Insights into Halacha

For the week ending 7 January 2012 / 11 Tevet 5772

Chodosh in Chutz La'aretz - Part 2

by Rabbi Yehuda Spitz
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Last week’s article, Part I, discussed the source and explanations of the prohibition of eating products containing chodosh flour or grain. The vast majority of poskim through the ages, from the Mishna down, ruled that this prohibition is Biblical even in Chutz La’aretz. This article will attempt to explain why, even so, chodosh observance is not more widespread or even known about, as well as exploring several different approaches, rationales and leniencies offered by the authorities, allowing chodosh products to be eaten in Chutz La’aretz.

1. Compounded Doubt

The Tur and Rema[1] permitted the new grain because the new crop may have been planted early enough to be permitted, and, in addition, the possibility exists that the available grain is from a previous crop year, which is certainly permitted. This approach accepts that chodosh applies equally in chutz la’aretz as it does in Eretz Yisrael, but contends that when one is uncertain whether the grain available is chodosh or yoshon, one can rely that it is yoshon and consume it. Because of this double doubt, called a sefek sefeika, several major authorities permitted people to consume the available grain.

The issue: Rabbi Akiva Eiger[2] questions the validity of this approach, and maintains that there is no compounded doubt. He explains that the safekos of when the grain rooted are all really one safek, since planting before the cutoff date is considered the previous year! Therefore, since the halacha states that chodosh is Biblical, we hold safek deoraysa l’chumra, and a single case of doubt should not be sufficient to allow it to be eaten. Additionally, even if one would rely on this leniency, it must be noted that this hetter is dependent on available information, and if one knows that the grain being used is actually chodosh, one may not consume it.

2. The Taz’s Take - Rely on Minority

The Taz[3] offers an alternate rationale. He permitted the chutz la’aretz grain, relying on the minority opinion that chodosh is a mitzvah that applies only in Eretz Yisrael. This is based on a Gemara that states that when something has not been ruled definitively (and by chodosh the Gemara does not outright rule), one may rely on a minority opinion under extenuating circumstances[4]. The Taz wrote that in his time, due to lack of availability of yoshon flour, it was considered Shaas Hadchak (extenuating circumstances) as apparently ‘let them eat cake’ would not be a sufficient response to address the needs of the hungry masses with no bread to eat, and therefore maintained that one may rely on the minority opinion.

The issue: The Shach[5] emphatically rejects this approach, and concludes that one must be stringent when one knows that the grain is chodosh. The Ba’er Heitiv[6], as well as the Beis Hillel likewise voice their rejection of this hetter, in the strongest of terms – that there are “clear proofs” against this logic, and all poskim (Rif, Rambam, Rosh, Tur, Shulchan Aruch[7]) effectivelyruled against it – that chodosh in Chutz La’aretz is prohibited Biblically, period.

3. Near, Not Far

The Magen Avraham[8], forwards a different approach, that it is not so clear cutthat the halacha follows Rabbi Eliezer in the Mishna (that eating chodosh is a Biblical prohibition), and therefore, “in order to answer up for the minhag of the world, we must say that we follow Rabbeinu Baruch, who was of the opinion that the prohibition of chodosh in Chutz l’aretz is a gezeira d’rabbanan (Rabbinical enactment), and Chazal only prohibited chodosh products on countries nearby to Eretz Yisrael, and therefore would not apply to countries further away. He concludes saying that a “ba’al nefesh” should still be stringent as much as possible.

The Aruch Hashulchan[9] ruled this way as well, explaining that in Russia (where he lived) the land was frozen until past Pesach, there is no hetter of safek orsfeik sfeika (compounded doubt - see #1) to rely upon, for they knew that the farmers were unable to plant until after Pesach. Rather, he wrote that the issur of chodosh is interrelated to the Korban Omer, and therefore only applies to places from where the Korban could possibly be brought. Therefore, Chazal were not gozer on lands far away from Eretz Yisrael, for there would be no reason to do so, as those grains will never even reach Eretz Yisrael[10]. He adds that since if one would not partake of the chodosh grains, he would be unable to eat any grain product for at least six months of the year, Chazal would not have made a gezeira that thetzibbur would not be able to withstand, and especially about grain which is man’s main sustenance (“chayei nefesh mamash”).

The issue: Same as above, that the vast majority of halachic authorities through the ages effectively ruled against this, that HaChodosh assur Min HaTorah bchol makom, including Chutz La’aretz.

