Siman 293

It is written in parashat Emor: "When you come into the land... and reap its harvest, you shall bring the omer of the first of your harvest... and bread, parched grain, and fresh grain you shall not eat until this very day, until you have brought the offering of your God; it is an eternal statute for your generations in all your dwellings." And if one ate bread, parched grain, or fresh grain before the omer, he receives three sets of lashes (Keritot 5a) when he eats a kezayit of each one. Even though they are written in a single negative commandment, the Sages received a tradition that they are divided regarding lashes because one of them is redundant, as is stated in the Gemara there. And that which is written, "until this very day," which implies that upon the arrival of the day the chadash is permitted, and then it is written, "until you have brought [the offering]," the first part of the verse refers to a time when the Beit HaMikdash is not standing and there is no offering, for then the day itself permits; and the end of the verse deals with a time when the Beit HaMikdash is standing, for then the offering of the omer permits (Menachot 68a). And when do they sacrifice the offering? On the sixteenth of Nisan, as it is written there: "on the morrow of the Shabbat the kohen shall wave it." And the tradition came down to Moses from Sinai that this is the morrow of the festival of Pesach. According to the essential law, in this era, when the eastern horizon glows on the sixteenth of Nisan, the chadash is permitted; however, Rabban Yochanan ben Zakkai ordained that the "day of waving"—meaning the sixteenth day on which they wave the omer—should be entirely prohibited for the reason explained there. And the Rambam in chapter 10 of Ma'akhalot Assurot ruled that by Torah law the entire sixteenth day is prohibited in this era. Therefore, in the diaspora where they observe two days of Yom Tov, it is prohibited also on the seventeenth until the evening by rabbinic decree because it is a doubt concerning a Torah matter; so ruled the Rambam.

And if the prohibition of chadash applies also in the diaspora, R. Eliezer and the sages disagreed regarding this in the Mishnah at the end of the first chapter of Kiddushin, for R. Eliezer holds that chadash in the diaspora is forbidden by the Torah, as is implied by the plain meaning of the verse which concludes, "an eternal statute for your generations in all your dwellings," and its explanation is in every place where you dwell. And the sages hold that "in all your dwellings" does not come to include the diaspora, but rather to teach that they did not become obligated in this mitzvah upon their entry into the Land, but only after inheritance and dwelling, after they conquered the Land of Israel and divided it among the tribes. And the Rif, the Rambam, and the Rosh ruled like R. Eliezer because the anonymous Mishnah at the end of Orlah follows R. Eliezer, as we learned there: "Chadash is forbidden by the Torah in every place." And it is stated in the Yerushalmi that our Mishnah follows R. Eliezer of Kiddushin. And even though it is an anonymous Mishnah followed by a dispute, and the halakhah does not follow the anonymous Mishnah, it must be said that these our teachers hold that since there is no chronological order to the Mishnah, it can be said that it is a dispute followed by an anonymous Mishnah (and this requires further study, for the Kesef Mishneh wrote in chapter 9 of Rotzeach that between two orders there is a chronological order, see there, and the Tosafot Yom Tov already challenged him at the beginning of chapter 9 of Sotah, see there; and in the Magen Avraham at the end of siman 489; and what the Magen Avraham wrote, that since there is no order we return to the general rule that the halakhah follows the many, requires further study, for it is a doubt which Mishnah was taught first, and the Machatzit HaShekel already challenged him, see there).

However, according to this, it is only a doubt regarding a Torah prohibition, and their wording does not imply this. Furthermore, regarding the Rambam, it is impossible to say at all that he ruled because of a doubt, for he wrote that one is liable for malkot, and it also applies to after the fact, as is explained there; and if it were because of a doubt, he would not have obligated malkot. Furthermore, the giants of the world wondered about these, our teachers, as to why they had to depend on an anonymous Mishnah, for in Menachot (68b) the Amoraim disagreed on this matter, and thus it is stated there: Rav Papa and Rav Huna the son of Rav Yehoshua ate chadash on the night of the sixteenth; they held that chadash in the diaspora is rabbinic, and we are not concerned for the doubt. But the rabbis of the academy of Rav Ashi ate it on the morning of the seventeenth; they held that chadash in the diaspora is a Torah prohibition, etc. Ravina said: My mother told me, your father would not eat chadash until the night of the seventeenth, etc., and he was even more stringent than the rabbis of the academy of Rav Ashi, see there. And according to this, it was a dispute of the Amoraim, where Rav Papa and Rav Huna the son of Rav Yehoshua ruled like the Sages, and the rabbis of the academy of Rav Ashi and the father of Ravina ruled like Rabbi Eliezer. And in a place where the Amoraim rule on the law, it is not for us to decide based on the Mishnah, but rather to decide within the dispute of the Amoraim. And it appears that these, our teachers, ruled like the rabbis of the academy of Rav Ashi and the father of Ravina; but if so, they should have cited their words and ruled accordingly, and not said of their own accord that the halacha follows Rabbi Eliezer because of the anonymous Mishnah in Orlah (all the responsa that spoke of the matter of chadash, all of them raised this difficulty against them).

