Halacha Talk
The Prohibition of Chodosh
The Zohar says, “Everything is dependent on mazal, even a sefer Torah in the Sanctuary” (Idra Rabbah, Naso, pg. 134a). In other words, just because the sefer Torah is there and available to use for krias HaTorah, does not necessarily mean that it will be used. It all depends on mazal.
The same applies to mitzvos. Some mitzvos are more famous than others, and some less so. Some are practiced more than others and some are the topic of more halachic debate than others.
The prohibition of chodosh, which we read about in this week’s parsha, is an unusual mitzvah. On the one hand, it is the subject of a massive halachic debate. Yet, nowadays, most people only have a small inkling as to what the mitzvah is and what all the fuss is about. Let us take this opportunity to try to understand some of these issues.
WHAT IS CHODOSH?
The Torah commands (Vayikra 23:14), “Bread, roasted flour and plump kernels, do not eat until this very day; until you bring the offering of your G-d.” This mitzvah refers to the prohibition of eating new grain before the omer offering is brought in the Beis Hamikdash on the sixteenth day of Nisan. New grain includes any wheat, barley, spelt, oats or rye that did not take root before the previous sixteenth of Nisan. These grains are called “chodosh” and are forbidden to eat until the following Pesach when the next korban omer will be brought. The prohibition of chodosh does not apply to the legume family, such as beans, corn, soy, peas, nor rice or millet (Rambam, Hilchos Ma’achalos Asuros 10:2-4; Shulchan Aruch, Yoreh Deah 293:1).
The korban omer, an offering made from barley harvested on the night following the first day of Pesach, permitted any grains that took root by the sixteenth of Nisan. This grain is referred to as “yoshon,” or “old” grain. Those living in Yerushalayim were allowed to eat the new grains immediately after the offering was brought, since they were in close proximity of the Beis Hamikdash and knew what transpired there. Those who lived outside Yerushalayim had to wait until chatzos (halachic midday) before consuming the new produce. They did not have to wait beyond that, because they could assume that Beis Din, who saw to it that the korban was offered, would not tarry beyond that time (Mishnah, Menachos 68a and Rashi ad loc.; Rambam, Ma’achalos Asuros 10:2).
AN OPTIMISTIC TAKANAH
This was true as long as the Beis Hamikdash stood and the omer offering was brought. However, from what time is one allowed to eat chodosh after the churban? The Gemara (Menachos 68a) discusses this. The Mishnah states that after the churban, Rabban Yochanan ben Zakai instituted that it is forbidden to eat chodosh the entire sixteenth of Nisan. The Gemara explains the reason behind this takanah is because Rabban Yochanan ben Zakai was concerned that the Beis Hamikdash could be rebuilt at any moment. If when there is no Beis Hamikdash, people would be allowed to eat chodosh from daybreak of the sixteenth, they may again eat the chodosh from the morning in the next year when the Beis Hamikdash would be standing. This of course will be incorrect, since once there is a Beis Hamikdash, they must wait until after the omer offering is brought.
Rebbi Yehudah takes issue with Rabban Yochanan ben Zakai and contends that there is no need to institute such a decree, as the Torah itself forbids the new grain on that day. He bases this on the posuk cited earlier, “Do not eat until this very day.” He understands that when the Torah uses the word “until,” it is inclusive and the prohibition applies to that day as well.
Rabban Yochanan ben Zakai on the other hand maintains that although the posuk says, “Until this very day,” the word “until” is non-inclusive. In other words, the sixteenth is not included in the prohibition of eating chodosh. Hence, min HaTorah, chodosh is permitted on the morning of the sixteenth. However, he instituted that chodosh is forbidden miderabbanan for the reason mentioned earlier.
Incidentally, it is worthwhile to point out that the Gemara deals with the fact that there are two seemingly contradictory phrases in the posuk quoted earlier: “Bread, roasted flour and plump kernels, do not eat until this very day; until you bring the offering of your G-d.” On the one hand, the posuk says not to eat chodosh “until this very day.” The posuk then continues, “until you bring the offering.” May one eat chodosh on the sixteenth in the morning, or does he have to wait until the offering is brought?
