2020/5780

Introduction
             The Torah in Vayikra (23:14) presents the prohibition against eating Chadash grain. The Torah forbids eating grain that has taken root after the sixteenth of Nissan until the subsequent sixteenth day of Nissan has passed. For example, we may not eat grain that was planted on the fourth day of Iyar 5777 until the sixteenth day of Nissan 5778. This prohibition applies to the Chamishah Minei Dagan (five species of grain): wheat, barley, rye, oats, and spelt. When the Bait Hamikdash functions, Chadash is rendered permissible when the Korban Omer is offered on the sixteenth day of Nissan. In the regrettable absence of the Bait Hamikdash, we must wait until the end of the sixteenth day of Nissan to consume Chadash. Outside of Israel, we must wait an additional day.
             In Israel, observant Jews scrupulously abide by this prohibition. However, the great majority of observant Jews residing outside of Israel have followed a lenient approach towards this issue for many centuries. In this essay, we will discuss the basis of this lenient practice. Interestingly, the Orthodox Union has recently taken steps to facilitate following the stricter approach regarding Chadash. 

Does Chadash Apply in Chutz La'aretz?
             The Torah (ibid.) writes that the Chadash prohibition applies "in all your dwelling places." This seems to imply that the Chadash prohibition applies throughout the world. Nevertheless, the Tannaim debated whether the Chadash prohibition applies only in Israel or even in the Diaspora. Rabi Elazar's opinion that Chadash applies everywhere is recorded in the Mishna (Kiddushin 37a). The Tanna Kama of that Mishna, however, argues that this prohibition applies only in Israel. This opinion interprets the phrase "in all your dwelling places" as teaching that the prohibition applies to grain that grew in Eretz Yisrael even if the grain is exported from Eretz Yisrael (see Yerushalmi Kiddushin 1:8). Thus, the Tanna Kama believes that the Chadash prohibition does not apply to grain grown in Chutz La'aretz.

Most Rishonim rule in accordance with Rabi Elazar in light of the statement of the Mishnah (Orla 3:9) that "Chadash is biblically prohibited in every place." These Rishonim include the Rambam (Hilchot Maachalot Assurot 10:2), the Rif (Kiddushin 15a in the pages of the Rif), the Rosh (Kiddushin 1:62), and the Tur (Orach Chaim 489). The Shulchan Aruch (Orach Chaim 489:10 and Yoreh Deah 293:2) also rules in accordance with this opinion.

The Aruch Hashulchan (Yoreh Deah 293:5) notes that a minority of Rishonim believe that Chadash outside of Israel is only Rabbinically forbidden. These Rishonim include the Or Zarua (328), Rabbeinu Baruch (the author of the Sefer Hateruma, cited in Teshuvot Harosh 2:1), the Raavan (as understood by Teshuvot Mishkenot Yaakov 64), and the Maharil.

The Or Zarua seeks to prove that Chadash is only Rabbinically prohibited in Chutz La'aretz based on Menachot 83b-84a. The Mishna (Menachot 83b) states that the barley used for the Korban Omer must have grown in Eretz Yisrael. The Gemara (Menachot 84a) implies that if one believes that the barley used for the Korban Omer cannot be from Chutz La'aretz, then he must believe that the prohibition to eat Chadash in Chutz La'aretz is only Rabbinical in nature.

The Or Zarua notes how difficult it was to observe Chadash in the area in which he resided (thirteenth-century Germany and France). He concludes that since it is a situation of great difficulty (Sha’at HaDechak), we may rely on the Mishna in Menachot that seems to imply that Chadash is forbidden only Rabbinically. Therefore, one may be lenient in a case of doubt. This ruling is based on the celebrated rule that one may be lenient in case of doubt when dealing with a rabbinically prohibited matter (Safek DeRabanan LeKula). Thus, one may be lenient regarding Chadash since one does not know whether the grain took root before the sixteenth of Nissan or after the sixteenth of Nissan.

Interestingly, Tosafot (Kiddushin 36b s.v. Kol Mitzvah) writes that if one is unsure if barley is Chadash he may eat it. Tosafot explains that one may assume that the barley has emerged from the majority of barley which is planted before Pesach. This is an application of the Talmudic principle of Kol DeParish MeRuba Parish, "whatever emerges, emerges from the majority." One should note that Tosafot's lenient approach is relevant only when most of the grain has taken root before the sixteenth of Nissan. Moreover, we should note that Tosafot obviously does not subscribe to the Or Zarua's approach to the Chadash issue.