4. The Beer Necessities of Life (Yes, you read that right!)

Anotherhetter is that of the Lechem Mishna[11](cited by the Shach), and Pnei Yehoshua that drinks that are made of derivatives of chodosh grain, such as beer - which seems to have been the mainstay drink in those days - should be permitted, as they are not the actual grain itself. Several authorities[12] qualify this by saying that one may only be lenient in a case of whiskey or beer that was derived from a mixture (ta’aruvos) of different grains – including chodosh grains, but not if the drink was made exclusively from chodosh grain.

The issue: However, the Shach himself seems uneasy about using this leniency, as the Rosh implied that it should also be prohibited. The Chacham Tzvi[13], as well as the Chayei Adam and Aruch Hashulchan rule that one may not rely on this l’maaseh. The Vilna Gaon is reported as being so stringent on this that he called someone who buys beer made from chodosh grain for someone else – transgressing on Lifnei Iver[14].

There are those who took a middle of the road stance on beer, including the Mishkenos Yaakov[15], who although disagreeing with the Chacham Tzvi, nevertheless ruled that only for a tzorech gadol and shaas hadchak (extremely extenuating circumstances) may one rely on beer and other drinks derived from chodosh grain. Similarly, the Beis Hillel also disagrees with this hetter, but adds that if someone is weak and sickly, and it would be a danger for him not to drink it, he may rely on this hetter, as the Torah says “V’Chai Bahem”, v’lo Sheyamus bahem.

5.The Bach’s Hetter - Non-Jewish owned Grain

The Bach[16] advances a different halachic basis to permit use of the new grain. He opines that chodosh applies only to grain that grows in a field owned by a Jew, and not to grain grown in a field owned by a non-Jew. Since most fields are owned by gentiles, one can be lenient when one does not know the origin of the grain and assume that it was grown in a gentile’s field, and it is therefore exempt from chodosh laws. The Bach notes that many of the greatest luminaries of early Ashkenazic Jewry, including Rav Shachna and the Maharshal, were lenient regarding chodosh use in their native Europe. He shares that as a young man he advanced his theory that chodosh does not exist in a field owned by a gentile to the greatest scholars of that generation, including the Maharal M’Prague, all of whom accepted it. In fact, the Ba'al Shem Tov is quoted[17] as having a dream that when the Bach died, Gehhinom was cooled down for 40 days in his honor. When the Besh"t woke up he exclaimed that he did not realize the greatness of the Bach, and ruled that it is therefore worthwhile to rely on his opinion regarding chodosh[18].

The issue: Even though there are several poskim who rule like the Bach[19], nevertheless, the vast majority of authoritiescategorically reject this logic and rule that chodosh applies to grain grown in a gentile’s field, including the Rosh, Rambam, Rashba, Ran, Tosafos, Tur, and Shulchan Aruch[20]; as did many later poskim, including the Shach, Taz, Gr”a, Chid”a, the Pnei Yehoshua, the Sha’agas Ayreh, and the Aruch Hashulchan[21]. Additionally, although seemingly not widely known, is the fact that later on in his life, the Ba’al Shem Tov retracted his opinion and he himself became stringent after he found out that a certain Gadol of his time, Rabbeinu Yechiel of Horodna, ruled stringently on this matter[22]. It is also worthwhile to note that the Chazon Ish quoted the Chofetz Chaim[23] as saying that after someone passes on to the World of Truth, he will be asked why he ate chodosh. If he replies that he relied on the hetter of the Bach, then he will be asked why he spoke lashon hara, as the Bach did not allow that (implying that in Heaven he will be labeled a hypocrite).

Let Them Eat Bread

It should be further noted that even those who allowed consumption of chodosh based on the Bach’s hetter, the vast majority gave that ruling only since it was sha’as hadchak (extenuating circumstances) as otherwise there would be no grain products allowed to be eaten; but held that barring that, one should not rely on this leniency. This includes such renowned decisors as the Pri Megadim, Chayei Adam, Shulchan Aruch HaRav, Kitzur Shulchan Aruch, Mishna Berurah, and the Kaf HaChaim[24]. This is similar to the Magen Avraham and Aruch Hashulchan’s approach (see # 3 above) of finding a hetter, in order that Klal Yisrael will be “clean of sin” for their actions.

Five separate rationales for allowing leniency when eating chodosh grain in Chutz La’aretz, as well as the issues and difficulties involved with relying on each of them, have been offered. And none seem to have the complete answer to the question posed in last week’s article, “Why has the traditional approach seemed to be lenient when most authorities rule that chodosh is prohibited even outside Eretz Yisrael?” B’Ezras Hashem the final pieces of the puzzle will be presented in next week’s article.

[1]Y”D 293, 3. This approach was first introduced by the Rosh (Shu”t HaRosh Klal 2, 1; brought by the Tur) and Mordechai (Kiddushin 501). Tosafos (Kiddushin 36b s.v. kol) implies this way as well.

