9. YASHAN AND CHADASH: OLD IS

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1 9. YASHAN AND CHADASH: OLD IS BETTER THAN NEW While it is common for attention to be placed on stringencies in the world of Kashrut, there are unfortunately areas of actual Halachah which are entirely ignored. An example of this is the Torah prohibition against eating flour which is Chadash, something that most Kosher consumers are unaware of entirely, while others mistakenly thinking it is a custom or stringency. I recall announcing to my community that a certain grocery store has finally imported Yashan flour, praising their efforts. The owner of the grocery immediately approached me and asked me why I would advertise that his flour is not fresh, when in truth he just received the shipment! Alas, this ignorance is the portion of the Yashan observer in most places in the world. Upon his first visit to the United States of America, Rabbi Mordechai Eliyahu, the Rishon LeTzion and Chief Sepharadi Rabbi of Israel, noticed that the Jews there did not observe the laws of Yashan. All the bread that was served was Chadash and the Rabbi refused to eat bread in the United States. In the United States the problem of Chadash is much more prevalent due to the harvesting date being in Tishrei, a problem which almost does not exist in Israel. 183

2 Rabbi Mordechai Eliyahu said: When I was in America, they served me a variety of foods and I began explaining to them the prohibition of eating Chadash, but no one understood what I was speaking about. When I stood up to speak, I began to teach them about the prohibition of Chadash after which they finally understood me. They then said: This rabbi is old (he eats old Yashan flour) but speaks of new things! Today, Baruch Hashem, many in America have begun to be careful regarding this prohibition, and on many products it says Made from Yashan flour. Though, so long as the communities were not careful to refrain from Chadash, Rabbi Mordechai Eliyahu would only eat dry crackers that his wife, the Rabbanit, would bring for him from Israel. 1 Rabbi David Yosef, son of Rabbi Ovadia Yosef, related a story in which his father learned that a ship loaded with Chadash wheat was headed for Israel and the news of the ship s imminent arrival had Rabbi Ovadia Yosef very concerned. Rabbi Ovadia Yosef placed a call to Ariel Sharon, then Minister of Industry and Trade, and explained to him the significance of importing Chadash wheat to Israel and the problems that would arise as result. 1 This story is translated from the Hebrew source, Avihem Shel Yisrael (page 99). 184

3 Ariel Sharon telephoned back shortly, to say that he had done what he could and that the ship with the Chadash wheat was heading to another country in the region. Instead, ships carrying only Yashan wheat would be heading to Israel. 2 The Source The Torah, speaking about the bringing of the Omer offering, commands us 3 : You shall not eat bread or [flour made from] parched grain or fresh grain, until this very day, until you bring your God's sacrifice. [This is] an eternal statute throughout your generations in all your dwelling places. This means that in order to eat any of the five grains 4, we must allow for the Omer to be offered before they become יהיאור/ YEHI OR 2 Story adapted from a Yeshiva World News article, quoting an interview with Rabbi David Yosef by BaKehilla magazine given while former Prime Minister of Israel Ariel Sharon was being laid to rest. 3 Vayikra 23:14. 4 The five grains are commonly known to be wheat, barley, rye, spelt and oats. It is not so clear that oats are actually one of the five grains, and therefore we are stringent in two regards we do not eat them on Pesach, though we also do not fulfill the Mitzvah of eating Matzah with what are called Oat Matzot. 185

4 permissible for consumption. For example, if a farmer were to plant grain in the summer of the year 5773, it would not be permitted for consumption until the 16 th of Nissan The Mishna lays down a rule 5 : The Talmud 6 : Every precept which is dependent on the Land is practiced only in the Land; and that which is not dependent on the Land is practiced both within and without the Land, except Orlah and Kilayim. Rabbi Eliezer says: Chadash too. The sages propounded: Does Rabbi Eliezer disagree in the direction of leniency or [greater] stringency? In the direction of stringency one might argue that it is a duty connected with the soil, but Chadash is practiced only in the Land, but not without Rabbi Eliezer comes to say that Chadash too applies both within and without the Land. What is the reason? Dwelling implies wherever you may be living 7. 5 Kiddushin 33b. 6 Ibid 34a. 7 The Tannaim are in disagreement as to whether the prohibition of Chadash applies only in the Land of Israel or also outside of the 186

