This essay was originally published in the print edition of
1996.
Part I
For Part II of this series click here.
One of the most outstanding phenomena of our generation has been
taking place behind the scenes and away from the limelight. It is
not a revolution of non-frum Jews but one that has taken place
within the frum community itself. It can be called the chizuk
bemitzvos revolution.
The posuk in Parshas Nitzovim (Devorim 30,1),
predicts: "When you have endured the brochos and
klolos then you will return... you will return to Hashem
and listen to his voice in a manner consistent with all which I
have commanded you."
The generation which preceded World War II, the churban of
European Jewry, witnessed a sharp decline in shemiras
hamitzvos both quantitatively as well as qualitatively. Thus
many people fell prey to the Reform, the Zionist, the Communist
movements, decreasing the number of Torah-true Jews.
At the same time very often even those who remained frum were not
immune to alien movements either. There was a decline in the level
of shemiras hamitzvos as well.
In recent years there has been a constant teshuvoh
movement. Thus many people who were raised in a non-frum
environment have returned to Hashem and his Torah. At the same
time the frum world has become more medakdeik in
mitzvos.
Examples of increased dikduk bemitzvos abound. We find
mitzvos such as loshon hora which were once almost unknown
that have become household words. Today many frum neighborhoods
have continuing activities such as shiurim in shemiras
haloshon, mishmeros of people who have accepted certain
hours to be extra scrupulous in avoiding loshon hora and/or
an annual loshon hora rally.
Once shatnez testing was unorganized, unreliable and
uncommon. Today, who would buy a garment without checking it first
with a shatnez laboratory? Boruch Hashem the list of
mitzvos is quite long and still growing.
One of the mitzvos whose observance is becoming ever more
widespread is chodosh — the prohibition against
eating grain from the new crop before the second day of Pesach.
This trend is worldwide, encompassing almost any land where frum
Jews reside.
We shall see that along with the increased popularity of this
mitzvah, chodosh observance has become considerably easier
as well. This is not unusual. It merely illustrates what Chazal
have taught us, (see Rashi to Shemos 19,5) kol hascholos
koshos. In our free market economies, the more people there
are doing any particular thing, the easier it gets as the market
"directs" resources toward meeting the growing demand.
In this essay, we will explain the background of the prohibition
against eating chodosh, as well as the halachic basis used
to justify eating products that were known or suspected of being
chodosh.
Source of the Issur of Chodosh
The Torah commands us in Parshas Emor (Vayikra
23,14), "You shall not eat bread, flour and grain until this very
day, until you have brought Hashem's korbon." This refers
to bringing the minchas ha'omer that was brought from the
new barley crop. In the time of the Beis Hamikdosh, no one
was allowed to partake of any produce from the new grain crop
until after the korbon ha'omer was offered on the sixteenth
day of Nisan.
Following the churban Beis Hamikdosh, one could eat
chodosh from the morning of the sixteenth of Nisan, but
Rabbi Yochonon ben Zachai decreed (cf. Succa 41) that on
the entire sixteenth day of Nisan one may not eat chodosh.
Therefore, in Eretz Yisroel one can start eating the new crop on
the seventeenth of Nisan, the second day of chol hamoed, and in
chutz la'aretz, due to sfeiko deyomo, one must wait
until the onset of the eighteenth day of Nisan, which is the
second day of chol hamoed there.
The very first Mishnah in Maseches Challah teaches
us that the prohibition of chodosh extends to the five
types of grain: wheat, barley, rye, oats and spelt. This
Mishnah also notes that one may not harvest the new crop
before the bringing of the omer.
The sixteenth day of Nisan represents not only the first day that
one could possibly eat new grain (in the time of the Beis
Hamikdosh) but it is also a cutoff date as well. Any grain
plant that is among those to whom chodosh applies whose
seed has taken root by that date, is permissible that year even
though the grain itself develops later. Even though the grain is
not yet ready to be harvested, since it has already rooted by this
date, it is permitted to be eaten that year already. When such
grain is eventually harvested one is allowed to immediately
partake of the grain.
We pasken (cf. Shach on Yoreh Deah 293,2) that it
takes 3 days for a plant (in contrast to a tree) to root.
Therefore, a plant must be sown by the thirteenth of Nisan in
order to be permitted that year.
We find in Chazal (cf. Rashi on Noach 8,22) that
traditionally (in the Middle East) grain was planted in the fall
and harvested in the spring. Thus the only possibility of
chodosh was if the grain ripened early, before Pesach. One
could not harvest or eat the new grain until after the korbon
ha'omer, but this would involve little or no waiting since the
grain did not ripen much before Pesach if at all.
