Q. Is there an issue when one finds a bird's nest outside one's home in regards to the Mitzvah of Shiluach Hakan?
A. The Talmud (Chulin 138b) derives from the verse (Bamidbar 22:6) "If a bird's nest chances before you on the road, on any tree, or on the ground", an exclusion to the mitzvah of shiluach hakan. Namely, it does not apply if you already posses the eggs in the nest that is in your property. And so it is codified in Shulchan Aruch (Y.D. 292:2).
However Poiskim differ if a remedy exists. If one would declare, prior to the eggs being laid, that he does not have intent to acquire the future eggs, they will not be his, as you cannot force ownership on anyone. Would there be then a mitzvah of shiluach hakan?. Hisorerus Hateshuva ( 4:154) claims that you will comply with the mitzvah, while Horav Shlomo Auerbach Zt"l (Minchas Shlomo 2:97:26) has misgivings, as this may still be considered "in your property".
There is a further Halachic disagreement, as to when you don't want the eggs at all, but you have the nest in front of you, do you still have to comply with the mitzvah and send away the mother-bird. Piskey Teshuva (Y.D. 292:1) provides the different opinions involved.
Horav Shlomo Miller's Shlit"a opinion is that in this particular case, when the eggs are not yet laid, you don't have the responsibility to bring yourself to comply with the mitzvah. However, if you had the intention of not acquiring the eggs, as mentioned before, you would fulfill an important mitzvah, providing that the mother bird is a kosher bird.
Rabbi A. Bartfeld as revised by Horav Shlomo Miller Shlit"a
Ps. Please see question: Is a robin kosher? Posted on Ask the Rabbi – Frum Toronto, on 7/26/2009
Important Numbers