5 We find a similar statement from Rabbi Eliezer 8 in Masechet Orlah 9 : Chadash is prohibited from the Torah, in every place. Rabbenu Ovadia of Bartenura explains that this applies: Even outside of the land of Israel, like it says: You shall not eat bread or [flour made from] parched grain or fresh grain in all your dwelling places. Most of the Rishonim 10 are of the opinion that Rabbi Eliezer s statement is correct, and that "Chadash is prohibited from the Torah, in every place. Land. Rabbi Eliezar's opinion is that Chadash is prohibited everywhere, both in the Land of Israel and outside, as is written in the Mishna (Kiddushin 37a). The Tanna Kama in the Mishna disagrees. His opinion is that Chadash only applies in the Land of Israel, which leaves him with the burden of interpreting in all your dwelling places. He therefore interprets this verse as saying that the prohibition applies to grain that was grown in the Land of Israel even if the grain is exported outside of the Land of Israel (see Yerushalmi Kiddushin 1:8). 8 Though the Mishna does not directly quote him, the general rule is that Halacha K Rabbi Eliezer, the law is always like Rabbi Eliezer, and that Stam Mishna Kemoto, an unauthored Mishna is always authored by Rabbi Eliezer. 9 3:9. 187

6 The Ruling of the Tur Rabbi Asher Ben Yechiel writes in the Tur (Yoreh Deah 293): It is written [in the Torah]: You shall not eat bread or [flour made from] parched grain or fresh grain, until this very day, meaning that it is forbidden to eat from the five grains until the Omer is offered, which is on the 16 th of Nissan. This prohibition applies when there is a Bet HaMikdah and when there is not a Bet HaMikdash; when in the Land [of Israel] and when outside of the Land; when it is owned by a Jew and when it is not owned by a Jew. The only difference [between when there is a Bet HaMikdash and when there is not] is that when the Omer is offered, these grains are immediately permitted on the 16 th of Nissan from the moment those who are near [Jerusalem] know that is has been offered. For those who are far [from Jerusalem] they [these grains] are permitted from midday and on. [On the other hand] when the Omer is not offered, [these grains] are prohibited יהיאור/ YEHI OR 10 See the Rambam in Mishneh Toreah (Hilchot Maachalot Assurot 10:2), the Rif in Kiddushin (15a), the Rosh in Kiddushin (1:62), as well as the Tur (Orach Chaim 489, and Yoreh Deah 293). As we will see, Maran in Shulchan Aruch (Orach Chaim 489:10 and Yoreh Deah 293:2) is also of this opinion. 188

7 for the entire day of the 16 th. Today, when we observe two days [of Pesach], these grains are prohibited the entire day of the 17 th until the evening of the 18 th, since there is a doubt whether it is [truly] the 16 th day. [The offering of] the Omer only permits grains which have taken root before the Omer; but grains which have not taken root before the Omer are not permitted by it. The Ruling of Maran Maran expresses his opinion in the Shulchan Aruch 11 : It is forbidden to eat Chadash from the five grains until the Omer is offered, which is on the 16 th of Nissan, as it says [in the Torah]: You shall not eat bread or [flour made from] parched grain or fresh grain, until this very day. Nowadays, since we do not offer the Omer, it is forbidden [to eat from these grains] the entire day of the 16 th. Outside of the Land of Israel, where they observe two days [of Pesach], [these grains] are forbidden the entire 17 th day until the evening of the 18 th. 11 Yoreh Deah 293:

