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חיות LIVING [BIRDS] — This term excludes רפות‎ט, birds that suffer from some fatal organic disease (חיות does not only mean “living”, but also “capable of continuing to live”).

THEN SHALL THE PRIEST COMMAND TO TAKE FOR HIM THAT IS TO BE CLEANSED TWO LIVING, CLEAN ‘TZIPORIM’ (BIRDS). “Living, this excludes birds which are treifah.⁷Treifah according to the accepted opinion (see Note 9 below), is an animal or bird suffering from one of certain organic diseases from which it is bound to die within twelve months, even though it be ritually slaughtered. Thus the word living excludes a bird which will die from a disease. Ramban further on will comment on this point. Clean, this excludes a bird unfit for food. Since the plagues of leprosy came as a punishment for slander, which is done by chattering, therefore Scripture required for the leper’s cleansing that he bring birds which always twitter with a chirping sound.” This is Rashi’s language.
Now in view of the fact that Rashi wrote, “Clean, this excludes a bird which is unfit for food,” we can deduce that the [unqualified] term tziporim does not denote a permissible species of birds, but is instead a generic term for all birds [those permissible as food and those forbidden]. If so, the question appears: what is this “chirping” that they found [among the tziporim]? For there are many birds among which there is none that openeth the mouth, or chirpeth!⁸Isaiah 10:14. Moreover, the interpretation [which Rashi quoted]: “Living, this excludes birds which are treifah,”⁷Treifah according to the accepted opinion (see Note 9 below), is an animal or bird suffering from one of certain organic diseases from which it is bound to die within twelve months, even though it be ritually slaughtered. Thus the word living excludes a bird which will die from a disease. Ramban further on will comment on this point. is really subject to a controversy of opinion,⁹I.e., in Tractate Chullin 140a we find a difference of opinion among the Rabbis as to whether a treifah animal or bird can in fact survive for more than one year. and according to the Sage who says that a treifah⁷Treifah according to the accepted opinion (see Note 9 below), is an animal or bird suffering from one of certain organic diseases from which it is bound to die within twelve months, even though it be ritually slaughtered. Thus the word living excludes a bird which will die from a disease. Ramban further on will comment on this point. can survive, this interpretation [of Rashi] is not correct. And in the Torath Kohanim we find this interpretation:¹⁰Torath Kohanim, Metzora 1:12. “Living, not slaughtered. Clean, not unfit for food. Clean, not treifoth.”¹¹In his commentary to the Torath Kohanim, Malbim explains this text as follows: “First [the Tanna of this Beraitha] explains the simple meaning of the verse, saying: ‘Living means not slaughtered; clean means not unfit for food.’ Then [the Tanna] says that according to the Midrash thereof, clean means not treifah, since that it may not be of a forbidden species, we know already from the word tzipor. This Sage further holds that a treifah can survive, and therefore birds which are treifah are not excluded by the word living,” but instead are excluded by the term clean. Now the scholars who follow the simple meaning of Scripture¹²Ibn Ezra on this verse, and R’dak in his Book of Roots, under the root tzipor. say that every kind of bird [whether permissible as food or forbidden] is called tzipor, as is evidenced by the verses which state: ‘tzipor’ (the fowl) of the air, and the fish of the sea;¹³Psalms 8:9. every ‘tzipor’ (bird) of every sort;¹⁴Genesis 7:14. And thou son of man … speak ‘l’tzipor’ (unto the birds) of every sort.¹⁵Ezekiel 39:17. Similarly, it says, and ‘hatzipor’ (the birds) he did not divide,¹⁶Genesis 15:10. with reference to the turtle-doves and young pigeons¹⁷Ibid., Verse 9. [which are permissible birds, thus proving that the term tzipor is used with reference to both permissible and forbidden birds].
