A study of the laws of chodosh (lit. "the new grains") is a fascinating look at the development of halacha. As we will see, this often ignored and seemingly minor law generates much controversy, much of it centering on how to read and infer several passages in the gemara, both Babylonian and Jerusalem. Further, the common practice today actually follows a minority view that opposes the view held by most of the "big guns" whose names are best recognized. Our Chabura this week, while focusing on one particular aspect of the laws of chodosh, will also seek to trace the developmental trends in the evolution of this law.

Vayikra 23:14 states "And bread and flour made from parched grain and parched grain you should not eat until the middle (etzem) of that day, until you bring the sacrifice of your God." This verse refers to the 16th day of the month of Nissan (the first day of Chol HaMoed Pesach), when the Jews were commanded to bring the Omer-sacrifice, consisting of the first cutting of the new grain. Once this sacrifice had been brought, and grain that had grown in the past year was permitted to be eaten. However, until that point, this new grain, known as chodosh, could not be consumed, and only the grain from the previous year, known as yoshon, could be eaten. The Sefer HaChinuch explains this mitzva by stating that since bread is the main staple of a human diet, it is only fitting that we first consecrate all of our eating from the new crop by not eating any of it until we have brought a sacrifice to Hashem from it.

The gemara in Menachot 68a discusses further details of this law. Those people who lived close to Jerusalem (where the Omer was brought) could eat chodosh as soon as it was brought, while those far away could begin eating it at noon on the 16th, confident of the fact that the Sages would not delay the bringing of the sacrifice. Once the Temple was destroyed and the Omer was no longer brought, the issue became a little more complicated. Rav Yochanan Ben Zakkai decreed that one may not eat chodosh the entire day of the 16th (yom ha-neif), while a second view resolves a seeming contradiction between two verses by claiming that after the destruction of the Temple, chodosh is permitted once the sun begins to shine on the morning of the 16th. Rav Yochanan and Reish Lakish argue that even when the Temple stood chodosh was really permitted as soon as the sun shone, however the people had to delay their eating until the sacrifice had been brought. Thus, they claim that Rav Yochanan Ben Zakkai's decree is so that should the Temple be rebuilt today, people will realize that they cannot eat chodosh immediately in the morning, since they will not be accustomed to doing so. The gemara rounds off this discussion by stating that Rav Pappa and Rav Huna the son of Rav Yehoshua ate chodosh beginning on the night of the 17th of Nissan (after the 16th had concluded), since chodosh outside of Israel is d'oraita (Torah-ordained), and the decree of Rav Yochanan Ben Zakkai does not apply to the second day of the holiday kept in the Diaspora. However, Ravina waited until the night of the 18th (after the 17th had concluded), claiming that the decree does apply to the second day of the holiday.

The main question that arises from this gemara is the issue of chodosh that comes from grain grown outside of the Land of Israel. At first glance, it would seem that chodosh is a "mitzvah ha-teluya ba'aretz," a law that is intrinsically connected with the Land of Israel, and thus applicable only in Israel. If this is true, why would we think to apply it anywhere else (although, bear in mind that grain from Israel that is exported elsewhere would obviously be subject to this law)? For the beginning of our answer, we turn to the mishna in Kiddushin 36b, which states that all mitzvot ha-teluyot ba'aretz are applicable only in Israel, except for the laws of orla (the prohibition of eating the fruits of the first three years of a tree's production) and kilayim (forbidden mixtures of species). Rabi Eliezer adds in that chodosh also fits into this category. The main proof for this view comes from the fact that the verses discussing chodosh use the word "moshvoteichem" - your settlements, which is interpreted to mean that chodosh is forbidden wherever Jews live and wherever they grow grain (the opposing view does have an alternative explanation for this verse). Both Rosh and Ran codify this view as law.

However, all is not as simple as it appears. There are two main issues that arise with regard to the status if chodosh in the Diaspora. The first is the somewhat connected discussion as to whether or not the laws of chodosh apply to the grain grown by non-Jews. The second is a textual issue that plays off of several sources. We will begin with this second issue.

The last mishna in Orla (3:9) states that chodosh is forbidden everywhere. As there is no debate within this mishna, many commentators accept this statement as law. However, the Magen Avraham (Y.D. 293) points out that there is a fundamental problem with taking this position. While this position is uncontested in the mishna itself, the gemara does have an argument about this matter, and thus there is a situation of "stam v'achar kach machloket" - a uncontested view followed by a debate over that view. In such a case, we can not simply accept the mishna in Orla as an undebated opinion. As a result, the Magen Avraham states that the laws of chodosh outside of Israel are only Rabbinic in nature, and thus if we can possibly raise any doubts as to whether or not the grain is chodosh, we would adopt the lenient position and rule that it is permissible to eat. The Magen Avraham also deals with the word "moshvoteichem," claiming that it forbids the grain of Israel even when taken abroad, but does not refer to the grain of foreign lands. The Taz deals with this issue further. He approaches this topic attempting to find a rationalization for the many Sages who, in his day and previous, apparently were not careful with the laws of chodosh. His answer deals with a similar issue with regard to the mishna in Kiddushin already cited. He claims that since we do not know when particular laws within the mishna were taught relative to one another, then it is wholly reasonable for one to adopt the view of the first part of the mishna there, which does not include chodosh as a law that applies outside of Israel. Although the gemara may favor the view of Rabi Eliezer, the other view in the mishna is still valid and may be relied on, particularly when situations arose where grains (and beer in particular) made up such an overwhelming percentage of the daily diet that such restrictions would create a nearly-impossible situation (the Aruch HaShulchan discusses geographical and climatic differences between various European countries that would make chodosh easier or harder to observe in different areas).