And I say that for this reason our teachers did not cite that which is in Menachot, because from there there is no decisive proof as to whom the halacha follows—whether like Rav Papa and Rav Huna, or like the rabbis of the school of Rav Ashi. For certainly, if Rav Ashi himself had ruled so, the halacha would follow him; but the rabbis of Rav Ashi are not like Rav Ashi, as is proven from Ketubot (22a), see there. And also from the father of Ravina there is no decisive proof, as is understood, and perhaps he was stringent upon himself. Therefore, they decided based on the Mishnah in Orlah. And if it is because perhaps it is an anonymous ruling followed by a dispute, since it was taught in a fixed halacha, as we learned there: "Chadash... and orlah are halacha, and kilayim are from the words of the scribes," see there; for in such a case we say in Bava Kamma (102a) that whatever is taught in a fixed halacha, the halacha is so, see there.

And a proof for this is that all the great authorities raised a difficulty against our teachers: for even if the anonymous mishnah in Orlah follows R. Eliezer, nevertheless we find another anonymous mishnah in Menachot at the beginning of the tenth chapter (83b) that is not like R. Eliezer, as we learned: All communal and individual offerings come from the Land and from outside the Land, from the new crop and from the old crop, except for the Omer and the Two Loaves, which only come from the new crop and from the Land. And we say in the Gemara (84a): According to whom is this? It is not like this Tanna, as it was taught: R. Yossi son of R. Yehuda says: The Omer comes from outside the Land. And how do I fulfill "When you come to the Land"? That they were not obligated in the Omer before they entered the Land. And he holds that the prohibition of chadash outside the Land is from the Torah, as it is written: "In all your dwellings," implying any place where you dwell; and "When you come" refers to the time of entry. And since it is from the Torah, they may also offer it. Thus far the words of the Gemara. And if so, automatically our mishnah, which said that they do not bring the Omer from outside the Land, holds that chadash outside the Land is not from the Torah, since the Gemara linked them to one another. According to this, the anonymous mishnah in Menachot follows the Sages and not R. Eliezer, and why should the anonymous mishnah in Kiddushin be stronger than the anonymous mishnah in Menachot? But according to our words, it is well-settled, because the anonymous mishnah in Orlah was taught regarding a decided halacha (and this is a fine resolution for the Rif and the Rosh, but not for the Rambam, who ruled in chapter 7 of Temidin like the mishnah that all offerings [must come from the Land], and the Lechem Mishneh there resolved it by saying that he holds they are not dependent on one another and learned it from "When you come," see there; but it is not understood since the Gemara linked them to one another. And the Sha'agat Aryeh in the New Responsa, siman 2, also resolved it similarly, that certainly from "When you come" it is proven that they do not bring the Omer from outside the Land even if chadash outside the Land is from the Torah; and this is what the Gemara meant regarding R. Yossi son of R. Yehuda: he holds chadash outside the Land is from the Torah, but they do not bring the Omer from outside the Land because of this, but only because he expounds "When you come" as "that they were not obligated etc." And this is what it meant regarding R. Yossi son of R. Yehuda: chadash outside the Land is from the Torah for another reason, for if not so, without the exclusion of the verse, it would be impossible to bring the Omer from outside the Land since chadash would not apply there, and therefore it was necessary to say so, see there. But his words are astonishing: first, if so, why did the Gemara need to conclude "and since it is from the Torah, they may also offer it," see there? Furthermore, when we examine what R. Yossi son of R. Yehuda says, "And how do I fulfill etc. that they were not obligated etc.," it is difficult: even if it be so, nevertheless, in the end, is it not written "When you come to the Land... and you shall reap its harvest and bring etc.," which explicitly means specifically from the Land of Israel, as indeed the Rambam cited from the end of the verse, see there? Rather, certainly it is not because of this that they do not bring the Omer from outside the Land, but it only depends on whether chadash outside the Land is from the Torah or not; and for this he says that "When you come" refers to the time of entry, see there carefully. And it seems to me to resolve the words of the Rambam that he explains our mishnah as not like R. Yossi son of R. Yehuda; that is to say, R. Yossi son of R. Yehuda makes the bringing of the Omer from outside the Land dependent on the law of chadash outside the Land being from the Torah, while our Tanna holds that they are not dependent on one another, and study this). 5. And there are some of our early teachers who ruled as halacha that chadash outside the Land is rabbinic, like the Sages of R. Eliezer, and they are: our teacher Baruch, author of the Terumot, as cited by the Rosh (Responsa, klal 2); and the Or Zarua, as cited by the Terumat HaDeshen (siman 191); and Riva, author of the Tosafot; and our teacher Avigdor; and Maharam Meil Tzedek (cited by the later authorities as written in the Taz and in Mishkenot Yaakov, siman 64). And so it appears from the words of the Ra'avan in his book at the end of the first chapter of Kiddushin (ibid.). And also in Maharil, in Likkutei Dinim, it is written in this wording: Maharil Segal said in the year etc., and in those years the men of action, the pious, the recluses, and the trembling etc. were careful not to eat the flour etc. because of the prohibition of chadash in it etc., for in those years they delay sowing until after Pesach. And even though the head of the poskim [ruled] that one need not be careful in this since regardless the prohibition of chadash outside the Land is rabbinic, nevertheless men of action are stringent etc. Subsequently I saw this entire law in the Great Mordechai. Thus far his words. Behold, the Maharil also held so, that chadash outside the Land is rabbinic, and he cited this from the Great Mordechai. And although before us in the Mordechai at the end of the first chapter of Kiddushin it is found: "Chadash is forbidden by the Torah in every place, and such is the halacha etc.," thus far his words; however, the witness is trusted to us, as it is known that the Mordechai is collected from many versions. And also before us there, prior to this, it appears like the words of the Maharil, as he wrote in this wording: And that which they are not careful now regarding chadash is because most crops are sown before Pesach etc. However, regarding crop that did not take root before Pesach, one must be careful not to eat etc. And even though specifically R. Eliezer forbade it and not the Sages, however there are Amoraim who forbid it in Menachot etc. Thus far his words. Behold, here it appears explicitly that in his opinion the halacha is not like R. Eliezer, and also the halacha is not clearly like the Amoraim who forbid it, for if so, he should have said "the halacha is like the Amoraim who forbid it"; and his wording where he wrote "however there are Amoraim who forbid it" means that one should be concerned for their words.

