Deuteronomy 22:7  You shall send away the mother, and [then] you may take the young for yourself, in order that it should be good for you, and you should lengthen your days.

Gemora Hulin: 142(a): From the words “In order that it shall be good for you” we learn that just as an easy negative commandment [such as sending away the mother bird] the Torah states that the reward is long life, this is surely the case for more difficult commandments.

Torah Temimah – Colloquial translation of Note #68

The [Torah] refers to the command to cause minimal damage to the mother bird as a negative command. Regarding the explanation of the [famous] agada relating to this verse, see the commentary on Parshat VeEtchanan on the verse: Honor your father and mother in order that you shall have long life.

It is appropriate now to comment on the observation made by Chavas Yair on the Shulchan Aruch Section 67 regarding this mitzvah. The Chavas Yair questions whether the command to send away the mother bird [when taking the mother bird’s young for food] applies only when one wants to take the young for food or whether it is a commandment to shoo away the mother birds and take the young [whether you are desiring the young for food or not. Since the command is to chase away the mother bird, we can thereby fulfill a commandment of the Torah by doing so whether we are actually looking for food or not.]

All of the Chavas Yair’s comments on this issue are not necessary. I am personally amazed, in general, how one could possibly think to say that the Torah commands a person to involve himself in this mitzvah against his will [if he doesn’t want to collect the young birds for food.] Isn’t it indeed clear and beyond any doubt that the whole purpose of this mitzvah is to [train ourselves] not to be hard-hearted and to take the young while the mother bird is still crouching [nearby to protect them.] So, even though ultimately the purpose of all creation is for the sake of Man as is shown by the permission to slaughter animals for food, nevertheless the Torah commands us to only take the young in this manner so that the other bird won’t see her young being taken.

This being the case that the Torah is only providing us a permitted method, but certainly someone who does not desire the young for food, it is certainly appropriate for him to skip this entire mitzvah completely. Actually, the opposite is true. By skipping the mitzvah completely a person causes happiness to the mother and to the young by leaving them alone. There is absolutely no logic to say that there is a commandment to cause a separation between things that naturally belong together. This is similar to the commandment to not slaughter an animal and it’s young on the same day. There is clearly no command to actual slaughter one of them. So too with our situation here [with the mother bird.]

In addition to all that we have just stated based on reason and logic, on can also find legal precedent mentioned explicitly in the Chidushe ha’Ran comments on Gemora Hulin 140(a). There the Ran discusses the issue of a bird that has killed a person. In that case, a person is exempt from the command of chasing it away when taking its young, since one is obligated to capture the bird to bring it to the Court to fulfill the commandment of “you shall remove the evil from your midst”. The Ran asked the [legalistic] question of why the positive command plus the negative command relating to the sending away of the mother bird does not “overpower” or take precedence over the single positive command of “you shall remove the evil from your midst”. The Ran answers this question by stating that the commandment of “removing the evil from your midst” is an obligatory commandment while the commandment of the sending away the mother bird is not an obligatory commandment since if he doesn’t want the young for food there is no command to chase away the mother bird.

So behold, the Ran’s words explicitly support my explanation above. It is a wonder that the Chavas Yair and other commentators who so deeply question this point and none have even brought the proof from the Ran [mentioned above.]

Regarding the other point that we wrote above concerning the main reason for the command of sending away the mother bird is to teach us to not be hard-hearted towards the mother bird, [please] don’t reply to me and quote the Mishna Brachos 33(a): If one says “may Thy mercies extend to a bird’s nest…he is silenced. The gemora goes on to say that he is silenced because he presents the measures taken by the Holy One, blessed be He, as springing from compassion, whereas they are but decrees. Indeed this would imply apparently that the reason for this command is not to teach mercy.

