The Laws of Yoshon

Question #1:

“When I was young, I do not think I ever heard about a prohibition called chodosh, or that something was yoshon. Now I am constantly hearing these terms. Do we now have a new mitzvah?”

Question #2:

“We have decided to stay permanently in Eretz Yisrael, but we visit the United States a few times a year. Do we need to be concerned about chodosh when we visit?”

The Basics

Before addressing the issue underlying both questions, which is whether the prohibition of chodosh applies outside Eretz Yisrael, we must first study some essential details of the mitzvah. The Torah teaches in our parsha:

“Bread, sweet flour made from toasted kernels, or the toasted kernels themselves, may not be eaten until that very day – until you bring the offering to your G-d. This is a law that you must always observe, throughout your generations, in all your dwelling places” (Vayikra 23:14). “That very day” refers to the second day of Pesach, the day that the korban omer, the “offering” mentioned in the pasuk, is brought. (This is the same day that we begin counting the omer.)

The Mishnah (Menachos 70a) explains that this mitzvah applies only to the five species that we usually categorize as grain, which Rashi (Pesachim 35a) defines as wheat, barley, spelt, oats and rye. The Gemara (Menachos 70b) demonstrates that the laws of chodosh apply to the same varieties of grain that can become chometz.

What permits the new grain?

We should note that the Torah mentions two different factors that permit the new grain – it “may not be eaten until that very day – until you bring the offering to your G-d.” This seems to be a bit contradictory. What permits the new grain, the day itself or the offering that is brought that day?

The New Korban

The Gemara (Menachos 68a) concludes that it depends on whether a korban omer will be offered that particular year. Until the Beis Hamikdash was destroyed, a korban omer was brought annually, and offering this korban permitted the new grain, thereby fulfilling “may not be eaten… until you bring the offering to your G-d.” After the Beis Hamikdash was destroyed, it is the day that permits the new grain.

There is a further question: when it is the day that permits the new grain, is it the beginning of the day or its end?

The Gemara quotes a dispute about this fact, but concludes that even those who permit the new grain at the beginning of the day do so only min hatorah; but, they agree that miderabbanan, the new grain is not permitted until the day ends (Sukkah 41b).

“New” Grain versus “Old” Grain

This new grain is called chodosh, literally, new. Once Pesach passes, the grain is called yoshon, old, even though it may have been planted only a few days before. The promotion from chodosh to yoshon transpires automatically on the second day of Pesach – all the existing chodosh becomes yoshon grain on that day, even that which is still growing. The only requirement is that, by then, the grain must have already taken root. Thus, designating the grain as “old” does not mean that it is either wizened or rancid. Grain planted in the late winter or early spring often becomes permitted well before it has even completed growing. On the other hand, grain that took root after the second day of Pesach is categorized as “new” grain that may not be eaten until the second day of Pesach the following year.

How do we know that it is newly rooted?

Since most of us spend little time subterraneanly, how are we to know when the newly planted seeds decided to take root? This question is already debated by the tanna’im. The halachic authorities dispute whether we assume that the seeds take root three days after planting or not until fourteen days after planting. If we assume that they take root in only three days, then grain planted on the thirteenth of Nisan is permitted after the sixteenth, whereas that planted on the fourteenth, Erev Pesach, is forbidden. This is because the remaining part of the thirteenth day counts as the first day, and the fifteenth day of Nisan (the first day of Pesach) is the third day, and we therefore assume that the new grain rooted early enough to become permitted (Terumas Hadeshen #151; Pischei Teshuvah, Yoreh Deah 293:4, 5; Aruch Hashulchan).

According to those who conclude that it takes fourteen days to take root, this grain does not become permitted until the 16th day of Nisan of the next year. In addition, any grain planted on the third of Nisan or afterwards will not be permitted until the coming year, whereas that planted on the second of Nisan becomes permitted this year. We count the second of Nisan as the first day, which makes the fifteenth of Nisan the fourteenth day, and the grain has taken root early enough so that it is permitted after the sixteenth (Nekudos Hakesef; Dagul Meirevavah; Shu’t Noda Biyehudah 2:Orach Chayim:84).

What’s New in Chutz La’aretz?

Now that we understand some basic information about chodosh, we can discuss whether this mitzvah applies to grain growing outside Eretz Yisrael. Following the general rule that agricultural mitzvahs, mitzvos ha’teluyos ba’aretz, apply only in Eretz Yisrael, we should assume that this mitzvah does not apply to grain that grew in chutz la’aretz. Indeed, this is the position of the tanna Rabbi Yishmael (Kiddushin 37a). However, Rabbi Eliezer disagrees, contending that the mitzvah applies also in chutz la’aretz.

This dispute is based on differing interpretations of an unusual verse. When closing its instructions concerning the mitzvah of chodosh, the Torah concludes: This is a law that you must always observe, throughout your generations, in all your dwelling places.” Why did the Torah add the last words, “in all your dwelling places”? Would we think that a mitzvah applies only in some dwellings and not in others?