And in any case, many of the Rishonim who ruled not in accordance with Rabbi Eliezer, and the great Acharonim, exerted themselves to find a reason for their words and lengthily engaged in pilpulim upon which it is difficult to build a foundation for the law. However, now we have merited that the great Or Zarua has been printed, and he explained their reason and rationale (in siman 328), and it aligns with our previous words. This is his wording: It seems to me, the author, to rule the halacha that chadash in chutz la'aretz is rabbinic, as we learned in a Mishnah: All communal offerings etc. except for the Omer etc. And the Tanna taught us an anonymous Mishnah that chadash in chutz la'aretz is rabbinic, for if it were from the Torah, it would be brought from chutz la'aretz, as this is dependent on that, as is said in the Gemara etc. Like whom? Not like this Tanna, as it was taught: Rabbi Yose son of Rabbi Yehuda says the Omer is brought from chutz la'aretz etc. He holds chadash in chutz la'aretz is from the Torah etc. and since it is from the Torah, we also offer it. Thus you have learned that this is dependent on that. And Rav Nachman and Rav Yitzchak, their first Tanna also holds like the Rabbis. And this anonymous Mishnah is more preferable, as he taught it together with the offerings like that of the chapter "One [who judges] civil cases" etc. because he taught it regarding the laws of the legal ruling. Therefore, here too, this anonymous Mishnah is preferable, as this Omer is a communal meal-offering and he taught it regarding the laws of meal-offerings. But here [in the other Mishnah] he taught it incidentally to orlah and kilayim, and it is not as preferable as this anonymous Mishnah. And we say in the chapter "Rabbi Yishmael": Rav Papa and Rav Huna the son of Rav Yehoshua ate etc. they hold chadash in chutz la'aretz is rabbinic etc. And if because of the students of the school of Rabbi Eliezer etc. that is no proof, for we find that the Talmud does not want to rely on the students of the school of Rabbi Eliezer in Ketubot etc. because sometimes they were mistaken. And that which Ravina said, "My mother told me: your father would not eat" etc. and Rashi explained that he held chadash in chutz la'aretz is from the Torah—that is no proof. Firstly, we can explain well that he held chadash in chutz la'aretz is rabbinic and was stringent etc. And furthermore, even according to the explanation of our teacher Solomon, the father of Ravina held thus, but Ravina himself possibly held it was rabbinic. And furthermore, since the Mishnayot and the Tannaim are divided on the matter, and we also see Amoraim where some acted thus and some acted thus, and the halacha was not stated neither like this master nor like that master, and there is a case of pressing need, we ought to rely on the anonymous Mishnah and the Tannaim and Amoraim who hold chadash in chutz la'aretz is rabbinic, and we are not concerned for the doubt etc. Thus far his words. Meaning, in a case of doubt whether they were sown before Pesach or not. And he further elaborated there. And according to this, the reasons of our teachers who are lenient have been revealed to us, and the matters are as clear as the sun at noon. And had the great ones, who exerted themselves to find a permit according to the magnitude of the distress from this prohibition in our lands, seen [this], they would not have lengthily engaged in pilpulim, since the path is straight before us from an early Gaon, as the Or Zarua was the teacher of the Maharam of Rothenburg, the teacher of the Rosh, and he was a student of our teachers the authors of the Tosafot, and he is also cited in Tosafot in tractate Avodah Zarah (58b). And now our hearts shall rejoice and our souls shall exult to find merit for the community of Israel, and we will further explain this with the help of Heaven.

Grain that has not taken root before the sixteenth of Nisan is forbidden until the coming Omer arrives. And how much is the measure of taking root? It is written in the Terumat HaDeshen (siman 191) that it is three days, as is explicitly proven in Pesachim (55a), where they said that if one sowed on the thirteenth of Nisan, even close to evening, behold there are three days: the fourteenth, the fifteenth, and part of the sixteenth, and we say a part of the day is like the whole of it. But when one sowed on the fourteenth, such that it is necessary to say twice "a part of the day is like the whole of it," there is a dispute regarding this, for Rava Ashi holds that we say it and Ravina holds that we do not say it, see there. And I wonder that the poskim did not speak of this at all, as to whom the halacha follows. And it can be said that the reason is because we maintain that we do not begin work on the eve of Pesach, as is written in Orach Chaim in siman 468. Nevertheless, it is difficult, for behold at night work is permitted, and furthermore, if a gentile sowed, what is the law regarding chadash? And ostensibly the halacha is like Rava Ashi, for he is later, but regarding Ravina I do not know, and the Gemara brought this of Ravina afterward, and it requires further study.