The correct interpretation appears to me to be that the term tzipor is a generic term for all small birds that rise early in the morning to chirp and to sing, the term being associated with the Aramaic word tzaphra (morning). Similarly, the expression let him return v’yitzpor’¹⁸Judges 7:3. means, and arise “early in the morning.” The expression ‘tzipor’ (the fowl of) the air¹³Psalms 8:9. is said with reference to these small birds, because it is mostly they that fly high in the air. Every ‘tzipor’ (bird) of every sort¹⁴Genesis 7:14. refers to two kinds, all the little ones and the big ones. If a ‘kan tzipor’ (bird’s nest) chance to be before thee¹⁹Deuteronomy 22:6. speaks about the little ones which are many [and therefore likely to chance to be there], to teach that even when they are young, the finder must exercise mercy towards them. Similarly, therein ‘tziporim’ (the birds) make nests²⁰Psalms 104:17. [means the little ones], for it is they that dwell on the boughs of the cedars of the Lebanon. Speak ‘l’tzipor’ (unto the birds) of every sort¹⁵Ezekiel 39:17. means that even the little ones should gather upon [the flesh of the mighty that have fallen in battle],²¹Ezekiel 39:18. for the big marauding birds will come by themselves. Similarly, Wilt thou play with him [the leviathan] ‘katzipor’ (as with a bird)? Or wilt thou bind him for thy maidens?²²Job 40:29. [refers to the little birds], for it is the way of young boys to play with little birds. The language of the Sages also follows that usage: Any statue which bears in its hand a staff or ‘tzipor’ (a bird)²³Abodah Zarah 40 b. Now the emblem of the bird, as explained in the Gemara (41 a), is “a symbol that [the idol in question] causes itself to be caught like a bird on behalf of the entire world.” Hence the reference in the word tzipor must be to a small bird that can easily be caught. Rabbeinu Chananel explains the text of the Gemara in the following words: “he holds the whole world in his hand as one holds a bird.” Here too the reference is to a small bird that the holder can easily control in the palm of his hand. [one may not derive any benefit from, since these objects indicate that the statue is worshipped as an idol]; “If a man wove into a garment one sit’s length of a Nazirite’s hair [from which one is forbidden to derive any benefit], the garment is to be burnt,”²⁴Terumah 34 a. A sit is the distance between the tips of the outstretched thumb and forefinger. [and when the Sages of the Gemara raised the question, “why is this small piece not neutralized by the larger part of the garment?” it was answered that this is a case where he wove into the garment “the form of] a tziporta” [a small bird, which made the whole garment more valuable, and therefore it is not neutralized by the larger part thereof, and hence must be burnt].²⁵Rashi, ibid. From this too it is clear that the term tzipor denotes a small bird. The Sages also speak of “tziporoth (birds of) the vineyard [however small].”²⁶Shabbath 90 a. The Mishnah there in speaking with reference to taking out any object from one domain to another on the Sabbath, states: “for tziporoth (birds of) the vineyard, whether alive or dead, [he is liable], however small [the size be].” It is thus clear that the word tzipor is used by the Sages to mean a small bird, which even when alive is “however small.” They also said: “the meat of tziporim (birds) brings back a sickness to a sick man [who is recovering, and makes it worse”²⁷Berachoth 57 b. Having proven that the term tzipor refers to a small bird, Ramban now begins to elucidate further that it means both a permissible and forbidden species of bird. Here in the text of Berachoth it definitely means a permissible bird, but further it will be shown that it may mean also a forbidden bird. thus indicating that the term tzipor refers to a bird which one may eat]. Scripture further states, All ‘tzipor’ (birds) that are clean ye may eat,²⁸Deuteronomy 14:11. meaning all these many species of [permissible] birds, thus including [the living bird sent away by] the leper [into the open field²⁹Verse 7. as permissible food],³⁰Ramban here alludes to a question that was raised in the Gemara (Chullin 140 a), as to whether the living bird of the leper that is sent into the open field is permissible to be eaten if caught by someone. To this the answer was given that one is permitted to eat it; for since the Torah stated ‘All’ birds that are clean ye may eat (Deuteronomy 14:11), meaning any bird of a permissible species that is found may be eaten, now if the living bird of the leper were forbidden to be eaten, the Torah would not command the bird to be sent off, as this could involve a possible offense [since if the bird were not in fact permitted to be eaten, one might catch it without knowing that it had been used by the leper, and eat it]! Now, concludes Ramban, this permission is based in the Talmud on the word ‘all’ (‘All birds etc.) as explained above. This proves that the word tzipor, such as found here in the text before us, does not of itself only mean a permissible kind of bird. Rather, since it is a term for both the permissible and forbidden kind, it was therefore necessary for the Torath Kohanim here to establish that the leper’s bird must be of a permissible species, from the word clean qualifying tziporim. by means of the word kol (‘All’ birds that are clean ye may eat).