According to one opinion in the Gemara, the phrase “until you bring” is referring to the situation when there is a Beis Hamikdash and indeed one must wait until the omer is offered. However, the phrase “until this very day” is speaking about the situation when there is no Beis Hamikdash. This view maintains that in our days, when there is no Beis Hamikdash, chodosh is permissible min HaTorah from the morning of the sixteenth. However, Rabban Yochanan ben Zakai enacted a decree not to eat chodosh on that day, as perhaps the Beis Hamikdash will be rebuilt. (There is another view in the Gemara how to answer this contradiction.)
The halacha is that nowadays it is forbidden to eat chodosh in Eretz Yisroel the entire sixteenth of Nisan (Shulchan Aruch, Yoreh Deah 293:1). Some Rishonim pasken like Rebbi Yehudah that this prohibition is min HaTorah (Rambam, Ma’achalos Asuros 10:2; Rif and Rosh at the end of Pesachim), while others follow the opinion of Rabban Yochanan ben Zakai that the prohibition on the sixteenth is only miderabbanan (Meiri ad loc.). The fact that there is a disagreement whether the prohibition is midi’Orysa or miderabbanan, has a practical application for chutz la’aretz, as we shall explain presently.
YOM TOV SHEINI RAMIFICATIONS
The date when chodosh becomes permissible in chutz la’aretz is debated by the Amoraim. However, before discussing this further, a brief introduction is required.
As we all know, in Eretz Yisroel, the fifteenth of Nisan is Yom Tov, while the sixteenth is the first day of chol hamoed. In chutz la’aretz, on the other hand, the sixteenth is Yom Tov Sheini. What is the reason for an extra day of Yom Tov in chutz la’aretz?
Before the fixed calendar was instituted, Rosh Chodesh was declared based on the testimony of witnesses who saw the new moon and it was necessary to send messengers to the Diaspora to inform them of the date of Rosh Chodesh. Often, these messengers did not arrive before Yom Tov and the residents of that country had to observe two days of Yom Tov out of doubt as to which day was Yom Tov. When the fixed calendar was instituted, it was decided that residents of chutz la’aretz should continue to observe two days, as a safeguard that perhaps the calendar would one day become lost. This same doubt applies to our topic as well. Just as the sixteenth of Nisan is Yom Tov in chutz la’aretz as it “might” be the fifteenth, so too the seventeenth “might” be the sixteenth.
According to one of the Amoraim, since Rebbi Yehudah maintains that chodosh is forbidden min HaTorah on the sixteenth of Nisan, people in chutz la’aretz may not eat chodosh until after the seventeenth of Nisan. This is because, in a similar fashion to Yom Tov Sheini, the seventeenth “might” be the sixteenth. The halacha is that indeed, people in chutz la’aretz may not eat chodosh until the evening following the seventeenth of Nisan (Shulchan Aruch, Yoreh Deah 293:1).
CHODOSH IN CHUTZ LA’ARETZ
A major issue in the halachos of chodosh is whether this mitzvah applies to grain grown in chutz la’aretz. (Although we just discussed from what date chodosh becomes permitted in chutz la’aretz, that is relevant either according to the stringent opinions that chodosh does apply or if one were to export chodosh grains of Eretz Yisroel to chutz la’aretz.) This debate begins with the Tannaim. Several maintain that chodosh in chutz la’aretz is permitted, while others contend that it is forbidden (see Mishnah Orlah 3:9; Mishnah Kiddushin 37a; Beraisa, Kiddushin 38a).
This disagreement revolves around how to understand a word in the Chumash. When the Torah instructs regarding the prohibition of chodosh, it states: “An everlasting statute, for your generations, in all of your dwellings (b’moshvoseichem)” (Vayikra 23:14). The Tannaim who maintain that chodosh is forbidden in chutz la’aretz point to the word “b’moshvoseichem” as proof that chodosh is forbidden wherever Jews dwell, both in Eretz Yisroel and in chutz la’aretz (Kiddushin 37a).
The Tannaim who hold that chodosh does not apply in chutz la’aretz understand “b’moshvoseichem” differently. As is known, when Bnei Yisroel entered Eretz Yisroel under the leadership of Yehoshua bin Nun, they spent the first fourteen years conquering the thirty-one kings and their armies and dividing the land amongst the shevatim. They were not considered to be “dwelling” in the land until the conclusion of those fourteen years. Therefore, these Tannaim maintain that “b’moshvoseichem” indicates that the Bnei Yisroel were exempt from the mitzvah of chodosh during those fourteen years, until they actually “dwelt” in the Land (ibid. 38a).