However, many great authorities have raised difficulties regarding the essence of this law, for the sugya there follows the opinion of Rabbi Yehuda, and he holds that taking root is three days. But Rabbi Meir and Rabbi Yossi disagree with him in Rosh Hashanah (10b) and in Yevamot (83a), for Rabbi Meir holds that thirty days is the period for taking root in trees, and Rabbi Yehuda holds three days, and Rabbi Yossi and Rabbi Shimon say two weeks. And the halacha was decided there according to Rabbi Yossi and Rabbi Shimon (Nekudot HaKesef, and Noda BiYehuda, and the Gara, and the Shaagat Aryeh in the new responsa, and also the Gra alluded to this in subsection 2). And if we were to say to distinguish between grain and trees, behold the Shas in Pesachim raises a difficulty according to Rabbi Yehuda from trees to seeds (the Gra alluded to this, see there).

However, in truth, the words of the Terumat HaDeshen are true and clear, and the Gemara in Pesachim challenges based on a kal vachomer: if for trees three days are sufficient, how much more so for seeds. But it is impossible to say at all that anyone would maintain that seeds require thirty days, for in thirty days the grain has already grown and become fodder, as we say at the beginning of the third chapter of Bava Batra and at the end of the seventh chapter of Shabbat regarding "this parpisa," etc., where Rashi explains: a pot in which one sows, etc., fifteen days before Rosh Hashanah, and on the eve of Rosh Hashanah they surround it, etc. Behold, in fifteen days it is finished. And in Midrash Bereshit (chapter 16) it says to the Euphrates, etc., my actions prove my worth; they plant a planting in me and it rises in thirty days, they sow a sowing in me and it rises in three days, see there. Behold, it says explicitly that for a planting it is thirty days like Rabbi Meir, and for a sowing it is three days. And in the Yerushalmi Kilayim (chapter 2, mishna 2): how long until it is sown? Until it has been in the earth three days, see there. And the senses will prove in our gardens that in thirty days it has already sprouted much from the earth, and how is it relevant to speak of taking root over such a long time? And everyone agrees that regarding grain and seeds, the taking of root is only three days, and there is no reason to doubt this at all (Mishkenot Yaakov).

Grain that was sown after the Omer, or was sown but did not take root until after the Omer, and at the time of the Omer it was beneath the ground and had not yet begun to take root—there is a query in the Gemara (Bava Metzia 56b) whether this grain is considered as if it were placed in a jar and is permitted, for it was harvested long ago and the Omer permitted it, and it is not similar to grain that has taken root where the prohibition is due to the growth, and in this case growth is not yet applicable; or, since it is placed beneath the ground for sowing, the status of "detached" is nullified from it and it is like grain sown after the Omer and one must wait until the next Omer. The query was not resolved and it is prohibited due to doubt. Similarly, a stalk that reached a third of its growth before the Omer and he uprooted it after the Omer and it is permitted, but afterwards he went back and planted it and it added a small amount—we have a query in Menachot (69b) whether we follow the primary part and the Omer permitted it, or perhaps we follow the addition and the addition prohibits even the primary part until the next Omer comes. It was not resolved and it is prohibited due to doubt, and if he ate it, he receives lashes of rabbinic rebellion.

The Rambam wrote these two laws in chapter 10 of Ma'akhalot Assurot, as did the Tur and the Shulchan Arukh. I am astonished, for the law of the ear of grain contradicts the first law; for regarding the ear of grain, it implies that were it not for the addition, the primary part would be permitted. Yet according to the first law, even the primary part is forbidden due to doubt, even if it has not yet taken root in the ground, and certainly when it has taken root. Why then must we forbid it because of the addition, when it is forbidden of its own accord due to doubt? One cannot say that the inquiry is based on a premise of "if you will say" regarding the first law to permit it, for if so, it should have been specified. Perhaps an ear of grain is more lenient than wheat whose seed is under the ground, for it is nullified to the ground, whereas with an ear of grain, even when one plants it, only the stalk is rooted in the ground while the grain within it is above the ground, and it would be permitted if not for the addition. It requires further study.

The Tur and Shulchan Aruch wrote in section 2: The prohibition of chadash applies both in the Land and outside the Land, whether of an Israelite or of a gentile. Thus far their words. And behold, the Rif and the Rambam did not mention at all what the law is regarding that of a gentile, and only our teachers the authors of the Tosafot in Kiddushin (36b) proved from the Yerushalmi, which asks regarding the Mishnah there that every mitzvah that is dependent on the Land applies only in the Land except for orlah and kilayim which apply also outside the Land, and Rabbi Eliezer says even chadash applies outside the Land; and it asks why it does not teach challah, and answers because it does not apply to that of a gentile, see there. This implies explicitly that chadash applies to that of a gentile, and all our teachers agreed to this and ruled so in halacha. And one of the great Acharonim (Bach) rejected their words, for the Yerushalmi does not refer to Rabbi Eliezer but rather to the Sages and orlah and kilayim, and certainly it applies to theirs, but not chadash; and as for Rabbi Eliezer not teaching challah, it is because regarding challah the Sages do not disagree with him. And there are those who rejected his words, for this Yerushalmi is also at the end of orlah and there the view of Rabbi Eliezer is not present; but it is not so, for there too the Yerushalmi brings this Mishnah from Kiddushin, the dispute of the Sages and Rabbi Eliezer, and upon it asks why it does not teach challah, see there. And behold, he brought further proofs to permit from our Shas, and many rejected his words from all his proofs in the Yerushalmi and our Shas, and some upheld his words, and there is no consensus in these matters. And certainly it is difficult to disagree with our teachers the authors of the Tosafot, and the Rosh, and the Rashba, and the Ran who agreed with their words, unless with a clear proof, and such will not be.