²⁸Deuteronomy 14:11. And the verse which states, But these are they of which ye shall not eat: the great vulture, and the bearded vulture, and the osprey³¹Deuteronomy 14:12. Having established that the word tzipor means “a small” bird, whether of a permissible or forbidden kind, Ramban finds this verse difficult, since the expression of them [in translation of the verse: “of which”] apparently refers back to ‘kol tzipor’ (birds) mentioned in the previous verse [11], and yet it mentions here (in Verse 12) big birds like the great vulture, etc. In addition, the word tzipor in Verse 11 is explicitly qualified by the word ‘t’horah,’ thus excluding the great vulture. Ramban’s answer follows in the text, where he explains that the expression of them does not refer back to ‘kol tzipor’ (all birds) previously mentioned, but rather means “of their flesh,” i.e., the flesh of these big birds about to be mentioned — the great vulture, etc. is [to be understood] as if it said, “and these are they, from the flesh of which ye may not eat.” It is for this reason [i.e., since the term tzipor includes both permissible and forbidden birds], that the Sages found it necessary to interpret:¹⁰Torath Kohanim, Metzora 1:12. “Clean, not forbidden birds” [but they would not have been able to derive it if the word tziporim had not been qualified]. In any case it is clear that tziporim are the small chirping birds. Similarly, Yea, the ‘tzipor’ hath found a house, and the swallow a nest for herself³²Psalms 84:4. also indicates that the word tzipor is not a name for all birds [for otherwise why should the verse mention both tzipor and the swallow, if the term tzipor already includes all birds]. Likewise, Wherein tziporim (the birds) make their nests, the stork makes the fir-tree her house³³Ibid., 104:17. [indicates that tziporim does not include all birds, since the verse proceeds also to mention some specific birds].
It would appear from the words of our Sages that all birds permissible as food are called tzipor, but the leper was commanded to bring tziporei dror [“free birds,” a term which, as explained further on means birds which live in the house as well as in the field], for we have been taught in the Torath Kohanim:³⁴Torath Kohanim, Metzora 5:13. “And he shall let go the living bird out of the city into the open field.³⁵Further, Verse 53. Rabbi Yosei the Galilean said: ‘This means a bird that lives outside all cities. And what kind of bird is it? It is the bird called dror’” [the free bird that lives in the house as well as in the field]. It is on the basis of this interpretation of the Rabbis that they further mentioned [in connection with the leper’s birds] that they “chatter” [since it is usually these free birds which twitter].
It is possible that the requirement that the birds be of “the free” kind is a commandment [which is to be observed if possible, but is not indispensable], so that if it has already been done, they are all valid [whether free or unfree]. Therefore the Sages in the Torath Kohanim¹⁰Torath Kohanim, Metzora 1:12. found it necessary to exclude forbidden bird’s [which do not possess this characteristic of living in the house and in the field]. And so we have been taught in a Mishnah of Tractate Negaim:³⁶Negaim 14:1. “And he [the leper] brought two birds that are of the free type of bird.” And it is furthermore taught there:³⁷Ibid., 5. “It is a commandment that the two birds of the leper should be alike in appearance, in size and in value, and that they should be brought at the same time. Yet even if they are not alike, they are valid. If one was slaughtered and it was found that it was not a ‘free bird,’ he should buy a partner for the second one.” The reason [why he must buy a partner for the second one] although [as we have said above] if it has already been done, all birds [whether free or unfree] are valid, is that if they were of two different kinds [as in this case, where the slaughtered one was a non-dror, and the living one a dror], they are invalid. And in the Chapter Eilu Treifoth³⁸“These are accounted treifah” among cattle. It is the third chapter of Tractate Chullin. The text quoted here is found there on 62 a. For the word treifah, see above, Note 7. the Sages of the Gemara have said: “A bird which scratches, is valid to be used for the purification of the leper. This is the white-bellied swallow concerning which Rabbi Eliezer and the Sages differed” [as explained further on]. From these texts [it is clear] that the birds for the purification of the leper are not limited to one species, and that the purification is not to be done with any permissible bird, but rather the commandment is that it be done only with those birds that are dror, that is to say, “which live in the house as well as in the field.”³⁹Shabbath 106 b. Therefore the Rabbis said [in the above-quoted text] with reference to the white-bellied swallow, that since according to the Sages it is a bird which may be eaten, it is also valid for the purification of the leper, as it is included within [the category of those birds that are] dror [living in the house as well as in the field]. Yet nonetheless all permissible birds [even those that are not “free birds”] are valid, if the purification of the leper has already been done with them, since they are all included within the phrase, two living clean birds.