The Taz also notes the difficulty to observe Chadash in his area (seventeenth-century Poland) and defends the lenient practice of the Jews of his area. The Taz (Yoreh Deah 293:4) notes that the Gemara does not definitively conclude that the Halacha follows Rabi Elazar. Accordingly, in cases of Shaat HaDechak, one may rely on the opinion of the Tanna Kama that Chadash does not apply in Chutz La'aretz. The Shach (Nekudot Hakesef 293:4) sharply dissents. He argues that the aforementioned Mishna in Orla unambiguously concludes that the Halacha follows Rabbi Elazar. The Vilna Gaon (Biur Hagra Yoreh Deah 293:2) concurs with the Shach.

Chadash Observance in Lands That Are Distant from Israel
             Rabbeinu Baruch (the author of the Sefer Hateruma, cited in Teshuvot Harosh 2:1) argues that Chadash outside of Israel is forbidden only rabbinically. He further agrees that the rabbinical decree to observe Chadash outside of Israel applies only in those lands that are close to Israel, such as Egypt. He notes that when Chazal instituted that Terumot and Maaserot be separated in Chutz La'aretz, they imposed this rule only in the lands that are close to Israel (see Rambam Hilchot Terumot 1:1).

             The Magen Avraham (489:17) and the Aruch Hashulchan (Yoreh Deah 293:20-21) conclude that this is the most convincing defense of the practice to be lenient regarding Chadash. Nonetheless, the Magen Avraham counsels that a scrupulous individual should try to avoid relying on this very lenient approach. Furthermore, the Vilna Gaon (Biur Hagra Yoreh Deah 293:2) vigorously rejects this leniency.

The Rama's Approach and Rav Akiva Eiger's Critique
             The Rama (Yoreh Deah 293:3) presents an interesting, albeit puzzling, approach to this issue. He writes that one may be lenient regarding Chadash if the following Sefeik Sfeika (double doubt) is applicable. One doubt is if the grain was planted before the previous sixteenth of Nissan. The second doubt is that perhaps the grain is from a previous year. This approach appears difficult, as noted by Rav Akiva Eiger in his glosses to the Shulchan Aruch (ibid.). It seems that this is not a legitimate Sfek Sfeika since this is simply one doubt - did the grain take root before the sixteenth of Nissan or not?

The Lenient Approach of the Bach
             The Bach (in his comments to Tur Yoreh Deah 293 s.v. Ketiv Vilechem) notes that in his area of residence (sixteenth-century Poland) almost everyone (including great Rabbis) was lenient regarding the Chadash issue. The Bach cites a number of lesser-known Rishonim who assert that Chadash does not apply if the grain grows in a field owned by a non-Jew. The Bach writes at length in an attempt to defend this approach. He cites the Gemara in Rosh Hashana (13a) which states that one may not offer the Korban Omeir from barley that grew in a field owned by a non-Jew. The Bach then notes that according to the Gemara in Menachot (84a) Chadash does not apply to grain that is not suitable to be used for the Korban Omer. Accordingly, the Bach concludes that Chadash does not apply to grain that grew in a field owned by a non-Jew because that grain is not suitable for the Korban Omer.

This celebrated approach of the Bach elicited much criticism. The Shach (Yoreh Deah 293:6), the Taz (293:2), and the Vilna Gaon (Biur Hagra 293:2) vigorously reject this approach. Indeed, Tosafot (Kiddushin 36b s.v. Kol) specifically states that the Talmud Yerushalmi indicates that Chadash applies to grain grown in a field that is owned by non-Jews. Moreover, the Shulchan Aruch (Yoreh Deah 293:2) rules that Chadash applies to grain grown in a field owned by non-Jews. Nevertheless, Teshuvot Mishkenot Yaakov (64) writes at length in defense of the Bach from his many eminent critics. 

Acharonim
             Many Acharonim (cited by Pitchei Teshuva Yoreh Deah 293:1 and Encyclopedia Talmudit 12:628 note 84) wrote at great length to defend the lenient practice of the overwhelming majority of observant Jews. The Aruch HaShulchan (Yoreh Deah 293:18) describes how it was nearly impossible to follow the strict approach in his area (nineteenth-century Russia). He notes that very few people follow the strict approach. He strives to defend the lenient approach and concludes, "All the Jewish people are free from sin." Interestingly, a number of individuals have informed this author that Chassidim (including Satmar) abide by the lenient approach to Chadash. Indeed, there is a legend that the Baal Shem Tov heard a heavenly voice declaring that the Halacha follows the Bach.