However, even according to the words of our teachers, the Tosafists, it nevertheless appears that this is only rabbinic and not from the Torah, as they themselves wrote there; for that which [the Gemara] asks, why does it not teach challah which is practiced in the diaspora, this is certainly only rabbinic, and upon this it answers because it is not of theirs, for even rabbinically one is exempt. According to this, it can be proven that chadash is practiced in theirs rabbinically and not from the Torah (and the Korban HaEdah there explained that it refers to the Mishnah regarding produce of the diaspora that entered the Land, which is liable in challah from the Torah, see there; but it is not so, for behold, challah is dependent upon the kneading, and since the kneading was in the Land of Israel, it is not of the diaspora, and the primary [explanation] is like the words of the Tosafists, and reflect on this).

But the Rosh in a responsum there held it as obvious that the prohibition of chadash applies to that of gentiles even by Torah law. For wherever their [produce] is excluded, there is an exegetical derivation, such as regarding terumah, "your grain" and not the grain of a gentile, and similar cases; and wherever there is no exclusion, one should not distinguish, just as it is regarding kilayim and orlah, see there. And even though one cannot learn from orlah and kilayim, as they are more stringent than chadash as is explained in Kiddushin (38a), see there, nevertheless, without any derivation it is so; for since it applies outside the Land, consequently, what difference is there to me if it belongs to an Israelite or what difference is there to me if it belongs to them, and who would distinguish between them? And if it is because they do not bring the omer from theirs, as it is written "your harvest," behold, according to this view, they do not bring the omer at all from outside the Land, and nevertheless chadash applies by Torah law; if so, there is no distinction.

And it appears in my humble opinion that even according to this view, it depends on the dispute of whether a non-Jew has the power of acquisition in the Land of Israel or does not have the power of acquisition in the fourth chapter of Gittin (47a). For it is certain that even according to the one who forbids chadash in the Diaspora by Torah law, nevertheless it is obvious that the Diaspora should not be more stringent than the Land of Israel. According to this, for the one who says there is no power of acquisition, they have no land in the Land of Israel, and if so, also in the Diaspora the prohibition does not apply to their land, so that the Diaspora should not be more stringent than the Land of Israel. And we hold that there is no power of acquisition, as is explained in the Rambam, the first chapter of Terumot. And even though it could be said that there it is only regarding the uprooting of sanctity, see there, nevertheless the prohibition of chadash is also due to the sanctity of the omer or the time of the omer in this era. And likewise there is a dispute there whether they have the power of acquisition in the Land of Israel to dig pits, ditches, and caves, see there, and regarding this the halacha was not decided. And one may also depend on this dispute, as is understood. I have no proof for this matter, but through logical reasoning it appears so in my humble opinion as a secondary point for permission, as will be explained with the help of Heaven at the end of this siman.

Our teacher, the Rema, wrote in section 3: Nevertheless, all unspecified grain is permitted after Pesach by virtue of a double doubt: perhaps it is from last year, and if you say it is from this year, nevertheless perhaps it took root before the omer. Thus far his words. And even though chadash is a matter that has permitters and is not permitted by a double doubt, as is written in siman 110, it can be said that this applies to mixtures where there is at least a certainty of a prohibited substance here, and not to a double doubt regarding the essence of the prohibition where there is no prohibition here at all (Shach ibid. subsection 56). However, it is difficult: what double doubt is this? For it is all one category—a doubt whether the omer permitted it or did not permit it, and what does it matter to me if it is from last year or from this year before the omer (the Gara). And it appears to me that it is indeed a double doubt, for there is a practical difference between the two doubts; for if it is from last year, they do not bring the omer from it, as we require "the first of your harvest" and not the end of your harvest, as we say at the beginning of the chapter "Kol HaMenachot," see there. And if it is from this year, they do bring the omer from it. And the general rule in a double doubt is that whenever there is a practical difference between the doubts in any legal detail, even if it is not practiced in this time, it is considered a double doubt, as is written in siman 110 in the rules of double doubt.

He further wrote that regarding types of grain that are certainly sown after Pesach, such as in some countries where they sow oats and barley after Pesach, then one should be stringent after the harvest, unless the borders of the country are not closed and the majority of the grain comes from another place where they sow before Pesach. And similarly, when the winter days extend until after Pesach and in that entire region they sow the aforementioned things after Pesach, one should be stringent and be concerned by default. However, one should not instruct others in a place where the majority of their drinking and eating is from these types, for it is better that they be unintentional sinners and not be intentional sinners. Thus far his words.