And we have been taught in the Sifre:⁴⁰Sifre, R’eih 103. See in Seder Vayikra Note 121, on Sifre. “Rabbi Yashiyah said: ‘Wherever it says in Scripture tzipor, it speaks of a permissible bird.’ Said Rabbi Yitzchak: ‘A permissible bird is called oph (fowl) and also tzipor (bird), but a forbidden one is only called oph.” Similarly the Rabbis mentioned also in the Gemara [of Tractate Chullin], in the Chapter Shilu’ach Hakan,⁴¹“The letting of [the dam] go from the nest.” It is the twelfth chapter of Tractate Chullin, discussing the law stated in Deuteronomy 22:6-7. The text quoted here is found there on p. 140 a. where they resolved that the term living [two ‘living’ clean birds] means “the ends of whose limbs ‘live’ (exist), thus excluding birds from whom a limb is missing.” Similarly [permissible] birds which are treifah⁷Treifah according to the accepted opinion (see Note 9 below), is an animal or bird suffering from one of certain organic diseases from which it is bound to die within twelve months, even though it be ritually slaughtered. Thus the word living excludes a bird which will die from a disease. Ramban further on will comment on this point. are invalid [for the purification of the leper]. The Rabbis also interpreted there⁴¹“The letting of [the dam] go from the nest.” It is the twelfth chapter of Tractate Chullin, discussing the law stated in Deuteronomy 22:6-7. The text quoted here is found there on p. 140 a. the term clean [two living ‘clean’ birds] to exclude those birds which are of a permissible species but are forbidden to be eaten [for some special reason], such as birds belonging to a person of a city that went astray,⁴²See Deuteronomy 13:16-18, that all the belongings thereof are to be destroyed. or a fowl that killed a human being, or those that have been exchanged for an idol.⁴³Thus if one received birds of a permissible species as payment for an idol, they are nonetheless forbidden for any use, just as the original idol may not be made any use of. This interpretation was derived by the Sages from the very language itself, since the term tzipor denotes only a permissible bird. It is clear then from this text, that all permissible birds [whether they are of the dror-type or not] are included within the category of tzipor.
I have further seen in the Yerushalmi of Tractate Nazir⁴⁴Yerushalmi Nazir I, 1. — To understand the name “‘Yerushalmi of Nazir,” it is important to note that after the Mishnah was completed by Rabbi Yehudah Hanasi — also known as Rabbeinu Hakadosh — in the Land of Israel [about the year 200 of Common Era] it formed, the basis of study in all academies of learning. But whereas hitherto all the great Yeshivoth were concentrated in the Land of Israel, after the completion of the Mishnah two groups of Yeshivoth came into prominence: those of the Land of Israel, and those of Babylon. Thus for a number of generations there existed side by side two groups of academies where the Mishnah was studied and interpreted. In the course of time, the continuous Roman persecutions forced the closing of the Palestinian schools of learning; but before they were finally closed, the Rabbis compiled their teachings in what is known as the Talmud Yerushalmi i.e., the Jerusalem Talmud. The academies in Babylon flourished for many centuries longer. Their teachings were later compiled [about the year 475 of Common Era] and are known as the Babylonian Talmud. To this day Talmudic study is almost exclusively devoted to the Babylonian Talmud, so that any tractate of the Talmud generally cited, is that of the Babylonian Talmud, unless specified as in the case before us: “the Yerushalmi of Tractate” so-and-so. A tradition has it that after the redaction of the Jerusalem Talmud, its Sages went down as a group to Babylon, and most of their teachings were incorporated into the text of the Babylonian Talmud. This explains why Talmudic study throughout the ages was concentrated almost entirely upon the Babylonian Talmud, while only the outstanding Rabbis of the generations devoted their studies also to the Jerusalem Talmud. that the Sages of the Gemara said: “But does an impure Nazirite really bring tziporim?