shulchan Aruch (Yoreh Dei’ah 82:2-3) discusses signs you may use to determine whether a bird is one of the 24 non-kosher birds, the Rama (ibid, 3) rules that a bird is only kosher if we have a clear “mesorah” (tradition) that it is kosher.
Thus, certain species of pigeons, doves, geese, and ducks are certainly kosher to eat and kosher for Shiluach HaKein, as explained by the Star-K. See https://www.star-k.org/articles/kashrus-kurrents/725/shiluach-hakan/ . The Star-K also briefly describes certain simanim that are mentioned in the Shulchan Aruch describing birds that are kosher, even though Ashkenazim won’t eat them because they lack mesorah: “Kosher birds that are sitting on a branch place three toes in front and one in back; non-kosher birds place two in front and two in back. Kosher birds also have a crop, and their gizzards can be peeled. In general, birds of prey are not kosher (Chulin 59a). Another sign of kosher birds is that their eggs are not symmetrical; one end is wider than the other.”
II. The Trickier Question
The trickier question is whether Shiluach HaKein may (or should) be performed on birds that we do not eat because we have no mesorah? According to the Star-K, these birds include sparrows, robins, cardinals, and orioles.
The Hisorerus Teshuvah (2:37) asked a similar question: whether Shiluach HaKein should be performed on a bird that you are unsure if it is kosher. The Hisorerus Teshuvah rules that you should perform Shiluach HaKein on such a bird, as why would you be lenient about a safeik mitzvah d’Oraisa? He notes that there are those who argue that it should not be performed because the eggs are not able to be eaten and fall under the category of things that are permitted but people treat them as forbidden and therefore must be treated as forbidden. However, he debunks this comparison, as here, the eggs could be eaten if they are kosher, we just don’t know whether they are in fact kosher or not.
The Hisorerus Teshuvah then wonders whether there is a s’feik s’feika here, and therefore there is no requirement to perform Shiluach HaKein on a safeik kosher bird. In other words, maybe the bird is non-kosher, and even if it is kosher, maybe Shiluach HaKein is kiyumis (not like the Chavos Yair, see Article #4) and you are not obligated to do it if you do not plan on using the eggs (which is the case here because they are safeik kosher). However, the Hisorerus Teshuvah rejects this idea based on the Zohar’s reason for Shiluach HaKein. See Article #1. The Zohar explains that by sending away the mother bird, we cause tremendous anguish to the mother and thereby cause her “sar” (representative mal’ach) to cry out to Hashem. Hashem in turn responds with mercy to all people suffering, especially the B’nei Yisrael. Thus, even if it is a s’feik s’feika, you need to send the bird away.
The Shach (Yoreh Dei’ah 292:15) also writes that you should still fulfill Shiluach HaKein on birds we refrain from eating because they are safeik kosher.
III. The Opinion of the Munkatcher Rebbe
The Minchas Elazer (3:43) also discusses this question. He also rules that you should perform Shiluach HaKein on these birds, but for a different reason. He holds that there is a s’feik s’feika l’chumra that obligates you to fulfill it. Maybe there is a mesorah that this bird is kosher in a different area; and even if not, maybe we pasken like the Rishonim cited by the Shulchan Aruch that a bird is kosher simply with certain signs and without the need to have a mesorah.
IV. Other Opinions
The sefer Shalei’ach T’shalach (p. 55) cites many other poskim, including Rav Shamshon Raphael Hirsch zt”l, Rav Chaim Kanievsky zt”l, and Rav Nissim Karelitz zt”l, who rule that you should perform Shiluach HaKein even if you are not certain that the bird is kosher. However, he notes that Rav Y. Shapiro ruled that in such a case, you should make sure you return the eggs to the nest, to reduce the “cruelty” aspect in this safeik case.
V. Definitely Not Kosher
Shalei’ach T’shalach (ibid) writes that you should not perform Shiluach HaKein on any bird that is certainly not kosher. This is a violation of tzaar baalei chayim.
Rabbi Ephraim Glatt, Esq. is the Associate Rabbi at the Young Israel of Kew Gardens Hills, and he is a Partner at McGrail & Bensinger LLP, specializing in commercial litigation. Questions? Comments? Email This email address is being protected from spambots. You need JavaScript enabled to view it..