And all these matters apply in Ashkenaz and Poland adjacent to it, where in most years they are sown before Pesach. But in our country, the country of Russia, there is no doubt at all, for before Pesach it is not yet the time for sowing at all, except in a remote occurrence once in twenty years, and we have no permission regarding chadash. And regarding this, it is not applicable to say of the collective of Israel "better they be unwitting" if it is a Torah prohibition. And conversely, it is almost impossible to be careful in this, for the harvest among us is in the month of Av and we would need to wait eight months. And in Sanhedrin (11b) it is taught: For three lands they intercalate the year, etc., and when Judea is one of them, everyone rejoices. And Rashi explained that when it ripened in Judea and they intercalate because of the other two, they extend the prohibition of chadash for them and the matter is difficult for them. Thus far his words. And if for one month it was difficult for them while they were dwelling on their land, how much more difficult is it for us to wait eight months from eating wheat and barley, and that from this some make groats and this is our entire sustenance, and from drinking beer all winter? And only individuals are careful in this, and it is difficult for them as is known. Therefore, the great sages of Israel arose to find permissions, are they not written in their books? And many relied on the permission that it does not apply to that of a gentile, and this permission is difficult to rely upon as I wrote in section 14. And there are those who wanted to rescue the drinking of beer on the grounds that the liquids that emerge from them are not like them (see Shach, subsection 50), and this too is strained, for "taste is like the essence" is a Torah principle, and more will be explained regarding this with the help of Heaven in section 23.

Indeed, now that we have merited the light sown for the righteous, and now for the upright of heart, joy, and there is no doubt in this, for the world holds like our teacher Baruch, and Riva, and our teacher Avigdor HaKohen, and our teacher Yitzchak the author of the Or Zarua, and our teacher Menachem Meil Tzedek, and the great Mordechai, and the Maharil, that chadash in chutz la'aretz is rabbinic. And as the Or Zarua explained their clear system, that one should set a plain statement against plain statements, and regarding Rabbi Eliezer and the sages, the halacha follows the sages. And according to their words, the prohibition of chadash depends on the omer, for from a place where they do not bring the omer, there chadash does not apply, for such is the plain meaning of the sugya at the beginning of the chapter "Kol HaKorbanot." And one should not ask: how is it possible to say so, for behold we learned at the beginning of Challah that if they did not take root before the omer, they are forbidden until the next omer? And it is explained there in the Yerushalmi that they do not bring the omer from this because we require "the beginning of your harvest" and not "the end of your harvest," see there. And so it is implied explicitly in the Gemara at the beginning of the chapter "Kol HaKorbanot," see there. Behold, the prohibition of chadash does not depend on the omer! However, this is no difficulty at all, for certainly it does not depend on the private planting of this individual, but it certainly depends on the place, for from a place from which it is disqualified for the omer offering, such as chutz la'aretz, also the prohibition of chadash does not apply to it, since the Merciful One dependent the prohibition of chadash on the offering of the omer. And even if the Rambam does not hold so, that they do not depend on one another, nevertheless these, our teachers, do hold so. And from the Rif and the Rosh there is no proof that they hold also in this like the Rambam, for it can be said that for the law they do not rule like the mishna of "all public offerings," and they hold like Rabbi Yose son of Rabbi Yehuda that the omer comes from chutz la'aretz, for behold they do not speak of the laws of offerings; rather, the plain statement regarding orlah was more powerful to them for the reason we wrote in section 4, and there is no practical difference in this.

And since it is rabbinic, the matter is simple, as the great authorities wrote, that they did not decree upon countries distant from Eretz Yisrael. For regarding all commandments dependent on the Land, when the sages decreed upon outside the Land, they only decreed upon the countries close to Eretz Yisrael, such as terumot and ma'asrot; and only regarding challah did they decree, because the obligation is at the time of the kneading of the dough. Furthermore, chadash is much lighter than terumot, ma'asrot, and challah, for tevel is punishable by death, therefore they decreed; but chadash is a negative commandment. And a clear proof for this is from what they said in Kiddushin (39a): kilayim of the vineyard, which in Eretz Yisrael is forbidden for benefit, they decreed outside the Land; kilayim of seeds, which in Eretz Yisrael is permitted for benefit, they did not decree outside the Land, see there. Behold, it is explicit that whenever the prohibition is a negative commandment and is permitted for benefit, they did not decree outside the Land. And if it is difficult, according to this, why did they decree regarding chadash upon the close countries? The reason is simple: because places close to one another transport grain from one to the other, and it would lead to a failure, as is understood. But why should they decree upon the distant ones? And more than this, how could they decree upon distant countries like ours, where we would need to wait more than half a year from the time of the harvest? This is something the community cannot endure, and we established that we do not decree a decree upon the community in a matter they cannot endure, and we derive this from a verse in the chapter "Ein Ma'amidin" (Avodah Zarah 36a). And for this reason, they nullified the prohibition of oil, see there; all the more so for grain, which is literally the life of a soul. Therefore, all the House of Israel are clean and have not stumbled in a prohibition, Heaven forbid.