⁴⁵The question refers back to a statement in the Mishnah which reads: “If a person said, ‘I pledge myself to offer tziporim (birds),’ Rabbi Meir says that he becomes a Nazirite etc.” The reason for this opinion of Rabbi Meir was explained there in the Gemara by Resh Lakish, that it is because a Nazirite whose consecration has been defiled, must bring tziporim as an atonement (Numbers 6:9-11). On this explanation of Resh Lakish, the Gemara asked: “But does a Nazirite really bring tziporim? It is turtle-doves or young pigeons that he brings!” In other words, tziporim means birds which are of a forbidden kind, while the Nazirite must bring birds which are permissible to be eaten! So how could the reason Resh Lakish advanced to explain Rabbi Meir’s opinion be correct, since tziporim (forbidden birds) are not used at all by a Nazirite! — Ramban is thus beginning at this point to refute his own explanation which he had set forth, namely, that tzipor refers only to a permissible bird, since it is evident from the Yerushalmi that tzipor means a forbidden bird! The final solution of the Yerushalmi follows. It is turtle-doves or young pigeons that he brings! [To this question the reply was made:] ‘There are some authorities who teach that all edible birds are called tziporim, and there are other authorities that teach that all birds, whether permissible or forbidden, are called tziporim.’”⁴⁶Hence he who said, “I pledge myself to offer tziporim, becomes a Nazirite even according to those authorities that hold that the term tziporim denotes all kinds of birds, permissible ones or forbidden ones, for since it also denotes permissible birds, his intention was those birds that may be brought upon the altar (P’nei Moshe). Thus we are now left with a divergence of opinion [as to what the term tzipor denotes]! Yet it is possible that the name applies only to the small birds. This appears so in the Gemara from what the Rabbis have said in Tractate Sotah:⁴⁷Sotah 16 b. [In the process of his purification the leper is commanded to] “bring a sufficient amount of water that the bird’s blood may remain discernible in it.⁴⁸Verse 5 here reads: And the priest shall command that one of the birds shall be slaughtered in an earthen vessel over running water. On this the Sages commented that the vessel must contain just enough water that the blood of the bird is discernible in it. And how much etc. (see text). And how much is this? The fourth of a log.” Upon this the Sages queried: “If the bird was a large one so that the blood thereof ‘pushed away’ the water [so that it was imperceptible], or the bird was a small one so that its blood was ‘pushed away’ by the water [so that the blood was indiscernible], what is the ruling on these cases?” On these questions [the Rabbis of the Talmud] explained: “All standard measures laid down by the Sages were fixed with precision. The Sages estimated with reference to a ‘free bird’ that you will not find one so big that the blood thereof will ‘push away’ the water, nor will you find one so small that the blood thereof will be ‘pushed away’ by the water.” Now if all kinds of permissible birds were valid for [the purification of the leper], there are some birds the blood of which would “push away” many logim of water! Perhaps the Sages established the above standard only with reference to a “free bird” which one is commanded to bring if this is possible, according to the interpretation of Rabbi Yosei the Galilean,⁴⁹See text of Ramban above, quoting the Torath Kohanim at Note 34. [but if the purification has already been done with a large bird, it is also valid]. It has already been mentioned in the Gemara:⁵⁰Shebuoth 29 a. “Perhaps he saw a large tziporo (bird) and he called it gamal (camel).”⁵¹This text clearly shows that the term tzipor includes also large birds, and hence the above-mentioned explanation that it refers only to small birds is incorrect.