8 The prohibition of Chadash applies both in the Land of Israel and outside, both to a Jew s [grains] and to a non-jew s [grains]. Grains which have not taken root [in the earth] before the 16 th of Nissan are forbidden until the next [year s] Omer. Opinions That Arose In Places Of Difficulty We have seen above that the Torah itself is very clear in regard to prohibiting Chadash outside of Israel, as it says in all your dwelling places. In many places it was very difficult to refrain from eating Chadash, and we find that several opinions arose, trying to justify leniency or ease the severity of the prohibition outside of Israel, moving it from a Torah level to a Rabbinic level. The reason for lowering the prohibition of Chadash to a Rabbinic level, is understood when one is aware of the laws surrounding Torah and Rabbinic prohibitions. If one is in doubt in regards to a Torah prohibition, for exampleif one is unsure if a certain piece of meat is from a forbidden animal or a Kosher one, Halachah would require one to be 190

9 strict and not eat from the meat. On the other hand, if the doubt was in regards to a Rabbinic prohibition, such as if a certain loaf of bread was baked by a Jew or not 12, Halachah would allow one to be lenient and eat from the bread. Therefore, if Chadash is a Torah prohibition, even if one is unsure if the grains were Chadash or not, one would have an obligation to refrain from eating them, which would not be the case if it were merely a Rabbinic prohibition. Leniency of the Or Zarua Living in thirteenth century France, the Or Zarua states that the difficulty in refraining from Chadash in his locale created a situation of pressing need. He therefore attempts to prove that Chadash is not prohibited outside of Israel on a Torah level, but rather only on a Rabbinic level. The Or Zarua quotes a Mishna 13 which rules that the Omer offering can only be brought from barley which was grown in the land of Israel. The Gemarah 14 seems to imply that one can learn from this that Chadash is only prohibited 12 The prohibition against eating bread baked by a non-jew is Rabbinic. See Avodah Zarah (5b, 36a, 37a) and Shabbat (17b), as well as Rambam in his Mishneh Torah (Maachalot Assurot (17:9,12,13) and Maran in his Shulchan Aruch (Yoreh Deah 112). 13 Menachot 83b. 14 Menachot 84a. 191

10 outside of the land of Israel on a Rabbinic level, since one may not use grains grown outside of the land for the Omer offering. Leniency of the Tosafot There is a famous Talmudic principle which states that Kol DeParish Meruba Parish, whatever emerges emerges from the majority. This means that if one knows that the majority of meat found in a city is Kosher, it can be assumed that an unlabeled piece of meat in the same city is Kosher. Tosafot 15 doesn t seem to agree with the Or Zarua s logic and therefore presents us with a different leniency using this Talmudic principle to allow eating grains where one is unsure as to their Chadash status. Assuming that most grain has taken root in the earth before the 16 th of Nissan, one may assume that all grain that is available has emerged from the majority. This would obviously only apply if Tosafot s assumption is correct that most grain has taken root before the 16 th of Nissan. 15 Kiddushin 36b. 192

11 Leniency of the Taz Much like the Or Zarua, the Taz living in seventeenth century Poland states how difficult it was to observe Chadash there. In an attempt to justify the lenient practice of the Jews in his community, the Taz 16 shows that the Talmud did not conclude that Rabbi Eliezer s above opinion is Halachah. This would allow those in a time of pressing need to rely on the other opinion that Chadash does not apply outside of the land of Israel. Reaction to the Taz The Shach 17, a contemporary of the Taz, disagrees with his opinion and argues that the Halachah follows Rabbi Eliezer. The Vilna Gaon 18 agrees with the Shach s critique of the Taz. Leniency of Rabbenu Baruch Rabbenu Baruch is of the opinion that outside of Israel, Chadash is only prohibited on a Rabbinic level. Additionally, he states that this Rabbinic prohibition only applies in countries which are geographically close to the יהיאור/ YEHI OR 16 Yoreh Deah 293:4. 17 Nekudot HaKesef (Yoreh Deah 293:4). 18 Biur HaGra (Yoreh Deah 293:2). 193