Really this is no contradiction at all to what I said earlier. The reason why we are obligated to heed G-d’s commandments is truly because they are decrees from G-d. We do not obey G-d’s commandments only because of the purpose that is hidden within them. If that were the only reason for doing G-d’s commands, it would be possible to stray off the true path in each man following his own point of view according to his knowledge and his spirit. This is as is noted in Gemora Sanhedrin 21(b) where it discusses the question of why the reasons for the commandments were not revealed. The answer given there is that indeed for two commandments reasons were explicitly given and this led righteous people to stumble and err regarding these commandments.

Translator Note: This lengthy somewhat legalistic note stresses the Torah Temimah’s view that the Torah and its commandments are whole and good. For him it is unthinkable that one should go out of his way to chase away the mother bird and take the young even if one had no need for the food. Some have suggested that one should indeed do this because one is then fulfilling a command written in the Torah! To the Torah Temimah, this approach does not make any sense at all and ignores the whole reason for the commandment.

Halitzah in our days Deuteronomy 25:10 “And his name shall be called in Israel the house of him that had his shoe loosed. ”

Jerusalem Talmud Yevamoth chapter 12 halacha 6: “And his name shall be called …   The one who says that halitzah is praiseworthy learns from similar language.  It says here[1] “and his name shall be called …”.  It says there “and let my name be named in them[2]“.  Just as the calling in verse in Genesis refers to something praiseworthy, so too the calling in reference to halitzah is praiseworthy.

Torah Temimah Colloquial Translation on Note #167

It seems that the general intention of this explanation is because, at face value, the process of halitzah and calling the brother-in-law “the house of him that had his shoe loosed” appears to be derogatory in order to embarass him for not performing the leverite marriage thus not creating a name for the deceased brother as it is written: “So shall it be done unto the man that doth not build up his brother’s house.[3]  This makes sense when the man has a choice to perform halitzah or leverite marriage.  By choising halitzah, he must endure this emberrassment.  As we (Ashkenazim[4]) hold today, even if a man wants to perform leverite marriage, we only allow him to perform halitzah because of various reasons.  [Peraps he does not have the right intentions.  There is also the injunction of Rabbeinu Gershom prohibiting one from having more than one wife.  According to some Poskim, this applies even in the case of mitzvah, such as leverite marriage].  As such, it is difficult to comprehend why we publicize his degradation when, from his perspective, he prefers to perform leverite marriage.  Based on this some opions hold that, in our days, the mitzvah of halitzah is preferred over the mitzvah of leverite marriage.  This opion interprets “And his name shall be called in Israel” not as derogatory, rather praiseworthy as in the verse “And My name shall be called in them (gen 48:16) because this man obeys the law, performing halitzah when he would prefer to perform leverite marriage.  This homily supports this by comparing the similar language of “and shall be called” to “and let my name be named in them”, which is praiseworthy.  Take note.

This still does not explain why he must bear the degradation of the procedure of halitzah: the loosening of the shoe and the spitting, etc., for he does not have the fault of not performing the leverite marraige as explained.  This could be a proof to the what of many of the Rishonim write that the essence of halitzah, aside from permitting the widow to marry anyone else, is a spiritual fixing of the soul of the deceased.  Refer to Nachmanides, Rabeinu Bechaye and the literature of the Acharonim.  Thus the crux of the question is from the publicizing aspect of halitzah rather than the procedure itself.

Editors Note

This homily shows the sensitivity of the halacha to the brother-in-law.  At face value, the verse implies that the preferred mitzvah is leverite marriage is preferred.  Halitzah is performed when the brother of the deceased does not perform leverite marriage, partly to publicize his refusal to do so and partly to allow the wife of the deceased to marry anyone else.  Yet there are instances, such as a kohen gadol, where the brother-in-law is not allowed to perform leverite marriage even if he so desires.  The Tractate Yevamoth discusses other instances where one may not perform leverite marriage because of a rabbinic injunction.  It also discusses whether leverite marriage or halitzah is preferred.  One opinion is that leverite marriage is preferred.  Abba Shaul says that halitzah is preferred because most people do not have the proper intention to perform leverite marriage.  Thus, no matter how the halacha rules.  One is praiseworthy for upholding the halacha.