From here we move to the issue of grain grown by non-Jews. The prevailing view among the Rishonim is that of Tosafot. They make an inference from the Yerushalmi that chodosh applies even to grain grown by non-Jews. The first opposition to this comes from the Mordechai, although not in the form of an opposing view. He states that chodosh is forbidden everywhere, although there was a practice in his time to buy beer from non-Jews in Europe. How was this so? People relied on the fact that there was a double-doubt (sfek sfeika) - they were unsure if the grain was the new grain or if it was a year old, and even if it was of the new year, it was possible that it had taken root before Pesach or not, and thus it may not have been chodosh at all (grain that takes root before Pesach nowadays becomes permissible by the end of the 16th or 17th of Nissan, depending on country, while any grain that takes root after that point may not be eaten until the following year). Since a sfek sfeika may override even a d'oraita law, the Mordechai claims that this practice did have something to rely on. However, he notes that if one were to know for sure that the grain was chodosh, then he may not eat it. Rambam (Hil. Ma'achalot Asurot 10), surprisingly, leaves out the entire law with regard to the grain of non-Jews, although Radvaz points out that this is only because it is so obvious that the law applies in such situations. The Hagahot Maimoniyot patently disagrees with the position of Tosafot. He states that there is no reason to forbid chodosh in modern times since most grain does take root before Pesach (and thus would be fine), plus imports were common and thus one could always obtain grain that was clearly not a problem.

The discussion begins to get nasty in the commentaries on the Tur and the Shulchan Aruch. The Beit Yoseif mentions a view of Rabbeinu Baruch, who states that chodosh no longer applies outside of Israel, even if the grain is grown by a Jew, based on the fact that the current Diaspora differs from the ancient one in that it is so distant from Israel. This notion has its roots in the laws of terumah, where there is a worry with regard to produce from outside of Israel, since it was very simple to cross in and out of Israel, and thus a person could easily transport his fruit across the Jordan River and attempt to exempt himself from terumah. Rabbeinu Baruch claims that this reasoning does not apply to people living in Europe, and thus the laws of chodosh are not applicable to Jews living there. The Beit Yoseif rejects this notion as ridiculous. The Bach, on the other hand, writes a long essay defending at least the position that chodosh does not apply to the grain of non-Jews. He argues that the reading of the Yerushalmi by Tosafot is wrong, and that the Yerushalmi says absolutely nothing about the grain of non-Jews. Further, he proves from the Book of Joshua that chodosh applies only to the grain grown by Jews (see Rosh HaShana 13a). This later proof is also cited by the Derisha, who claims that Rishonim such as Rav Avigdor and the Riva supported this proof. Both the Shach and the Taz, however, reject this opinion of the Bach. They claim that the view of Tosafot was adopted by most Rishonim (indeed, the Aruch HaShulchan is able to list the few who did not hold this view), and that the proof brought from Joshua is a misreading of the text, much the same way that the Bach claimed that Tosafot was misreading the Yerushalmi.

Despite the Magen Avraham and the Bach, it seems that the main opinion is that chodosh does apply nowadays outside of Israel, and it does apply to the grain of non-Jews. However, the view of the minority is the one that ultimately prevails. It is at this point that the most famous position supporting the non-practice of chodosh comes into play. The Ramo picks up on the sfek sfeika brought down by the Mordechai, and codifies it into law. He states simply that any grain that is not known to be chodosh can be eaten after the 17th of Nissan because of this double-doubt. To this view, the Aruch HaShulchan adds the view of the Or Zarua, one of the earliest Rishonim, who states that chodosh outside of Israel is only Rabbinic in nature, since if it were to be d'oraita then one would be allowed to bring the Omer from outside of Israel, a practice forbidden by the mishna in Menachot 83b (see discussion there). The Aruch HaShulchan celebrates the fact that the text of this Or Zarua had been recently found, thus providing what he feels is a solid view by a well-known Rishon to justify what had become a common practice, i.e. the non-observance of the laws of chodosh.

How do we explain this phenomenon? Across the board, the Rishonim and Acharonim on both sides of the debate seem to indicate that chodosh was not a law that many people, Torah-giants among them, regularly followed. Given the fact that the scales seem to be tipped decidedly in favor of the strict nature of this law, how do we explain this fact? While it is at times difficult to glean sufficient economic and sociological information from technical halachic writings, it is clear in many cases that keeping the laws of chodosh was a very difficult thing for a people who would be left with minimal food supplies. It is possible that the slacking off in observance was born of this practical need. However, this will likely not explain the entire situation. Certainly, several Sages who claim that chodosh is no longer applicable are not merely trying to justify a common practice, but seem to fully believe that it is a practice that by the letter of the law is anachronistic or merely a law that can be kept only in Israel. From their perspective, the question is reversed: how did faulty interpretations, such as that of Tosafot, manage to catch on among a majority of Rishonim? Were those Rishonim merely trying to prevent the extinction of an already-dying practice? It is somewhat difficult to decide this issue either way, but the evolution of this debate is highly instructive with regard to how halacha is molded over the course of time.

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