The tanna’im mentioned above dispute how we are to understand these unusual words. Rabbi Eliezer explains that “in all your dwelling places” teaches that this prohibition, chodosh, is an exception to the rule of mitzvos ha’teluyos ba’aretz and applies to all your dwelling places – even those outside Eretz Yisrael. Thus, although we have a usual rule that agricultural mitzvos apply only in Eretz Yisrael, the Torah itself taught that chodosh is an exception and applies even in chutz la’aretz.

Rabbi Yishmael explains the words “in all your dwelling places” to mean that the mitzvah was not obligatory until the Jews had settled the Land of Israel, which was fourteen years after they crossed the Jordan River in the days of Yehoshua. As a result, he contends that chodosh indeed follows the general rule of agricultural mitzvos and applies only in Eretz Yisrael.

The New Planting

“When” a farmer plants his crops depends on many factors, including what variety or strain he is planting, climate and weather conditions, and, perhaps, his own personal schedule. At times in history, even non-Jewish religious observances were considerations, as we see from the following incident:

The Rosh reports that, in his day, whether most of the new grain was chodosh or yoshon depended on the timing of the gentiles’ religious season. Apparently, the gentiles in his time did not plant crops during a certain month. In some years, the gentiles planted well before Pesach, and in those years there was no chodosh concern, since the new grain became permitted while it was still growing. However, there were years in which the gentiles refrained from planting until much later, and in those years, the new grain was chodosh (Shu’t Rosh 2:1). We find, therefore, the rather anomalous situation in which the Rosh needed to know exactly when the gentiles observed their religious month to determine whether the grain was chodosh or yoshon.

What is New in Agriculture?

But one minute — the Rosh lived in Europe, first in Germany and then in Spain. Why was he concerned about chodosh? Should this not be an agricultural mitzvah that does not apply to produce grown outside of Eretz Yisrael? From the case above, we see that the Rosh ruled that chodosh is prohibited even in chutz la’aretz. The Rosh is not alone. Indeed, most, but not all, of the Rishonim and poskim conclude that chodosh applies to all grain regardless where it grows, since we see from the Gemara that chodosh was practiced in Bavel, even though it is outside Eretz Yisrael (Menachos 68b). However, notwithstanding the fact that the Rosh, the Tur and the Shulchan Aruch all prohibit chodosh grown in chutz la’aretz, the traditional approach among Ashkenazic Jewry was to permit the use of new grain. Why were they lenient, when most authorities rule like Rabbi Eliezer that chodosh is prohibited even outside Eretz Yisrael?

Later authorities suggest several reasons to permit consuming the new grain.

Doubly Doubtful

Many authorities 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, many major authorities permitted people to consume the obtainable grain (Rama, Yoreh Deah 293). However, we should note that this heter is dependent on current information, and these authorities agree that when one knows for certain that the grain being used is chodosh, one may not consume it.

The Rosh accepted this approach, and every year monitored the planting seasons so as to ascertain each year that this “double doubt” was accurate. In years that there was a chodosh problem, he refrained from eating the new grain – however, it is interesting to note that he was extremely careful not to point out his concerns to others. He further notes that his rebbe, the Maharam, followed the same practice. Thus, we see that some early gedolim were themselves strict about observing chodosh, but refrained from making this public knowledge, not wanting to cause what could prove to be a major burden for others. This practice was followed in the contemporary world by such great luminaries as Rav Yaakov Kaminetzsky, who was personally stringent on not eating chodosh, but was careful not to tell anyone, even family members, who followed the lenient approaches that I will soon share.

Another Heter

Other authorities permitted the chutz la’aretz grain, relying on the minority of early poskim who treat chodosh as a mitzvah that applies only in Eretz Yisrael (Taz; Aruch Hashulchan). This is based on a Gemara that states that when something has not been ruled definitively, under extenuating circumstances, one may rely on a minority opinion. (Niddah 9b).

This dispute then embroils one in a different issue: When the Gemara rules that under extenuating circumstances one may rely on a minority opinion, is this true only when dealing with a rabbinic prohibition, or may one do so even when dealing with a potential Torah prohibition? The Taz and Aruch Hashulchan, who permitted chodosh for this reason, conclude that one may follow a minority opinion even when dealing with a potential Torah prohibition. The Shach rejects this approach, and concludes that one must be stringent when one knows that the grain is chodosh (Nekudos Hakesef. See also his Pilpul Behanhagos Hora’ah, located after Yoreh Deah 242; cf. the Bach’s essay on the same topic, published in the back of the Tur Yoreh Deah, where he rules leniently on this issue.)

The Bach’s Heter

Another halachic basis to permit use of the new grain is 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. This last approach, often referred to simply as “the Bach’s heter,” is the basis upon which most Ashkenazic Jewry relied.

We may note that the Rosh, quoted above, did not accept the Bach’s heter, and that among the early authorities who reject this approach, we can count Tosafos (Kiddushin 37a end of s.v. kol), the Tur and the Shulchan Aruch. Similarly, the above-quoted responsum from the Rosh explicitly rejects this logic and contends that chodosh applies to grain grown in a gentile’s field.

