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1) A LONE EGG OR CHICK

(a) (Mishnah): If there was only one chick...
(b) Question: We should require "Efroch*im* O Al Beitz*im*" (plural), and expound "Kan" to include even chicks that can flutter or Muzarim eggs!
(c) Answer (Rava): If so, the Torah should have said "Rovetzes Aleihem";

1. Rather, it says "Rovetzes Al Efrochim O Al Beitzim" to equate chicks and eggs. (Just like the chicks hatched, the eggs must be capable of hatching; just like the eggs need the mother, also the chicks.)

(a) (Mishnah): If one sent the mother and it returned, he must send it gain, even four or five times - "Shale'ach Teshalach."
(b) If one says, I will take the mother and send the chicks, he is liable (Rashi - for taking the mother; Ramban - he must send the mother) - "Shale'ach Teshalach Es ha'Em."
(c) If he took the offspring and returned them, and the mother returned, he is exempt from sending the mother (Rashi - and he may take them again).
(d) (Gemara) Question: We should expound "Shale'ach" - once; "Teshalach" - a second time, but not more!
(e) Answer (Rava): "Shale'ach" connotes even 100 times;

1. One might have thought that one may take the mother for a Mitzvah (e.g. to be Metaher a Metzora) - "Teshalach" obligates sending the mother, even if it is needed for a Mitzvah.

(f) Question (R. Aba brei d'Rav Yosef): If not for "Teshalach," one might have thought that one may take the mother for a Mitzvah - but taking the mother is forbidden by an Aseh and a Lav, an Aseh does not override them!
(g) Answer #1: The case is, he already took the mother (so there is no Lav to keep it for the Mitzvah);

1. There is only an Aseh to send her - without "Teshalach," the other Mitzvah would override the Mitzvah to send.
2. (A Beraisa explains when one is lashed for a Lav *ha'Nitak l'Aseh* (which can be "fixed" by performing an Aseh).)
3. Our answer is according to the opinion that the Beraisa says that he is not lashed if he (Rashi - immediately; Ramban - can) fulfill(s) the Aseh, he is lashed if he does not fulfill it (Rashi - right away; Rambam - if it becomes impossible to fulfill it);

(h) Objection #1: According to the opinion that he is not lashed unless he is Mevatel (makes it impossible to fulfill) the Aseh, he does not transgress the Lav until he slaughters it (so Answer #1 does not apply)!
(i) Objection #2: R. Yehudah says that "Shale'ach" applies only before taking the mother; if he took it, there is no obligation to send it;

1. How does he expound "Teshalach"?

(j) Answer #2 (Mar bar Rav Ashi): The case is, he took the mother intending to send it (and now he wants to keep it for a Mitzvah);

1. There is no Lav to do so, only the Aseh to send it. One might have thought, the other Mitzvah overrides the Mitzvah to send it - the verse teaches, this is not so.
2. Question: Why should we think that the other Mitzvah takes precedence?
3. Answer: Shalom is so great that the Torah permits erasing Hash-m's name in order to permit a man to his wife (if she became a Sotah);

i. A Metzora is forbidden to have relations with his wife until he brings the birds - "v'Yashav mi'Chutz l'Ohalo Shiv'as Yamim."
ii. One might have thought that the bird may be kept to be Metaher a Metzora - "Teshalach" teaches that this is not so, it must be sent.

(a) (Mishnah - R. Yehudah): If one takes the mother from her young he is lashed, he does not send it;
(b) Chachamim say, he sends it and is not lashed;

1. The general rule is, we do not lash for any Lav ha'Nitak l'Aseh.

(c) (Gemara - R. Aba bar Mamal) Question: What is R. Yehudah's reason?

1. Does he hold that one is always lashed for a Lav ha'Nitak l'Aseh? 2. Or, does he [normally] exempt from lashes;

i. Here he is lashed, because he holds that the Mitzvah to send precedes the Lav, it does not correct it.

(d) Answer #1 (Beraisa - R. Yehudah): A thief or robber is lashed.

1. The Mitzvah "V'Heshiv Es ha'Gezelah" corrects the Lav "Lo Sigzol" - we conclude that R. Yehudah holds that one is lashed for a Lav ha'Nitak l'Aseh.

(e) Rejection (R. Zeira): We may not bring [proofs or] refutations from Beraisos [not in the Tosefta, they were] not authenticated by R. Chiya and R. Oshaya, perhaps they are mistaken.

(f) Answer #2 (Beraisa - R. Chiya and R. Oshaya): R. Yehudah says that if someone went back to take Shichechah, or harvested his entire field (without leaving Pe'ah), he is lashed (even though these are corrected by leaving what he took for the poor)!
(g) Rejection: Perhaps R. Yehudah holds that the Mitzvah to leave Matanos for the poor applies only before taking them (so the Lav is not Nitak l'Aseh).
(h) Answer #3 (Ravina - Beraisa - R. Yehudah): "You may not leave over [from Korban Pesach] until morning; you will burn what is left over" - the Torah gives an Aseh after the Lav, to exempt from lashes.

1. Conclusion: He exempts from lashes for a Lav ha'Nitak l'Aseh - he is lashed for taking the mother, because he holds that the Aseh precedes the Lav.