The correct [and final] conclusion which emerges from all this discussion is that we say on the basis of this interpretation⁴⁹See text of Ramban above, quoting the Torath Kohanim at Note 34. that any bird which is not a “free one” is invalid for the purification of the leper, even if the purification has already been done, since in the Mishnah thereof³⁷Ibid., 5. it was not taught: “It is a commandment [to be fulfilled if possible] that the birds should be ‘free birds,’ but even if they were not ‘free birds,’ they are valid,” as it taught concerning the requirement of equality [in appearance, size and value, that “even if they are not alike, they are valid”]; also, the correct conclusion is that all birds that are “free birds” are those that chatter. And that which the Rabbis said in the Torath Kohanim,¹⁰Torath Kohanim, Metzora 1:12. “Clean, not those forbidden as food,”⁵²Ramban’s meaning is as follows. On this exclusion of forbidden birds by the Torath Kohanim one might ask: “Since, as we have now established, the dror-characteristic of the bird is indispensable in the purification of the leper, meaning that if the birds did not have this quality of living in the house as well as in the field, the purification is invalid even if already done, why was it necessary for the Torath Kohanim to point to a special Scriptural source for the exclusion of forbidden birds; for such birds are not of the kind that live in the house as well as in the field, and we have said that if the birds lack this characteristic, the purification is invalid?” Ramban answers that we must perforce say that even among forbidden birds there are some species that do have this characteristic of being able to live in the house as well as in the field, and hence it was necessary for the Torath Kohanim to exclude them by means of a special expression in the verse. is because even among the forbidden birds there are some species that possess this quality of dror [living in the house as well as in the field], such as the white-bellied swallow according to Rabbi Eliezer.⁵³Mentioned above in the text, at Note 38. Or perhaps the meaning of the Torath Kohanim is that it excludes those birds [whose prohibition is not because they belong to the forbidden species, but because of special circumstances] which make them “forbidden to you,” such as those birds which are nonetheless forbidden [as food or benefit, because they belonged to a person of a city that had gone astray,⁴²See Deuteronomy 13:16-18, that all the belongings thereof are to be destroyed. or those that have been exchanged for an idol],⁴³Thus if one received birds of a permissible species as payment for an idol, they are nonetheless forbidden for any use, just as the original idol may not be made any use of. or those which are treifah,⁷Treifah according to the accepted opinion (see Note 9 below), is an animal or bird suffering from one of certain organic diseases from which it is bound to die within twelve months, even though it be ritually slaughtered. Thus the word living excludes a bird which will die from a disease. Ramban further on will comment on this point. just as the Rabbis resolved in the Gemara in the Chapter Shilu’ach Hakan.⁴¹“The letting of [the dam] go from the nest.” It is the twelfth chapter of Tractate Chullin, discussing the law stated in Deuteronomy 22:6-7. The text quoted here is found there on p. 140 a. This is the correct interpretation in my eyes. In the Agadah of the [Midrash] Rabbah we find this statement:⁵⁴Vayikra Rabbah 16:7. “Rabbi Yehudah the son of Rabbi Simon said: These birds [brought by the leper for his purification] are noisy ones, symbolic of he who speaks slander [and as a punishment for which, the slanderer is stricken with leprosy]. Said the Holy One, blessed be He, ‘Let that which is accompanied by sound [namely, these noisy birds] come to bring atonement for the evil sound [of the slanderer].’ And Rabbi Yehoshua the son of Levi said: The birds [brought by the leper for his purification] are of the ‘free kind’ [that live in the house as well as in the field] and thus ate of the leper’s bread and drank of his water. Now the following statement follows logically with stronger reason etc.”⁵⁵“If these birds that ate of his bread and drank of his water, effect atonement for the leper, how much more so do the priests who enjoy twenty-four kinds of gifts, effect atonement for Israel!” (Ibid.).

וצוה הכהן ולקח למטהר, and the priest will command to take for the person to be purified, etc. According to Torat Kohanim the priest issues the instruction but anybody is authorised to take the birds. In the following verse Torat Kohanim again understands that according to the view of Rabbi Yehudah son of Rabbi Yossi the priest issues the instructions but that any non-priest is qualified to slaughter these birds. Rabbi disagrees, insisting that also the slaughtering of the birds must be performed by a priest. Why did Rabbi Yehudah son of Rabbi Yossi and Rabbi not disagree concerning what is written in verse 4?If we were to assume that in verse 4 the word וצוה applied only to another verb, i.e. ולקח instead of to an object, this is not an adequate reason as even in verse 5 the word וצוה refers to another verb, namely ושחט, and we do not know that it refers to any other object. In fact, in verse 4 we are entitled to assume that the word וצוה implies that the birds be brought to the priest and he would receive them personally from those who bring them to him so that he would perform two commandments, something that is not so in verse 5 if we read it to mean that the words וצוה ושחט apply to one and the same person, i.e. the priest.