12 land of Israel, but not countries which are farther away. Attempting to prove his opinion, Rabbenu Baruch shows that regarding the taking of Terumot and Maaserot, tithes, our Rabbis only imposed the obligation in those countries close to Israel 19. Reaction to Rabbenu Baruch Some of the Ashkenazi Poskim 20 are of the opinion that this is the most convincing argument to allow leniency in regards to Chadash. The Magen Avraham concludes that even though it is permissible to follow this leniency, a Baal Nefesh, one who is careful with his soul, should refrain from relying on it. Furthermore, the Vilna Gaon 21 completely rejects this leniency. Leniency of the Rama Another Talmudic principle utilized in the myriad of leniencies applied to Chadash, is the case of a Sfek Sfeka or double doubt. We learned above that when one is in doubt regarding a Torah law, one must be strict, though this is only true when there is one doubt. In the case where יהיאור/ YEHI OR 19 See Rambam (Laws of Terumot 1:1). 20 See Magen Avraham (Orach Chaim 489:17) and the Aruch HaShulchan (Yoreh Deah 293:20-21). 21 Biur HaGra (Yoreh Deah 293:2). 194

13 two doubts may be combined, a Sfek Sfeka situation is created, permitting one to be lenient. 22 After all the above opinions have been presented, it is very important to add the opinion of the Rama here, who utilizes such a double-doubt approach. The Rama 23 says that one may be lenient in regards to Chadash as long as two doubts exist. The first doubt is whether or not the grains were planted before the 16 th of Nissan, while the second doubt is that perhaps the grain is not from this year, but rather a previous one. Reaction to the Rama It is very difficult to understand this logic of the Rama. Rabbi Akiva Eiger 24 notes that this is not a genuine double doubt, since it is really the same doubt is this grain Chadash or not. Therefore, it would lack integrity to Halachically rely on this opinion. 22 In his review of my Sefer, my father shlit a asked rhetorically why this concept of Sfek Sfeka is not used more often by much lighter prohibitions, such as Kitniyot. 23 Yoreh Deah 293:3. 24 Gilayon Rabbi Akiva Eiger, here. 195

14 יהישלום / SHALOM YEHI The Leniency of the Bach Rabbi Yoel Sirkis adamantly disagrees with the consensus of the Shulchan Aruch and other Poskim who prohibit Chadash everywhere and says that even though Chadash is prohibited outside of Israel, it is not prohibited if it comes from a non-jew s grains. After proving his opinion Halachically, he adds that all the great rabbis of his generation were lenient in this regard, and no one should openly prohibit Chadash. Additionally, he states that if one wishes to refrain from Chadash it must be done privately and only by someone who is known to be extremely holy and pious. Reaction to the Bach A glance at the above opinions discussing the matter will reveal that the Bach is almost alone in his opinion 25, though not entirely 26. The Aruch Hashulchan 27 notes that there are 25 See Maran in the Bet Yosef who forewarned that some might arrive at such a conclusion and proved that the Halachah is not in accordance with them. 26 See Mishkenot Yaakov (64) who defends the Bach at length. 27 Yoreh Deah 293:5 196

15 יהישלום / SHALOM YEHI a minority of Rishonim 28 who are of the opinion that Chadash is only forbidden on a Rabbinic level outside of Israel. The Shach 29, the Taz 30, and the Vilna Gaon 31 reject this approach entirely. Tosafot 32 indeed does state that Chadash applies to grain grown in a field that is owned by non-jews according to the Talmud Yerushalmi. This is also the opinion of Maran in the Shulchan Aruch 33. Other Lenient Opinions The Pitchei Teshuva 34 cites numerous Acharonim who justify the leniency apparently harnessed by the majority of Ashkenaz Jewry. 28 See the Or Zarua (328), Rabbeinu Baruch (quoted in Teshuvot Harosh 2:1, author of the Sefer HaTerumah), the Raavan (according to the Mishkenot Yaakov 64), and the Maharil. 29 Yoreh Deah (293:6). 30 Yoreh Deah (293:2). 31 Biur HaGra, Yoreh Deah (293:2). 32 Kiddushin 36b. 33 Yoreh Deah (293:2). 34 Yoreh Deah (293:1). 197

