Eretz Yisrael is the home of the Jewish people and the place best suited for fulfilling the Torah (Sifrei to Devarim 11:18; Ramban to Vayikra 18:25; below, 13:1). It is also easier to observe the mitzva of ḥadash in Eretz Yisrael, since grain is sown at the beginning of winter and ripens around Pesaḥ. As a result, the Omer permits all types of grain, and one need only refrain from harvesting or eating grain that ripened before Pesaḥ until the day of the Omer. By contrast, in countries where rain falls during the summer as well, sowing is sometimes delayed until after Pesaḥ, so that part of the crop remains forbidden as ḥadash until the Omer of the following year. It was often difficult to determine which grain had taken root before the Omer and was therefore permitted, and which had taken root afterward and remained forbidden until the next Omer. Because this created a pressing difficulty, authorities permitted grain sold in the markets on the basis of a safek sfeika, a double doubt: perhaps the grain was from the previous year; and even if it was from the current year, perhaps it had taken root before the Omer; or perhaps it came from a place where all grain had taken root before the Omer (Ra’avya; Rosh). Others maintain that the prohibition of ḥadash outside Eretz Yisrael is rabbinic, and therefore, in any case of doubt, the halakha follows the lenient view (Or Zaru’a).
When Jews migrated to the cold countries of northern Europe, however, it became far more difficult to avoid violating the prohibition of ḥadash. Since the winters there are severe, grain was sown only toward the end of winter, and often took root only after the day of the Omer. In addition, summer grain was sometimes grown, since in some countries rain falls even in the summer. As a result, there were times when nearly all local grain was ḥadash, yet many ate it without checking whether it would remain forbidden until the following Omer. This was especially problematic with barley and oats, from which beer was made, as it was often clear that they came from the new crop.
In practice, some rabbis urged the public to observe the prohibition despite the difficulty. When the hardship became too great, others refrained from rebuking the community, knowing that their words would not be heeded. They invoked the principle, “Better that they sin inadvertently than deliberately” (Rosh; Rema YD 293:3).
Other authorities, faced with great hardship, sought grounds for leniency. Some maintained that, according to the lenient view in the Mishna, ḥadash does not apply outside Eretz Yisrael at all, and that this view may be relied upon in pressing circumstances (Taz YD 293:4). Others maintained that, according to the lenient view in the Mishna, ḥadash outside Eretz Yisrael is rabbinic and applies only in lands near Eretz Yisrael; therefore, in pressing circumstances, one may permit ḥadash in Europe and other lands far from Eretz Yisrael (AHS YD 293:20, based on Rabbeinu Barukh). Still others maintained that although ḥadash applies throughout the Diaspora, it applies only to grain owned by Jews, not to grain owned by gentiles (Baḥ). The halakhic authorities who issued these rulings were aware that, according to the overwhelming majority of Rishonim, the halakha follows the Tanna’im who maintain that ḥadash outside Eretz Yisrael is prohibited by Torah law even when the grain belongs to a gentile. Nevertheless, because of the great hardship, they relied on minority views and ruled leniently. In those countries, people depended so heavily on beer that it seemed as though “a person’s life truly depends on it” (Taz YD 293:4).[5]
[5]. The Mishna and Gemara in Kiddushin 37a record a dispute about ḥadash outside Eretz Yisrael. The first view – that of R. Yishmael – maintains that the prohibition does not apply there by Torah law. This is also the view of R. Elazar, son of R. Shimon b. Yoḥai. By contrast, R. Eliezer, R. Akiva, and R. Shimon b. Yoḥai maintain that the prohibition of ḥadash applies by Torah law even outside Eretz Yisrael, as the verse states: “an everlasting statute throughout your generations in all your dwellings” (Vayikra 23:14).
Tosafot to Menaḥot 68b explain, based on the statements of the Amoraim there, that all agree ḥadash applies in the Diaspora; the dispute is only whether it applies by Torah law or rabbinically. Sha’agat Aryeh, Ḥadash §1, writes similarly. Some, however, maintain that according to the first view, the prohibition of ḥadash does not apply outside Eretz Yisrael at all (Baḥ; Taz).
In practice, the overwhelming majority of Rishonim rule in accordance with R. Eliezer, maintaining that ḥadash applies by Torah law even outside Eretz Yisrael. First, this is the view of most Tanna’im. Second, this is the ruling of an anonymous Mishna, formulated as a practical halakhic ruling: “Ḥadash is prohibited by Torah law everywhere; orla is a received law; and kilayim is rabbinic” (Mishna, Orla 3:9). The same conclusion emerges from the practice of the later Amoraim – the sages of Rav Ashi’s academy and Ravina – who treated the prohibition of ḥadash in the Diaspora as Torah law (Menaḥot 68b).
This is the ruling of Rif, Rosh, Ramah (R. Meir Ha-Levi Abulafia), Meiri, Mordekhai, and Ritva in their comments to Kiddushin 37a. It is also the ruling of Rabbeinu Yona, Rokeaḥ, Rabbeinu Yeruḥam, Ra’avya, Sefer ha-Ḥinukh, Kol Bo, Semag, Semak, Rambam (MT, Laws of Forbidden Foods 10:2), Tur, and SA YD 293:2.
In Europe, however, observing the prohibition proved very difficult, and authorities therefore sought grounds for leniency. A few Rishonim maintain that the prohibition of ḥadash outside Eretz Yisrael is rabbinic (Or Zaru’a; Maharam, Me’il Tzedek). Accordingly, in cases of doubt, one may be lenient in pressing circumstances. According to Rabbeinu Barukh, cited in Responsa Ha-Rosh 2:1, ḥadash in the Diaspora is rabbinic and applies only in lands near Eretz Yisrael; AHS YD 293:19–21 develops this lenient approach.
Taz YD 293:4 maintains that according to the first view recorded in the Mishna in Kiddushin 37a, there is no prohibition of ḥadash in the Diaspora at all. Although the Rishonim ruled in accordance with the stringent majority view among the Tanna’im and Amoraim, Taz maintains that their ruling was not absolute. Therefore, in a time of need, one may rely on the lenient minority view (see Peninei Halakha: Shevi’it Ve-yovel 7, note 2). Some were also lenient when buying grain from a gentile, since according to Riva, cited by R. Avigdor, there is no prohibition of ḥadash on grain owned by a gentile in the Diaspora. According to Baḥ, there is no prohibition of ḥadash on grain owned by a gentile even in Eretz Yisrael. Leḥem Mishneh to Mishna, Terumot 11:2 suggests that beverages produced from grain are not prohibited.
Although most Aḥaronim maintain that the halakha follows the overwhelming majority of Rishonim – that ḥadash in the Diaspora is prohibited by Torah law – and that one should therefore be stringent when possible (MB 489:45), many relied on the lenient minority opinions because of pressing circumstances (AHS).