This remains the practice today in Eretz Yisroel and in several
other countries as well. Grain is planted in the fall and, by the
time one normally harvests it in the spring, there is no problem
of chodosh. Thus, there is never a problem with grain grown
in Israel.
In the United States, Canada and several other countries there are
two wheat crops: one is planted in the fall and is known as winter
wheat. The other is planted in the spring and is known as spring
wheat. Winter wheat follows the schedule described above and does
not pose any problem. Chodosh problems in these countries
apply to spring wheat and they begin at the time the new spring
wheat crop is harvested in the summer or fall.
In the United States, what is known as "spring wheat" is planted
in the spring and harvested in late summer. In most years the
majority of this crop is planted after Pesach. Such spring wheat
is not allowed to be eaten until the following Pesach.
The other four grains also can also be categorized as being either
the winter or the spring variety. In the United States, barley and
oats are spring crops and pose a problem, whereas rye and spelt
are winter crops and, therefore, they are chodosh free.
(This does not imply that rye bread is chodosh-free since
rye bread usually contains wheat flour as well.)
One would perhaps think that with two different types of wheat to
choose from, one could simply avoid chodosh by using only
winter wheat in the problematic periods.
This is not practical, however, in general. Winter wheat has a
different chemical composition from spring wheat. Spring wheat has
a higher gluten content and, therefore, it is a required
ingredient in items such as bread and pasta.
A somewhat similar situation exists in England. There are also two
crops: a winter variety and a spring variety. However, in contrast
to the United States, almost the entire spring crop is sown in
late February and early March — in time to meet the Pesach
deadline for being permissible the same year. The one hitch is
that due to the low gluten content of even its spring wheat,
England imports spring wheat from Canada for bread products.
Therefore, even in locally produced products one may encounter a
problem with chodosh.
We introduced these examples in order to glimpse where one can
encounter chodosh-related problems. We will now discuss the
past history of chodosh and its halachic
implications.
Chodosh in Europe
We mentioned previously that in Eretz Yisroel the natural planting
cycle enables one to observe chodosh without any great
difficulty. However, when Jews were exiled to Europe the problem
manifested itself severely. Strict observance of chodosh
was extremely difficult and perhaps even impossible on a community-
wide basis, because of various conditions that we will discuss
later.
The main problem was often the drinks, since beer made from grain
was the major drink in Europe. Since the people were strictly
observant of the Torah, many rabbonim were approached in order to
ascertain whether a heter could be found to eat
chodosh products.
We will, therefore, examine first the halachic basis for
both the issur as well as some of the major heteirim
expounded by our acharonim.
The grave of the Shaagas Aryeh
Chodosh in Chutz La'aretz
Generally, mitzvos that are related to agriculture apply
exclusively to produce grown in Eretz Yisroel. One would,
therefore, expect that chodosh would apply only in Eretz
Yisroel, at least from the Torah.
The Mishnah in Kiddushin (36B) takes up this
question. The Mishna states, "Every agricultural mitzvah
applies only to Eretz Yisroel except for orlah and
kilayim. Rabbi Eliezer says that chodosh is another
exception."
Thus, we find a dispute in the Mishnah whether
chodosh applies to the produce of chutz la'aretz.
Another Mishnah which discusses chodosh in chutz
la'aretz is found in Maseches Orloh (3,9). This
Mishna states unequivocally, "Chodosh is prohibited
by the Torah throughout the entire world."
Thus, we find that while there is a dispute amongst the
tanaim, still Rebbi, chose to bring only one opinion, the
strict one, on one occasion in the Mishna.
The major rishonim all rule that the Torah issur
applies even to produce grown in chutz la'aretz. Thus, both
the Riff (Kiddushin 15A) and Rosh (Kiddushin 1,62)
write, "We uphold the opinion of Rabbi Eliezer since there is also
an uncontested Mishnah that follows his opinion."
Similarly the Rambam rules (Ma'acholos Asuros 10,2),
"Anyone who eats a kezayis of chodosh before the
omer has been offered receives malkus as prescribed
by the Torah. This applies in any place and at any time whether in
Eretz Yisroel or in chutz la'aretz whether there is a
Beis Hamikdosh or not."
Most other rishonim including the Tur, share this
opinion.
The Shulchan Oruch states unequivocally (Yoreh Deah
293,2), "The prohibition of chodosh applies both in
chutz la'aretz as well as in Eretz Yisroel."
Rabbeinu Boruch claims that the Torah's issur applies only
in Eretz Yisroel and the rabbonon extended the issur to
countries which border on Eretz Yisroel. According to him, Europe
is not subject to any issur of chodosh. The Rosh in
his responsa (2,1) totally disapproves of this opinion as does the
Gra and others.