[2]R’ Akiva Eiger in his glosses to Y”D 293, 3, quoting the Shu”t Mutzal Ma’eish (50). This question is also asked by the Kreisi U’Pleisi and Chavaas Daas (brought in Shu”t Beis Avi vol. 4, 138, 7). Although the Aruch Hashulchan (Y”D 293, 16) attempts to address this difficulty (dochek terutz) and explain how our case might still be a safek sfeika, yet Rabbi Akiva Eiger’s kushyos are not to be taken lightly.

[3]Taz Y”D 293, 4.

[4]Gemara Niddah 9b.

[5]Y”D 293, Nekudos HaKessef 1.

[6]Ba’er Heitiv ad loc. 4, Beis Hillel ad loc. 1.

[7]Sources cited in last week’s article - Part I.

[8]Magen Avraham O.C. 489, 17.

[9]Aruch Hashulchan Y”D 293, 19. He actually disagreed with the Magen Avrahem’s proof (similar to the Machatzis HaShekel there – ad loc. end 2), but still paskened l’maaseh like him.

[10]It can be debated that the Aruch Hashulchan’s hetter would no longer apply nowadays, when chodosh products, such as Cheerios are easily purchasable in Israel. For more on this topic of chodosh grain from Chutz La’aretz used in Eretz Yisrael, see Shu”t Achiezer (vol. 2, 39), Shu”t Chelkas Yoav (Y”D 33), Shu”t Har Tzvi (Y”D 239 -240), Shu”t Tzitz Eliezer (vol. 20, 40, 1, in the name of Rav Shmuel Salant, originally printed in Kovetz Kenesses Chachmei Yisrael 126,1) and Orchos Rabbeinu (vol 4, 70, pg 30, quoting the Chazon Ish and the Steipler Gaon).

[11]Lechem Mishna (end of Terumos, cited by the Shach Y”D 293, 6), Pnei Yehoshua (end of Kiddushin, Kuntress Acharon 51, s.v. din hashlishi).

[12]Shulchan Aruch HaRav (Shu”t 20; O.C.489, end 30) and the Beis Lechem Yehuda (Y”D end 293). On the other hand, the Chochmas Adam (Binas Adam 54 [73]) maintains that even by a ta’aruvos, in order for this to apply, there would need to be present at least 60 times the yoshon grain against the amount of chodosh grain.

[13]Shu”t Chacham Tzvi 80, Chayei Adam (131, 12; see last footnote), Aruch Hashulchan (Y”D 293, 23), Gr”a (Maaseh Rav 89).

[14]Similarly, see Shu”t Rivevos Efraim (vol 8, 199) who quotes Rav Chaim Kanievsky as ruling that if one is stringent on chodosh it is prohibited for him to feed chodosh food to someone who is not machmir. The Minchas Yitzchak (Shu”t vol 8, 113) proves that the Chasam Sofer agreed with the Chacham Tzvi on this, that any derivative of chodosh still maintains the same status and is assur M’deoraysa. His own conclusion is that only one who relies on a hetter of chodosh in Chutz La’aretz being derabbanan may rely on the hetter of beer, as it is improbable to make such a distinction. Other contemporary poskim as well, including Rav Yaakov Kamenetsky (Emes L’Yaakov on Shulchan Aruch O.C. 489, footnote 461) and the Beis Avi (cited above, 19) hold that one should be stringent on beer.

[15]Shu”t Mishkenos Yaakov (Y”D end 68), Bais Hillel cited above.

[16]Bach Y”D 293, 1 s.v. uma”sh bein.

[17]Ba'al Shem Tov al HaTorah Parshas Emor, 6.

[18]See Shu”t Tzitz Eliezer (vol. 20, 40) who states that the Bach used to be the Rav of both Medzhibuzh and Belz, and posits that this is possibly why many Chassidim are lenient when it comes to eatingchodosh products. However, the Shu”t Beis Avi (cited above, 2) quotes that the Sar Shalom of Belz was very stringent with the issur of chodosh, so it seems unlikely that Belzer Chassidim would be meikel exclusively based on the Bach’s shitta. He also cites (ibid, 19) that the Darchei Teshuva quoted that the Divrei Chaim of Sanz was also lenient with chodosh.