16 The Aruch Hashulchan 35, living in 19 th century Russia, describes the great difficulty of refraining from Chadash which existed there. Stating that only a small group of individuals were able to abide by this prohibition, he defends the majority practice to be lenient. There are many Ashkenazi Chassidim who are lenient in this regard, due to a legend that the Baal Shem Tov heard a heavenly voice agreeing with the Bach, though the Baal Shem Tov retracted his lenient approach in later years 36. The Mishna Berurah 37 records that most people are lenient in this regard, but someone who is careful with his soul should try to be as observant as possible regarding the prohibition of Chadash. Similarly, in his sub-commentary the Biur Halachah 38, he bemoans the fact that so many people decide to completely disregard the prohibition of Chadash, mentioning that even if one cannot fully observe 35 Yoreh (293:18). 36 In Chanukah of the year 5774, I merited to travel to Israel with my wife. I was praying Kabbalat Shabbat in Yeshivat Orayta in the Old City of Jerusalem and came across a book which contained hundreds of Baal Shem Tov stories, all well sourced in the writings of the Baal Shem Tov s students. The book is not in my possession, but both the story of the Baal Shem Tov s leniency and his later retraction of this leniency are well documented there. 37 Orach Chaim (489:45). 38 Orach Chaim (489:10). 198

17 this prohibition, at the very least one should strive to whenever and wherever possible. Rabbi Yosef Dov Soloveitchik once related 39 that he follows the lenient approach to Chadash 40. Rabbi Moshe Feinstein s Yeshiva followed the lenient approach and it is known that he ate the Yeshiva s food 41. Conclusion According to Sepharadim, there is no room to be lenient regarding Chadash, and one must be very careful to observe this important Mitzvah. Ashkenazim have room to be lenient according to some opinions, though they should not rely on them for Halachic purposes. 39 In a shiur given at Yeshiva University and heard by Rabbi Howard Jachter, the author of a scholarly article on this topic Chadash Observance Today which was of immense help in the writing of this chapter. 40 Interestingly, both Rabbi Aharon Soleveitchik and Rabbi Aharon Lichtenstein do not follow this lenient opinion. 41 Related by Rabbi Moshe Snow to Rabbi Jachter, quoted in the article above. 199

18 Food For Thought It is inconceivable that the world of Kosher organizations and individual consumers are strict over a myriad of a Rabbinic laws, but refuse to even attempt adherence to this Halachah clearly mentioned in the Torah and Shulchan Aruch. This has reached the point where the masses have never even heard of this Halachah. Additionally, those who have heard and attempt to observe this Halachah are often met with ridicule and contempt even from the strictest of rabbis and community leaders. I vividly recall Rabbi Yaakov Peretz once giving a shiur about the lack of priorities in Kashrut observance 42 : When I was in Chutz LaAretz, I did not even eat bread! If you are there [in Chutz LaAretz] for Pesach, your Matzot may even be Chadash, and you should therefore only eat vegetables at the Seder, skipping the Mitzvah of Matzah. I ask you to please explain this to me. Placing cheese on a hot piece of meat and then eating it is only a Rabbinic prohibition but eating a Chadash cookie with a Hechsher on it is worse since it is a Torah prohibition! 4242 Quoted by memory. 200

19 They are mistaken in permitting a Torah prohibition, know that! Even if those who are lenient are correct, wouldn t you my dear reader rather err on the side of caution? Additional Reading I strongly recommend those who wish to be scrupulous in this regard to buy a hard copy, or acquire the free digital copy, of Rabbi Yoseph Herman s A Guide to Chodosh. 201