Menachos, Chapter Ten, Mishnah 5. We now turn to a topic connected to the bringing of the Omer: the prohibition of chadash - the ban on eating from the new year's grain crop. This applies to the five species of grain (wheat, barley, oats, spelt and rye) that took root since the previous Pesach. Before this grain may be eaten, the Omer offering must be brought, which is offered on the second day of Pesach. When it cannot be brought, as in our times when there is no Beis HaMikdash, the new grain remains forbidden until after the sixteenth of Nisan.
The source of the prohibition and its timing:
The verse states: "Ve'lechem ve'kali ve'charmel lo sochelu ad etzem hayom hazeh ad havi'achem es korban Elokeichem" - "And bread and parched grain and fresh ears you shall not eat until this very day, until you bring the offering of your God." The verse thus sets out two separate time markers:
"Ad etzem hayom hazeh" - until the sixteenth of Nisan.
"Ad havi'achem es korban Elokeichem" - until the bringing of the Omer offering.
Whichever comes first is decisive: if the Omer can be brought, the new grain becomes permitted the moment it is offered; and if it cannot be brought, once the sixteenth of Nisan has ended and the seventeenth begins, the grain of the new crop is permitted.
The prohibition of "reishis ketzirchem":
A separate verse refers to the Omer offering as "reishis ketzirchem" - "the first of your harvest," and from here comes an additional restriction, this time on the act of harvesting itself: one may not harvest new grain before the grain designated for the Omer offering has been harvested, that is, the barley, which is generally the first grain to ripen.
The force of the prohibition and its scope:
The prohibition of chadash is universal: it applies in Eretz Yisrael at all times, and according to most Rishonim it applies outside Eretz Yisrael at all times as well, including in our own day (we will expand on this at the conclusion). The prohibition of "reishis ketzirchem," by contrast, applies more narrowly, since it relates to barley that is fit to be used for the Omer offering. Therefore, barley that grew in a place from which the Omer may not be brought, such as an irrigated valley, may be harvested even before the barley for the Omer offering is harvested. There is thus a certain flexibility in this prohibition.
This topic comes up in our Mishnah because the chapter deals with the bringing of the Omer, and the result of that bringing is that the new grain becomes permitted for eating.
The words of the Mishnah:
"Mishekarav ha'omer, yotz'in u'motz'in shuk Yerushalayim shehu malei kemach v'kali" - immediately after the Omer offering was brought in the time of the Beis HaMikdash, people would go out and find the market of Jerusalem full of grain products. "Kemach" - flour, presumably barley flour. "Kali" - according to Rashi, flour made from kernels that were first roasted and toasted and then ground. Others explain that kali is the roasted grain itself, something like puffed wheat (known in Israel as "shalvah").
The point is that these grain products were certainly harvested before Pesach, prior to the cutting of the barley for the omer offering, and therefore they were already sitting on the shelves and available for purchase the moment the omer was brought.
The dispute between Rabbi Meir and Rabbi Yehudah:
Rabbi Meir - "shelo b'ratzon chachamim": stocking up the shelves of the Jerusalem market so that people could eat the new grain the instant it became permitted with the bringing of the omer was a violation of a rabbinic prohibition - literally, it was not in accordance with the will of the Sages.
Rabbi Yehudah - "b'ratzon chachamim hayu osin": there is no rabbinic prohibition here at all, and filling the shelves in the Jerusalem market was done with the full approval of the Sages, since he rejects outright the notion that the Sages ever issued such a decree.
According to Rabbi Meir, we are certainly not dealing with grain that was harvested illegally before Pesach, because in that case it would not be a question of the will of the Sages at all but an explicit Torah prohibition. Rather, we are dealing with grain that was harvested legitimately - for example from a valley that is unfit for the omer, or grain cut by hand and with a hand tool, under those allowances that permit harvesting early. Even so, there is a rabbinic prohibition here, because the Sages saw that when grain is harvested early and ready to be eaten, people will inevitably eat from it before it becomes permitted, that is, before the omer is offered. The Sages therefore said: do not stock the shelves, and do not even harvest the grain until after the omer has been offered.
And if you ask on Rabbi Yehudah: if there was ever a place for such a decree, surely this is it, for once the grain is sitting on the shelves people will certainly eat from it? The answer is that Rabbi Yehudah agrees with the reasoning in itself, but he understands that the public would not have been able to withstand such a decree. And the rule is that we do not issue a decree that the public cannot withstand, and therefore he holds that this decree was never issued in the first place. The halachah follows Rabbi Yehudah, that there is no rabbinic prohibition here.
"Mishekarav ha'omer, hutar hechadash miyad":
From the moment the omer was offered, the new crop became permitted immediately. We should examine what the word "immediately" adds, since it would have been enough to say "once the omer was offered, the new crop became permitted." One suggestion is that a lamb was brought together with the omer offering, and one might have thought that the accompanying animal offering also had to be brought first. To this the Mishnah tells us: no, it is the barley meal offering of the omer that is decisive, and once it has been offered, the new crop is permitted immediately.