And according to this, according to the approach of these teachers of ours, it is a complete permission even in the land of an Israelite. And the great authorities who established the permission because it does not apply to that of a gentile in chutz la'aretz wrote explicitly that the fields of an Israelite are forbidden. Yet we see many fields of an Israelite that an Israelite sows and they do not conduct themselves with the prohibition of chadash, and this is common in these countries, and for many generations they have conducted themselves so. But according to our words, that we hold like this approach, it is well. And according to the approach of the Rif, the Rambam, and the Rosh, we can state the permission regarding the fields of gentiles as I wrote in section 15. And even regarding the fields of an Israelite, perhaps it is possible to say that although according to their approach the prohibition of chadash is not dependent on the place from which the omer can be brought—as I wrote that according to the Rambam one must perforce say so, that this is not dependent on that—nevertheless it appears that since according to their approach the Torah excluded that they should not bring the omer from chutz la'aretz from the verse "When you come," as I wrote, we still require at any rate that it be fit to be brought. And that is in countries where at the time of Pesach they are already close to harvesting; but in our northern countries where they sow after Pesach and harvest before Rosh Hashanah, what did the Torah exclude? For there is neither sowing nor harvesting here at the time of Pesach.

And if you should say that the Torah excluded bringing from the previous year, it is impossible to say so, for this is disqualified even in Eretz Yisrael, as we say at the beginning of the chapter "Kol HaKorbanot" regarding the Sabbatical year: that it is impossible to sacrifice from the grain of the previous year because we require "the first of your harvest" and not the end of your harvest, or because we require "karmel" at the time of sacrifice; see there. And so we say in the Yerushalmi, the first chapter of Challah, at the end of halacha 1, regarding that which we learned: that if they took root before the omer, they are forbidden until the next omer comes. And Rabbi Elazar asked: what is the law regarding bringing the omer from them? And it challenges: is it possible to say so? For from the new and the old one may not separate terumot and ma'asrot from one for the other, and you say this? Meaning, how is it possible to sacrifice from them, for they are like two species regarding terumot and ma'asrot? And afterward it also says the reason of "the first of your harvest" and not the end of your harvest, and also because they are not bikkurim; see there. And it concludes: and they are those that reached a third before Rosh Hashanah, but if they reached a third after Rosh Hashanah, the omer comes from them. Thus far its words. Behold, if they reached a third before Rosh Hashanah, they are like two species, and certainly in these lands where they were already harvested before Rosh Hashanah, they are like two species and the omer does not come from them even in Eretz Yisrael. If so, there is no need to exclude outside the land for the reason of being outside the land, but rather for the reason that they are like two species. Rather, certainly the verse that excluded outside the land from bringing the omer must perforce not refer to these lands, but only to those adjacent to Eretz Yisrael, and even those distant to the west, south, and east, but not to the north, for they are not included in the permission of the omer nor in its prohibition. And certainly one should not build a firm foundation upon this without absolute proof, but I say so only as a supplementary point.

And I have seen some of the great authorities who permit beer made from barley of chadash even according to the Rif, the Rambam, and the Rosh, who hold that chadash outside the Land is a Torah prohibition, on the grounds that liquids that issue from them are not like them, and there is only a rabbinic prohibition in this; and regarding a rabbinic prohibition, one may be lenient outside the Land and with that which belongs to a non-Jew, and rely on those who are lenient (the Penei Yehoshua and Lechem Mishneh on the Mishnayot, cited by the Shach there, and other great authorities). In my humble opinion, this does not seem correct at all, for certainly there is a Torah prohibition in this, though there are no lashes for it, as will be explained with the help of Heaven, and as the Rosh wrote there and the Terumat HaDeshen there (and also the Chacham Tzevi, siman 80, rejected this on the grounds that the primary view follows the sugya in Chullin 120b; and they hold that the primary view follows the sugya in Pesachim 24b, that it is merely perspiration, but in my humble opinion the sugyot do not contradict one another, as is explained from the Tosafot there, and we will explain with the help of Heaven).

In Chullin ibid., it is derived regarding chametz, chelev, and the carcass of a pure bird that even though the language of "eating" is written concerning them, nevertheless, if one melted them until they became like liquids, he is nonetheless liable for karet in the case of chametz and chelev, and it imparts impurity in the gullet in the case of the carcass of a pure bird. For it is written "nefesh," which implies even drinking; that is to say, it is written "and that soul (nefesh) shall be cut off," for "nefesh" implies anything that settles a person's mind (Rashi). And it asks: that which was taught in a baraita, "the unclean ones," to forbid their brine, their broth, and their sediment—why do I need this? Let us learn it from these. And it answers: it is necessary, for I would have said [this only applies] when there is a kezayit, etc.; that is to say, that "the unclean ones" is written regarding sheratzim, and regarding them their prohibition is in any amount; see there. And it says further: and that which was taught in a baraita, tevel, chadash, hekdesh, etc., the liquids that emerge from them are like them—from where do we know this? And if you say let us learn it from those—what [is unique] to those is that their prohibition comes on its own; that is to say, and hekdesh, its prohibition is by means of his consecration that he consecrated; see there in Rashi and Tosafot.