Alternatively, they maintain that “b’moshvoseichim” does indicate that chodosh is applicable in chutz la’aretz – when the chodosh grains have been exported from Eretz Yisroel. However, grains that grew in chutz la’aretz are not included in the mitzvah (Yerushalmi Orlah 3:7 and Kiddushin 1:8).
After the era of the Tannaim, the disagreement regarding chodosh in chutz la’aretz continued among the Amoraim as well. Some maintain that is forbidden min HaTorah, and some argue that it is only a Rabbinic injunction (Menachos 68b).
ARGUMENTS OF THE RISHONIM
There is also a great debate among the Rishonim on this topic. Most Rishonim hold that chodosh that grew in chutz la’aretz is forbidden min HaTorah. Thus anyone eating a kazayis of chodosh, regardless of its origin, is liable the punishment of malkos (lashes) (Rif, Rosh and Meiri, Kiddushin 38a; Rambam, Ma’achalos Asuros 10:2).
On the other hand, there are two primary Rishonim who maintain that chodosh in chutz la’aretz is forbidden only miderabbanan (Rabbeinu Boruch [Baal Haterumos], cited in Shu”t HaRosh 2:1; Or Zaru’a, vol. I, #328).
In order to understand the disagreement of the Rishonim, a brief introduction is required. One of the undertakings of the Rishonim was to decide definitive halacha based on the discussions between Tannaim and between Amoraim recorded in the Gemara. In order to do so, the Rishonim had many rules to follow. Some of these rules are cited in the Gemara. The three such rules that are most relevant to our discussion are:
1) Halacha k’stam Mishnah – the halacha follows an anonymous Mishnah. Some mishnayos cite the names of the Tannaim when quoting their opinions. In others, the view of a particular Tanna is stated anonymously. The Gemara says in several places that the halacha follows an anonymous Mishnah.
2) Stam v’achar kach machlokes, ein halacha k’stam – If an anonymous Mishnah is followed by a Mishnah in which Tannaim debate the subject of the anonymous Mishnah, the halacha does not follow the anonymous Mishnah. The fact that the mishnayos were arranged as such indicates that the anonymous opinion is not straightforward, and cannot necessarily be relied upon as final halacha.
3) The opposite of the previous: Machlokes v’achar kach stam, halacha k’stam – if an anonymous Mishnah follows a Mishnah in which that issue is debated, the halacha follows the anonymous Mishnah.
We will later discuss the definition of one type of Mishnah “following” another.
We mentioned earlier that the Mishnah in Orlah (3:9) maintains that chodosh is forbidden in chutz la’aretz. That Mishnah is a “stam Mishnah,” an anonymous Mishnah, as it merely states: “Chodosh is forbidden everywhere according to the Torah.” For this reason, most Rishonim, following the rule of “halacha k’stam Mishnah,” maintain that chodosh is also forbidden in chutz la’aretz according to Torah Law.
However, those Rishonim who disagree and contend that chodosh is not forbidden min HaTorah in chutz la’aretz, point to the fact that there is a Mishnah in Kiddushin (37a) that cites a machlokes on this topic. There, the Tanna Kamma maintains that chodosh does not apply in chutz la’aretz, while Rebbi Eliezer says that it does. That being the case, these Rishonim contend that since Kiddushin follows Orlah, albeit many tractates later, it is a case of “stam v’achar kach machlokes,” where the halacha does not follow the stam Mishnah. Rather these Rishonim hold like the Tanna Kamma that chodosh is permitted min HaTorah in chutz la’aretz.
The counter-argument to this view is that although according to the order of Mishnayos that we have, Kiddushin indeed follows Orlah, that is not necessarily the order that Rebbi Yehudah HaNasi, the editor of the Mishnayos, taught them to his students. We know that in each particular mesechta, the order of the Mishnayos can be used to dictate the halacha based on the rules stated above. However, this is not the case from mesechta to mesechta (Biur HaGra, Yoreh Deah 293).