(i) Support (Rav Idi - Mishnah - R. Yehudah): If one takes the mother from her young he is lashed, he does not send it.

1. If he was Mechayev lashes for a Lav ha'Nitak l'Aseh, he should say "He is lashed and sends it"!

(j) Rejection (Rav Ashi): The Mishnah could mean, he cannot exempt himself from lashes by sending it.

(a) Question: How far must one send it?
(b) Answer (Rav Yehudah): He must send it until it leaves his hand.
(c) Question: How does one send it?
(d) Version #1 - Answer #1 (Rav Huna): He grabs it by the legs and sends it - "Meshalchei Regel ha'Shor veha'Chamor"
(e) Answer #2 (Rav Yehudah): He grabs it by the wings and sends it (the wings correspond to legs of an animal).
(f) Version #2 - Answer #1 (Rav Huna): [Even if one detached its wings and it cannot fly,] it suffices if he sends it so it can walk - "Meshalchei Regel ha'Shor veha'Chamor" (and then he may take it);
(g) Answer #2 (Rav Yehudah): He must send it with its wings (so it can still fly). (End of Version #2)
(h) A man took a bird from its young, plucked its feathers and sent it. Rav Yehudah lashed him, and told him to send it when its feathers grow back.
(i) Question: According to which Tana is this?

1. It is unlike R. Yehudah - he obligates lashes, but exempts from sending it!
2. It is unlike Chachamim - they exempt from lashes, but obligate sending it!

(j) Answer: Rav Yehudah holds like Chachamim; he gave lashes mid'Rabanan.
(k) Question (A man): What is the law regarding Teimah (a Tahor bird)?
(l) Answer (Rava): Surely, you know that one must send it!
(m) Question (the man): Perhaps it only lays one egg at a time!
(n) Answer (Rava - Mishnah): One must send the mother even if there is only one egg or chick in the nest.

1. The man sent it; Rava set a trap and caught it.
2. Question: Rava should have been concerned that the man will suspect that Rava obligated him to send it for Rava's own gain!
3. Answer: He set the trap far away, so the man would not see.

(a) (Beraisa): Regarding doves that nest in a dovecote or attic, one must send the mother, it is forbidden to take on account of Darchei Shalom (to avoid ill will).
(b) Question: R. Yosi b'Rebbi Chanina taught, a Chatzer (or attic or any land) acquires for its owner without his knowledge - if so, he owns the eggs, it is Mezuman, he should be exempt from sending the mother!
(c) Answer #1 (Rav): The obligation to send the mother begins when the majority of the egg is laid; the Chatzer does not acquire until the egg is in the [airspace of the] Chatzer (i.e. is fully laid);

1. The Mishnah obligates sending the mother after the majority is laid, before it is fully laid.
2. Version #1 (Rashi) Question: If so, why is it forbidden to take the eggs - they are Hefker, like the mother!
3. Answer #1: It is forbidden to take even the mother on account of Darchei Shalom.
4. Answer #2: Once an egg is mostly laid, the owner [of the Chatzer or attic] expects to get it, Chachamim enacted that others may not take it on account of Darchei Shalom (but the mother can fly away, it is Hefker).
5. Version #2 (Ramban) Question: [Granted, it is forbidden to take the mother on account of Darchei Shalom] - but why is it forbidden to take the eggs (the mother's owner is not confident of getting it, perhaps the mother will finish laying it elsewhere)?
6. Answer #1: The Mishnah only forbids taking the mother on account of Darchei Shalom.
7. Answer #2: Once an egg is mostly laid, the owner expects to get it, Chachamim forbid others to take it on account of Darchei Shalom.

(d) (Rav Yehudah): It is forbidden to acquire eggs while the mother is on them.

1. This suggests another answer to Question (b).

(e) Answer #2: Even though the egg was laid, since it is forbidden to acquire them, the Chatzer does not acquire them for the owner (Reuven).

1. Question: If so, why is it forbidden to take them on account of Darchei Shalom?

i. If the mother was sent - the Chatzer acquires them for Reuven, taking them is absolute theft!
ii. If it was not sent - one must send the mother (Rashi - before taking them)!

2. Answer #1: The Mishnah discusses a minor (he is not commanded in this or other Mitzvos).
3. Objection: Likewise, a minor is not commanded about Darchei Shalom!
4. Answer #2: The Mishnah obligates the minor's father to return the eggs on account of Darchei Shalom.

(f) Levi bar Sison transferred ownership of the yield of his dovecote to Rav Yehudah; Rav Yehudah asked Shmuel.

1. Shmuel: Hit the nest to acquire the eggs.
2. Question: Why is this necessary?

i. It is not needed to acquire them, he can acquire through Chalifin!
ii. Suggestion: It is to permit them on Yom Tov (they should not be Muktzah).
iii. Rejection: It suffices to say (before Yom Tov) "I will eat this one and this one"!

(g) Answer: The mother had never left the eggs from the moment she laid them until Levi sold them, so his Chatzer never acquired for him;

1. Shmuel instructed Levi to hit the nest, so the mother will jump up, allowing Levi to acquire so he can transfer ownership of them to Rav Yehudah.