[19]Including the Ba’er Hagolah (Y”D 293, 7), Knesses Yechezkel (Shu”t 41), Shev Yaakov (Shu”t 61), Chelkas Yoav (Shu”t Y”D 33, who says that the mekeilim actually rely on a tziruf of sevaros), and Makneh (Kiddushin 38- who qualifies his hetter that in Eretz Yisrael the prohibition would apply by grain owned by a non-Jew); and there are others who try to answer up for his shitta, through sevara, and not psak l’maaseh,including the Avnei Nezer (Shu”t Y”D 386 who wrote a teshuva on this topic when he was 16 (!) where, although not writing for psak l’maaseh, still brings sevaros to be maykel like Rabbenu Baruch; but he does note that the Rambam l’shitaso would not hold of them), and Rav Meshulam Igra (Shu”t vol. 1, O.C. 40 - while not paskening, similarly answers up for the sevara of Rabbenu Baruch to say chodosh in Chu”l could be derabbanan, but also disproves that it is dependant on the Korban Omer).

[20]Cited above.

[21]Shach (Y”D 293, 6), Taz (ibid. 2), Gr”a (ibid. 2 – who writes that the Ba’er Hagolah made such a mistake by paskening like the Bach, that it’s not worth even addressing the issue; see also Maaseh Rav 89 – 90 and Sheiltos 82 on how strict the Gr”a was with this halacha), Chid”a (Birkei Yosef ibid. 1), the Pnei Yehoshua (Shu”t Y”D 34 – also known as the Meginei Shlomo, was the grandfather of the Pnei Yehoshua on Shas who was more lenient regarding this prohibition; he writes extremely strongly against the Bach – calling his hetter “worthless”), the Sha’agas Ayreh (Shu”t HaChadashos, Dinei Chodosh Ch. 1 - 2, who was even makpid on all the dinim of Ta’am K’ikar for chodosh grain) and the Aruch Hashulchan (ibid. 12). See also Shu”t Shoel U’Meishiv (vol.6, 38), who wrote a pilpul (only sevarah and not psak) proving that chodosh should apply by grain owned by a non-Jew.

[22]Ba'al Shem Tov al HaTorah Parshas Emor, 7.

[23]Cited in Orchos Rabbeinu above.

[24]Chayei Adam (131, 12) says since it is difficult for everyone to keep, one may rely on the minority opinion, however anyone who is an “ohev nafsho” would distance himself from relying on this; Shulchan Aruch HaRav (O.C. 489, 30) who calls it a “melamed zchus” and that every ba’al nefesh should be as machmir as possible – since that is the proper halacha; Kitzur Shulchan Aruch (172, 3); the Pri Megadim (O.C. 489, E.A. end 17) – “B’avonoseinu harabbim hadoros chalushim, v’ee efsher lizaher kol kach bzeh”; the Mishna Berurah (O.C. 489, 45, Biur Halacha s.v. v’af) although writing that one may not object against someone who is lenient, however uses very strong words against it and also calls the hetter a “melamed zchus”, since it’s a “davar kasha” to be vigilant from eating chodosh, and maintains that everyone should try to keep it as much as they possibly can. [It is said that Rav Moshe Feinstein - in line with the reasoning of Mishna Berura, was very scrupulous about this and made sure to have at least yoshon oats and barley - since it was much easier to observe yoshon with them than with wheat. See also Shu”t Igros Moshe (Y”D 4, end 46) where although he maintains there is what to rely upon l’maaseh, still one should try to ascertain where he can purchase yoshon flour, as it is preferable.] The Mishna Berura furthermore comments that with the advent of the train (mesilas habarzel), the grain might be coming from faraway lands such as Russia, where it’s vaday chodosh (like the Aruch Hashulchan observed); and the Kaf HaChaim (end O.C. 489 - who tries to find hetterim for why the “oilum is maykel”. Even the Ohr Zarua himself (vol. 1, 328, whom the Maharil and Terumas Hadeshen (191) base their similar lenient psak on), one of the early proponents of ruling that chodosh in Chutz La’aretz is only a Rabbinic enactment qualifies his psak, that his lenient ruling only applies in a case of safek when the grain was planted (and therefore safek drabbanan l’kula), and only since it’s shaas hadchak, for it is impossible not to buy grain and bread, therefore kdai l’smoch bshaas hadchak.

For any questions, comments or for the full Mareh Mekomos / sources, please email the author:

Disclaimer: These are just a few basic guidelines and overview of the Halacha discussed in this article. This is by no means a complete comprehensive authoritative guide, but rather a brief summary to raise awareness of the issue. One should not compare similar cases in order to rules in any real case, but should refer his questions to a competent Halachic authority.

Disclaimer: This is not a comprehensive guide, rather a brief summary to raise awareness of the issues. In any real case one should ask a competent Halachic authority.

L'iluy Nishmas the Rosh HaYeshiva - Rav Chonoh Menachem Mendel ben R' Yechezkel Shraga, Rav Yaakov Yeshaya ben R' Boruch Yehuda.

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