MINHAG VERSUS HALACHA
Now that we have seen that regarding chodosh in chutz la’aretz there has been halachic debate for well over a thousand years, starting with the Tannaim and continuing through the Rishonim, what is the final halacha? The answer is that it depends on how one defines “final halacha.” This is because the issue of chodosh in chutz la’aretz is one of the few areas in halacha where the minhag of the vast majority of people is not in line with the cut and dry psak halacha of the Shulchan Aruch. The Shulchan Aruch writes that the prohibition of chodosh applies both to grain that grew in Eretz Yisroel and in chutz la’aretz, whether the grain belongs to a Jew or a non-Jew (Yoreh Deah 293:2).
Although many Acharonim pasken like the Shulchan Aruch, such as the Vilna Gaon (ad loc.), Mishnah Berurah (489:45) and Shulchan Aruch HaRav (459:30), many go to great lengths to justify the minhag of being lenient.
THE DOUBLE DOUBT
One of the first Acharonim to find a basis to rule leniently is the Rama (Yoreh Deah 293:3). He rules that grain products after Pesach whose chodosh status is unknown are permissible because of the concept of “sfek sfeika” – a double doubt. This is a famous halachic concept where one is permitted to rule leniently even in the face of something forbidden min HaTorah. Normally, wherever one has a doubt whether something is prohibited by Torah Law, one must be stringent because of safek d’Orysa l’chumra. However, when it comes to a sfek sfeika, we generally rule leniently.
There are many approaches as to why a sfek sfeika can be used to rule leniently. According to one view, it is based on the fact that in halacha one generally follows the majority. In a sfek sfeika, the majority of possibilities favors leniency, therefore it is permitted (Shu”t HaRashba, vol. I, #401).
In order to understand how the sfek sfeika applies in this situation, we must first mention at what point of the year chodosh begins to be a problem. As we said, chodosh refers to grains that took root after the sixteenth of Nisan. That means that for the first few months after Pesach, all grains and grain products are completely chodosh-free, as any grains that took root after the sixteenth of Nisan will not be harvested until mid-to-late summer. Thus all grains until then became permitted after the day when the omer was offered. However, after the post-Pesach grains are harvested, there are two types of products in the market, those that are chodosh and those that are yoshon. This situation will continue until the following Pesach, when all grains become permissible again.
Thus, when a person goes to his local grain merchant, say in Elul, any given grain available for purchase has a sfek sfeika:
1) Perhaps this grain is pre-Pesach stock and became permitted on the sixteenth of Nisan.
2) Even if one were to contend that this particular grain was harvested after Pesach, perhaps it took root before the sixteenth of Nisan and anyway became permitted on the sixteenth of Nisan.
This approach of the Rama has a halachic advantage and disadvantage. On the one hand, even if one were to hold that the halacha follows those opinions that chodosh is forbidden in chutz la’aretz min HaTorah, nevertheless, by applying the sfek sfeika one can permit even something forbidden by Torah Law. However, the disadvantage here is that the sfek sfeika only applies in a situation where one does not know the grains’ status. If one knows that the grain was definitely planted after Pesach, one no longer has a sfek sfeika. Indeed, there are certain grains that are only planted after Pesach.
THE BACH’S HETER
Another basis for leniency is the opinion of the Bach (Yoreh Deah 293). Unfortunately, to fully explain his thesis is beyond the scope of this article. However, his main contention is that even if one we were to assume that chodosh in chutz la’aretz is forbidden, this only applies to grains planted by a Jew. Grains planted by a non-Jew are not subject to the mitzvah of chodosh.
Before introducing his arguments, the Bach writes, “However, the accepted custom in our countries is to be lenient. Even the Gedolei Torah of the previous generation, such as Rav Shachna and Rav Shlomo Luria (Maharshal) and their students did not forbid this and would drink beer made from grain not permitted by the omer, aside from some pious individuals who recently started being careful regarding this.” He goes on to say that he asked one of the great luminaries of the generation and presented him and the other Gedolei Torah with his thesis, “and no one could contradict me.”
After a lengthy discourse, he writes quite emphatically, “Therefore, no leader should rule stringently, the opposite of the custom – a custom based on the Gedolei Yisroel who permitted it. Whoever wishes to be stringent is following a midas chasidus and should not pasken this for others, in order that people do not come to argue. Only one who is accustomed to other ascetic behavior and is well-known as a chasid, is permitted to act stringently in this regard.”