The Mishna Berurah (489:45) notes that most observant Jews adopt the lenient approach to the Chadash issue. He writes that although one should not criticize one who follows the lenient approach, a Halachically scrupulous individual should adhere to the Chadash restrictions as best as he can. In the Biur Halacha (489:10 s.v. Af), the Chafeitz Chaim laments the fact that some people adopt an "all or nothing" attitude towards Chadash. He writes that just because one cannot observe the strict approach to Chadash at all times at the highest level of observance, it does not mean that one should not observe it at all. He writes that one should do his best to observe the strict approach to Chadash as often as possible. Accordingly, we should applaud the Orthodox Union for taking steps to facilitate stricter observance of Chadash for those who wish to follow the stricter opinion. 

Contemporary Authorities
             This author heard Rav Yosef Dov Soloveitchik (at a Shiur at Yeshiva University) relate that he follows the lenient approach to Chadash. Rav Moshe Snow (a student of Rav Moshe Feinstein) told this author that Rav Moshe Feinstein's Yeshiva in the Lower East Side of Manhattan (Mesivta Tifereth Jerusalem) followed the lenient approach to Chadash and Rav Moshe ate the Yeshiva's food. On the other hand, both Rav Aharon Soloveitchik and Rav Aharon Lichtenstein follow the strict approach to Chadash. Indeed, some claim that perhaps today we should be stricter in our observance of this Halacha. They note that it is relatively easier for us living in North America to follow the stricter approach than it was for our ancestors. 

The Sephardic Approach - Rav Ovadia Yosef and Rav Shlomo Amar 

Rav Ovadia Yosef (Yalkut Yosef Yoreh Deah 293) notes that Maran, Rav Yosef Karo, adopts the strict approach to Chadash, that the prohibition applies even in Chutz LaAretz and even to grain grown by a non-Jew.  Yalkut Yosef concludes that Sephardic Jews should adopt the strict approach in regards to Chadash, in accordance with the ruling of Rav Karo.  

A leading American Sephardic Rav told me that he does not understand why Chacham Ovadia adopts such a strong stance rejecting the Rama’s Sefeik Sefeika approach.  After all, this rabbi noted, Rav Yosef is renowned for his liberal usage and application of Sefeik Sefeika.  For example, Chacham Ovadia permits Sephardic Jews in case of great need to eat meat that is Glatt/Halak by Ashkenazic standards but not by Sephardic standards based on a Sefeik Sefeika (Teshuvot Yabia Omer 5: Yoreh Deah 3).  

Why then in regard to Chadash does he reject a Sefeik Sefeika articulated by the Rama?  Why cannot a similar Sefeik Sefeika be made that perhaps the Bach (or one of the other lenient approaches to Chadash) is correct and perhaps the grain one is consuming is Yashan?  In fact, this rabbi notes that the Kaf HaChaim (Orach Chaim 499:110) cites and endorses the defense of those who adopt a lenient approach to Chadash (although he strongly encourages one to follow the strict opinion whenever possible).  

I presented the American rabbi’s approach to Rav Shlomo Amar when he visited Teaneck’s Congregation Shaarei Orah Shabbat Nachamu 5777.  Rav Amar defended Rav Ovadia that it is a Safeik regarding which facts can be determined (Efshar L’Hitbareir).  Accordingly, since it can be readily determined whether a product is Chadash or not based on a product’s production date stamped on the item, the Rama’s Sefeik Sefeika no longer is relevant.  Thus, Rav Amar reinforces Rav Yosef’s strict stance regarding Chadash.    

The leading American Sephardic rabbi countered that in his investigation of the facts, it emerges that the production date only informs consumers when the product was made but not whether the item was made from grain that is Yashan.  The Rav did note, though, that some disagree and insist that the situation is Efshar LeHitbareir based on the food production date stamp.  This Rav notes that this is a dispute among leading North American Rabbanim (Rav Moshe Heinemann and Rav Shlomo Miller) about reality, regarding which it is impossible to determine who is actually correct.  Thus, the matter remains as a Safeik and thus the Rama’s Sefeik Sefeika remains in effect even for Sephardic Jews in case of great need.  Moreover, the Peri Chadash validates a Sefeik Sefeika even if it is Efshar L’Hitbareir.  

Conclusion
             One should not disparage someone who follows the lenient approach to Chadash, as he has ample Halachic basis for this practice. Similarly, an Ashkenazic Jew should not feel guilty if he adopts the lenient approach to Chadash, for he is most likely observing Chadash in the same manner as his ancestors did for the past thousand years. However, those who adopt the strict approach (especially Sephardic Jews) should be commended for being strict regarding a Torah prohibition.