Nevertheless, common custom accepted this as the main opinion, at least among Ashkenazim, and even many gedolei Yisrael followed this approach. 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 apply in a field owned by a gentile to the greatest scholars of that generation, all of whom accepted it. The Derisha, who predated the Bach, also accepts this approach and quotes approvingly several early authorities who accept this position.

The Bach, himself, further contends that, although the Rosh in his responsum rejected this approach, the Rosh subsequently changed his mind: in his halachic code, which was written after his responsa (see Tur, Choshen Mishpat, end of Chapter (72, he omits mention that the prohibition of chodosh applies to gentile-grown grain.

There is also an original position of the Kenesses Yechezkel who concludes that, although chodosh applies both in chutz la’aretz and to grain of a gentile, it does not apply when both circumstances apply simultaneously (Shu’t Yoreh Deah #41). Thus, those residing in chutz la’aretz have a right to follow the accepted practice, as indeed many, if not most, of the gedolei Yisrael did. However, others, such as the Mishnah Berurah, ruled strictly about this issue (see also Beis Hillel, Yoreh Deah).

Until fairly recently, many rabbonim felt that those who are strict about the prohibition should observe the law discreetly. They contended that one should do so because they felt that observing chodosh has the status of chumrah, and the underlying principle when observing any chumrah is hatznei’ah leches chumros should be observed modestly. (See Michtav Mei’eliyahu Volume 3, page 294.) Others feel that the practice of being lenient was based on an extenuating circumstance that is no longer valid, since yoshon is readily available in most large Jewish communities, and that, on the contrary, we should let people be aware how easy it is to observe the mitzvah.

North American Hechsherim

The assumption of virtually all hechsherim is that, unless mentioned otherwise, they rely on the halachic opinion of the Bach. Many decades ago, Rav Aharon Soloveichek pioneered his own personal hechsher that did not follow either the heter of the Bach or that of the Taz and Aruch Hashulchan. He further insisted that the yeshivos that he served as Rosh Yeshivah serve exclusively food that did not rely on these heterim. Today, there are a few other hechsherim that are following this approach, whereas the majority of hechsherim accept the heter of the Bach.

With this background, we can now address the first question that began our article. “When I was young, I do not think I ever heard about a prohibition called chodosh, or that something was yoshon. Now, I am constantly hearing the terms. Do we now have a new mitzvah?”

The answer is that the mitzvah is not new. When you were young, most halachic authorities felt either that one could rely on the opinion of the Bach, or felt that one should keep the topic quiet. Today, many feel that one may advertise the availability of a yoshon product.

In addition, there is an interesting agricultural background to this question. At one point in history, the flour commonly sold in the United States was from the previous year’s crop and always yoshon. Rav Yaakov Kaminetzky used to monitor the situation, and when the United States no longer followed this practice, he began to freeze flour so that he would have a supply during the winter and spring months during which it was an issue.

At this time of the year, there is no concern about chodosh in the United States since all the grain products now available took root before Pesach. Usually, the earliest chodosh products begin coming to market midsummer, and some products do not appear until the fall.

Visitors from Abroad

Let us now begin to answer the last question: “We have decided to stay permanently in Eretz Yisrael, but we visit the United States a few times a year. Do we need to be concerned about chodosh when we visit?”

As I mentioned above, someone who lives in chutz la’aretz has the halachic right not to be concerned about observing chodosh on grain that grows in chutz la’aretz. The question is whether someone who has moved to Eretz Yisrael and is now visiting chutz la’aretz has the same right.

Does the Halacha change depending on where you are?

Strange as this may seem, it does, indeed.

It is interesting to note that, when I was involved in kashrus supervision in the United States, the Israeli Chief Rabbinate’s position was not to accept the heter of the Bach. The Chief Rabbinate felt that the accepted custom in Israel is to be strict about this matter, and to treat any grain that follows the opinion of the Bach as not yet kosher.

Most, but not all, rabbonim I have asked agree that someone who considers himself to be living permanently in Eretz Yisrael should be stringent about the observance of yoshon. Their reasoning is that, since the accepted approach in Eretz Yisrael is to not accept this heter, that in Israel one does not have the right to be lenient and rely on this approach.

In Conclusion

In explaining the reason for this mitzvah, Rav Hirsch notes that one of Man’s greatest enemies is success, for, when he achieves it, he easily forgets his Creator and views himself as master of his own destiny. For this reason, the Torah created several mitzvos whose goal is to remind and discipline us to be ever aware of Hashem’s role our lives. Among these is the mitzvah of chodosh, which forbids us to consume the new grain until the korban omer has been offered, reminding us that this year’s crop is only a result of Hashem’s blessing (Horeb, Section 2 Chapter 42). Whether one follows the Bach’s approach to the chodosh laws or not, one should make note every time he sees a reference to yoshon and chodosh to recognize that success is our enemy, and that humility is our savior.

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