Due to the extenuating circumstances in Europe, there are some
acharonim who maintain that those who did not scrupulously
observe chodosh relied upon this opinion of Rabbeinu
Boruch. This is the opinion of the Magen Avrohom (Orach
Chaim 489, 17). However, he concludes, "Nonetheless, a
ba'al nefesh should be scrupulous whenever possible."
A Heter of the Ramo
Another limud zchus on those who were lenient is stated by
the Ramo himself (Yoreh Deah 293,3). He explains that we
can rely upon a sfek sfeiko — a double doubt whether
there is an issur of chodosh.
1) Perhaps the grain is from last year and 2) even if it is from
this year, perhaps it was planted before Pesach.
He himself admits that often one does not have both doubts and
would, therefore, not be able to rely upon this heter. He
says that whereas one should personally be stringent, it is better
not to inform others of the issur since it is better that
they should act out of ignorance and not transgress knowingly.
The Ramo's last statement is based upon a Terumas Hadeshen
who writes, "If the snow and frost lasted until Pesach... if the
people drink mostly beer then every G-d fearing person must be
stringent for himself, but he should not teach others since they
will certainly not listen since they mostly drink beer. It is
better that they act out of ignorance [than knowingly break the
issur]. If, however, the majority drinks wine then one may
teach others that beer is only one sofeik (that the beer
was made with last year's crop and therefore not forbidden).
Even the sfek sfeiko which the Ramo alludes to is atypical
compared to the usual sfek sfeiko. It is problematic (cf.
Rabbi Akiva Eiger and the Shach) and was probably only introduced
due to the difficult situation that prevailed at the time.
The Magen Avrohom (ibid.) brings that in Poland,
circumstances don't allow for this sfek sfeiko since the
majority of grain is planted after Pesach. As we mentioned earlier
this is the typical situation with United States spring wheat as
well today. Therefore, according to this, in most situations this
heter does not exist today.
Even in years when the majority of available spring wheat is not
chodosh, Rav Moshe Feinstein says (in a teshuvoh
available from the chodosh hot line) that one should try to
be stringent. Due to the marketing pattern in the United States,
Reb Moshe discusses not the question of sfek sfeiko but the
question whether one can say kol deporish merubo porish a
principle that says when in doubt we assume that the source of our
shipment is the majority.
In our situation, majority of sources clearly are yoshon
and a minority are distinctly chodosh so we have a question
whether we can say that a questionable shipment originated with a
yoshon supplier.
Reb Moshe ruled that since chodosh is considered dovor
sheyesh lo matirim (eventually it becomes permissible i.e.
subsequent to the following Pesach it is totally permissible),
therefore, one should not rely on the principle of kol deporish
merubo porish.
The Approach of the Bach
Another godol who was troubled by the fact that people ate
chodosh was the Bach. He discusses this issue at length in
his commentary on the Tur (Yoreh Deah 293).
The Bach prefaces his thesis with the observation that two of the
giants of the two generations preceding him, the Maharshal and Rav
Shachno (the rebbi and father-in-law of the Ramo), did not avoid
drinking beer that was chodosh. The Bach did not know what
these gedolim relied upon, but he felt that it was
impossible that men of such stature were unduly lenient.
He proposed that perhaps chodosh does not apply to grain
grown by goyim. This question is not discussed directly in
the gemora or in the Riff and the Rambam, who only talk
about whether it was grown in Eretz Yisroel or in chutz
la'aretz, but not about who grew it. Tosafos in
Kiddushin 37A explicitly brings proof from the
Yerushalmi that chodosh does apply to grain grown by
goyim.
The Bach then proceeds to conclude that this was actually the
intent of those who permitted (as mentioned previously)
chodosh in chutz la'aretz. They permitted it only
when the grain was grown on goyishe land.
The Bach's heter was totally new and, therefore, very
controversial from the outset. His son-in-law the Taz refused even
to discuss the Bach's thesis. He dismisses the heter with
the comment that we are not fit to argue with Tosafos and
offer opposing opinions as to what the Yerushalmi says.
One of the chief opponents of the Bach was the Shaagas
Aryeh (Volume 2, Responsa 3). The Shaagas Aryeh himself is
famous for being nizhar in chodosh. When he
traveled, he would take along his own supply of yoshon
grain. Volume two of the Shaagas Aryeh contains a lengthy
section on chodosh. Section 3 of this kuntrus is
devoted to refuting the Bach's thesis.
The Shaagas Aryeh (vol. 2, responsa 3) laments, "Even
without the Bach there were very few people in this kingdom who
kept chodosh. The Bach weakened the will of those who
carefully avoided the issur deOraisa of chodosh.
Therefore I will show that he [the Bach] did not properly
understand the Tosafos and all his words and proofs are
tohu vovohu [totally empty]."
End of Part I