An interesting footnote to the opinion of the Bach can be found in the sefer “Baal Shem Tov al HaTorah,” where in Parshas Emor it is reported that the Baal Shem Tov asked in a dream about the status of chodosh in chutz la’aretz. He was answered that after the Bach passed away, they cooled the fires of gehinom for forty days in his honor. In the morning, the Baal Shem Tov asked someone to bring him beer made from chodosh, and after drinking it, said, “The Bach is worth relying on.”
Similarly, the Avnei Nezer reported that his teacher, the Chozeh of Lublin, ate chodosh and said that since his ancestor, the Bach, permitted it, one need not be concerned (Shu”t Avnei Nezer, Choshen Mishpat #115).
Also, the Minchas Elazar of Munkatch related in the name of his father, the author of the Darkei Teshuva, that the Divrei Chaim of Tzanz would take issue with anyone who would argue that it is forbidden to eat chodosh in chutz la’aretz.
Although the Shulchan Aruch HaRav (Orach Chaim 489:30) justifies the minhag to be lenient, he nevertheless maintains that a “baal nefesh,” a conscientious person, should be strict and follow the opinion of the majority of Rishonim. It is interesting to note that even though the author of Shulchan Aruch HaRav, Rav Shneur Zalman of Liadi, was himself a great Chassidic leader, and he maintained that one should be strict, the general minhag among the Chassidic community is to be lenient.
THE PROTAGONISTS
As we mentioned, the Bach was very emphatic that chodosh is permitted in chutz la’aretz. However, it must be said that many Acharonim sharply disagree with him on virtually all of the issues that he raised. So much so, that the Vilna Gaon wrote that “all of the Acharonim already hit him on the head and he erred” in his approach (Biur HaGra, Yoreh Deah 293. See also Taz and Shach ad loc. and Magen Avrohom 489).
Those Acharonim who argued against the Bach’s approach found it necessary to try and explain the reason why, as per the Bach’s report, people were generally lenient regarding this prohibition. Some argued that apparently beer was a staple of their diet and they could not do without it. This necessitated them to rely on the opinion cited in the Mishnah that the mitzvah of chodosh does not apply in chutz la’aretz. Although most Rishonim follow the stringent view, the Taz maintains that since the Gemara itself did not decide the halacha, one can rely on the lenient opinion that permits chodosh in chutz la’aretz (Taz, Yoreh Deah 293:3).
The Aruch Hashulchan (Yoreh Deah 293:6) justifies the minhag of being lenient based on the Or Zaru’a, which was printed and made available in the Aruch Hashulchan’s lifetime. The Or Zaru’a maintains that chodosh in chutz la’aretz is not forbidden min HaTorah, but rather miderabbanan. He proves this from the fact that the Mishnah has two requirements for the omer offering: 1) it must come from Eretz Yisroel and not chutz la’aretz, and 2) that it be barley that is “chodosh” – new grain that had not been permitted by the previous year’s korban omer (Menachos 83b). He derives from this that the Torah only considers Eretz Yisroel grain as being “chodosh,” for had chutz la’aretz grain also been considered “chodosh” by the Torah, we would be able to bring the omer from chutz la’aretz as well.
The Aruch Hashulchan comments that had the earlier poskim who went to great lengths to justify the lenient minhag seen the Or Zaru’a, they would not have had to trouble themselves so much to substantiate the custom, as the Or Zaru’a’s approach is the most straightforward.
REMEMBERING HASHEM IS FOR OUR BENEFIT
As we mentioned, the Torah commands us not to eat the new grains until after the korban omer is brought in the Beis Hamikdash. This korban consisted of newly harvested barley, the first of the five species of grain to ripen. The Sefer HaChinuch explains (#303) that since grain is a main staple of one’s diet, it is only fitting to offer some of the new grain as a korban before benefiting from it ourselves. This is to drive home the message that everything we have comes from Hashem and that we have to constantly thank Him for all that He bestows upon us. By doing so, we bring ourselves closer to Him and thereby give Him the opportunity to shower us with even more good.
We have attempted in the short space provided to present the various issues involved in this mitzvah. It goes without saying that we have barely scratched the surface. As in most issues, and certainly regarding a matter as complicated as chodosh, it is not recommended to determine psak halacha from a newspaper column, rather from one’s rav.