"V'harechokim mutarin mechatzos hayom ul'halan":
Someone who lives too far away to know with certainty exactly when the omer offering was brought - such as a person living in Beis Shemesh or in New York - how is he to know the precise moment it was brought? To this the Mishnah says that from midday in Jerusalem he is permitted to eat the new crop wherever he may be.
The reason is spelled out at the end of the Mishnah: "Mipnei mah hitiru mechatzos hayom ulma'alah? Mipnei shehen yod'in she'ein beis din misatzlin bo" - everyone knows that the court, which is responsible for what takes place in the Beis HaMikdash, is not lazy and does not slacken in its enforcement, and makes sure that the omer offering is brought as quickly as possible. Consequently, by midday it has certainly been brought.
The enactment of Rabban Yochanan ben Zakkai:
Everything said until now concerns the times of the Beis HaMikdash, when the omer could be brought, whereas nowadays there is no offering. To this the Mishnah says: "Mishecharav Beis HaMikdash, hitkin Rabban Yochanan ben Zakkai sheyehei yom hanef kulo asur". "Yom hanef" is the day of the waving, so called because the omer offering requires waving in six directions before it is brought forward and offered. Once the Beis HaMikdash was destroyed and the bringing of the omer ceased, Rabban Yochanan ben Zakkai established that the entire day remains forbidden for eating the new crop.
Rabbi Yehudah raises an objection: "velo min haTorah asur?" - but isn't it forbidden by Torah law? The Torah itself forbade eating chadash for the entire day of the waving, the whole second day of Pesach, when no Omer is brought, as it says "until this very day," and "until" is expounded as "until and including," meaning the entire day is forbidden. If so, how could Rabban Yochanan ben Zakkai have instituted an enactment about something the Torah had already legislated?
And indeed, the Gemara accepts the objection. The word "hitkin," from the root of takanah, is a technical term meaning a rabbinic enactment that comes to repair a breach or a deficiency, and that is not the case here. The Gemara's conclusion is that Rabban Yochanan ben Zakkai saw that the public was not accustomed to this: for over four hundred years, everywhere in Eretz Yisrael, at midday on the second day of Pesach people would begin eating from the new grain and baking matzah from it. He therefore needed to publicize and establish that this is no longer the practice, but rather one waits until the third day of Pesach. It emerges that "hitkin" here does not mean a new enactment in the technical sense, but rather the establishing of this new practice, which is not rabbinic but a Torah obligation.
Two clarifications, so as not to misunderstand:
There is no dispute here between Rabbi Yehudah and Rabban Yochanan ben Zakkai: Rabban Yochanan ben Zakkai was a sort of temporary Nasi who took the leadership after the destruction of the Second Temple, around the year seventy of the Common Era, and it was he who set things in order in Yavneh. Once things had stabilized and Rabban Gamliel the Second was brought there, he stepped off the stage. It emerges that he was a Tanna of the first century, while Rabbi Yehudah was of the second century, toward the end of the era of the Tannaim, and they were not contemporaries. There is therefore no argument between them; Rabbi Yehudah disagrees with whoever formulated the Mishnah in this version, and holds that there was no enactment here at all. And that is indeed the halachah in practice.
One must picture the situation as it actually was: we are speaking of a reality in which the markets of Jerusalem fill up in the middle of Pesach with fresh flour from the new harvest, and people come to buy it, bake matzos from it and eat them on Pesach. This is not at all how we conduct ourselves today, for nowadays people do not take the risk of baking matzah in the middle of Pesach lest it come to chametz. But this is the picture one must hold before one's eyes when learning this Mishnah.
The halachah in practice:
The prohibition of chadash is a Torah prohibition, applying at all times and in all places. According to most of the Rishonim, all grain in Eretz Yisrael is subject to the prohibition of chadash, and therefore any hashgachah in Eretz Yisrael worthy of the name does not certify products that are chadash before their time. Most of the Rishonim also held that chadash applies outside of Eretz Yisrael as well.
The Acharonim, from the Rema onward, make great efforts to find a defense and to explain why Klal Yisrael, and certainly Ashkenazic Jewry, are so lenient with the prohibition of chadash, which is a Torah prohibition. There is an opinion that outside of Eretz Yisrael it is only rabbinic, and on top of that an opinion that a doubt in a rabbinic matter is treated leniently, and perhaps that is the explanation. In any case, it seems clear that the motivating factor was necessity, since food was hard to come by in those days.
Today the pendulum has swung somewhat in the opposite direction, and more and more kashrus agencies are stringent regarding chadash outside of Eretz Yisrael. Although to the best of my knowledge the OU still certifies products that may be chadash outside of Eretz Yisrael, there are now websites that let you check by serial number when products were manufactured. Either way, it is proper for a person not to eat from the new grain when he knows for certain that it is chadash, and not to drink beer that is chadash outside of Eretz Yisrael. Where it is definitely chadash, he should not eat it. Where it is a doubtful case of chadash outside of Eretz Yisrael, there is greater room to be lenient.