[1] Deuteronomy 25:10

[2] Genesis 48:16

[3] Deuteronomy 25:9

[4] The Shulhan Aruch allows leverite marriage.  The Ramah forbids it.  Ashkenazi practice follows the Ramah.  Rabbi Ovadiah Yosef, Z’TL, defends the practice of leverite marriage for Sephardim.

Deuteronomy 23:21 “Unto a foreigner thou mayest lend upon interest; but unto thy brother thou shalt not lend upon interest; that the LORD thy God may bless thee in all that thou puttest thy hand unto, in the land whither thou goest in to possess it. {S}”

Sifrei: Unto a foreigner thou mayest lend upon interest is a positive commandment. But unto thy brother thou shalt not lend upon interest is a prohibition

Torah Temimah Colloquial Translation on Note #108.

According to Maimonides in chapter 5, halacha 1 of the laws of lending, this is an explicit positive commandment as he explains the language of the verse in Parashat Reeh: “Of a foreigner thou mayest exact it; but whatsoever of thine is with thy brother thy hand shall release.[1]“.  According to the Raavad and other Rishonim, this commandment comes to add another positive commandment for a Jew who lends with interest aside from the prohibition of lending without  interest..  The verse uses similar language with respect to kosher birds “any pure bird you shall eat”, whose main idea is to underscore the prohibition of eating unclean birds.  There are similar example expressed in this language.

One can bring support to Maimonides position from the sections of the gemara (Bava Metziah 71a) which expound on the verse: “If thou lend money to any of My people, even to the poor with thee, thou shalt not be to him as a creditor; neither shall ye lay upon him interest.[2]”  When one has a choice between lending to a Jew or lending to non Jew, lending to a Jew takes precedence.  The gemara asks: is it not intuitive that lending to Jew takes precedence?  It answers even when you could profit by lending to a non Jew with interest or interest free to a Jew, lending to a Jew takes precedence.  This is truly astonishing.  Is it possible that when one wants to make a profit with one’s money we tell him not to make a profit rather to give the money benevolently?  That is when he wants to loan to a non Jew with interest, we tell him that it is better to give it benevolently.  We find no such mitzvah.  Thus the position of Maimonides makes sense.  When one wants to fulfill the commandment of lending with interest to a non Jew and lending without interest to a Jew at the same time, the verse teaches that lending to a Jew takes precedence over lending with interest to a non Jew.  Take note.

According to Maimonides, do not be astonished why the Torah commands one to lend with interest to non Jews, as many of the oppressors of Israel and its Talmud have murmured   For when the Children of Israel went forth from Egypt to receive the Torah, they were a lone nation.  The agreed amongst each other to act benevolently one to another with money and commodities.  This is the intent of the commandment not loan another Jew with interest: you don’t charge your fellow Jew interest and he won’t reciprocate.  Regarding the other nations, however, who lend to Jews with interest, it is appropriate that the Jews also lend to them with interest. This is like a group of partners who agree not to charge each other interest, but to others they will charge interest.  This occurs every day in every nation where different groups form for different financial matters, providing rules and perks for its members,, but not for outsiders.  In any case, it becomes clear that lending to non Jews with interest is a commandment based on the principles of maintaining social order and human society.  As such, all that the murmurs claim is foolishness and striving for naught.[3]  The Torah, truth and peace is its seal.

Editor’s note: The Torah Temimah was a banker by day.  Wearing his financial hat, he eloquently defends lending to non Jews with interest.  Although the Torah permits one, or according to Maimonides commands one, to lend to non Jews with interest, a Jew must abide by the local laws and lending practices. because a Jew must also abide by the law of the land[4].

[1] Deuteronomy 15:3

[2] Exodus 22:24

[3] Ecclesiastes 2:17

[4] Dina d’malchuta dina – the law of the land is law.