And afterward it says: And that which we learned in a Mishnah, "date honey and apple wine etc. of terumah, Rabbi Eliezer obligates the principal and the fifth, and Rabbi Yehoshua exempts," in what do they disagree? In "judge from it and from it" etc. for in terumah it is only "new wine and oil" etc. Meaning, that in the eleventh chapter of Terumot we learned in a Mishnah: We do not make dates into honey nor apples into wine etc. we do not change them from their natural state except for olives and grapes alone; see there. And that which we learned in a Mishnah: "We do not administer the forty lashes for orlah except for that which emerges from olives and from grapes," who is the author? It is Rabbi Yehoshua etc. and he derived bikkurim from terumah and then brought it to orlah via "fruit" and "fruit" from bikkurim; see there. And the halacha is like Rabbi Yehoshua, as the Rambam wrote in Terumot and in Ma'akhalot Assurot at the end of the tenth chapter; see there. And the matter is understood, that according to the conclusion of the Shas, that which was taught previously, "tevel, and chadash, and hekdesh etc. liquids that emerge from them are like them," it is not similar to one who dissolved chametz or chelev who is liable for karet, for here there is only a Torah prohibition and there is not even malkot. And even though from the beginning of the sugya it implies that it compares them completely, according to the conclusion the comparison is only that in a matter of eating, even when it is made into a liquid, it has not left the category of prohibition, but the punishment is not completely similar except in olives and grapes, for so the Torah decreed.

And these are the very words of the Rambam, who wrote, and this is his wording: Tevel, and chadash, and hekdesh, etc., and orlah—liquids that emerge from their fruits are forbidden like them, but one is not lashed for them, except for the wine and oil of orlah, for which one is lashed just as one is lashed for their olives and their grapes. Thus far his words. And there are those who exerted themselves over his words (see Lechem Mishneh and Pnei Yehoshua and others), but according to our words it is simply settled. And if you should ask, in truth, what distinction is there in this between it and the melting of chametz and chelev? The distinction is simple: for when he melted the chametz and the chelev, it is the substance of the chametz and the substance of the chelev, except that it became a liquid, and the Torah included it from "nefesh." But regarding liquids that emerge from grain and fruits, even if not from the terminology of eating, this is not the substance of the fruit, for it is a different matter. And this matter is explained in Tosafot there (starting with "Heichi" in the name of our teacher, Shmuel), see there. Therefore, regarding the melting of chametz and chelev, the Rambam ruled there in chapter 14, law 9, that he is liable for karet, see there. And it is clear with the help of Heaven. (And according to this, also the previous Baraita, "the impure ones," to forbid their brine and their broth and their sediment—and I did not find this law in the Rambam because according to the conclusion it is not similar to chametz and chelev, and they fall under the prohibition of "taste is like the substance" which the Rambam explained there in chapter 15, and delve into this).

And in Pesachim (24b) R. Isaac said: Regarding all prohibitions in the Torah, one does not receive lashes for them except when consumed in the manner of their enjoyment, etc. R. Zera said: We too have also learned this in a Mishnah: One does not receive forty lashes, etc., except for that which issues from olives, etc. Abaye said to him: It would be well if it had informed us regarding the fruit itself, etc., but here it is because it is merely moisture. Thus far the words of the Gemara. And this is the explanation: Abaye rejects it, for certainly this is called the manner of its enjoyment, as there is no greater manner of enjoyment than extracting liquids from grain and fruit, and daily practice proves this; rather, it is because it is merely moisture, meaning because they have changed from the essence of the fruit, and this is not the fruit that the Torah prohibited. And were it not that the Torah obligated for oil and wine, even there we would exempt, but the Torah decreed for oil and wine; however, regarding all other fruits and grains, when one makes liquids from them, they change completely and become like mere moisture compared to the essence of the food, and therefore there are no lashes for this, but there is a Torah prohibition for this. And this is like the conclusion in Chullin and like the words of the Rambam, and this is clear with the help of Heaven. (And also in Tosafot there, s.v. "Ella," it is explained thus, and this is their wording: It is a wonder, etc., and it can be said that that which was necessary, etc., was not to exclude other liquids, for by law even wine and oil, etc., and there it was necessary to learn that we should consider the liquid of wine and oil like the fruit. Thus far their words. And this is as I have written. And the great authorities held that the passages contradict, and also Abaye holds that this is not called the manner of their enjoyment, and what he said, "merely moisture," his intention was that there is no Torah prohibition in this at all; see their words. But it is not so, and there is no contradiction here from passage to passage, and the words of the Tosafot and the Rambam support our words. And they labored in their words with various pilpulim and were very pressed, but the matter is clear as a matter of law that there is a Torah prohibition in beer for those who prohibit chadash outside the Land by Torah law, and delve into this.)

And only regarding brandy and dry yeast that were formed recently is it possible to easily find a permit even according to the view of those who forbid, since the primary basis of their production is from potatoes and winter grain, and the barley enters them only in a small amount for the sake of the fermentation agent. And there is much, much more than sixty against the barley, and even if it is a fermentation agent, this is only rabbinic. And even this is not so, for I heard from one expert in this that even without them there is fermentation, only that with the barley the fermentation is better; it is obvious that there is no concern in this and it is nullified in sixty. And it is not a "thing that has a permit," for on Pesach they are forbidden because of chametz. And there is one who wishes to permit the dough even if it was made from yeast of actual chadash, and he brings a proof from Bava Batra (97a) regarding yeast of terumah where the third is permitted (Mishkenot Yaakov siman 65). And his words are astonishing, for there it was mixed with much water, see there in Rashi and Tosafot, and the wine is merely acidity, which is not the case here where it is entirely from barley. And if it is because it is not fit for eating, behold all leaven is not fit for eating and nevertheless the Torah forbade it regarding chametz and the sages forbade it regarding terumah and kilayim of the vineyard, where even nullification is of no avail as is taught in several mishnayot in the second chapter of Orlah, see there. And the main point is like the words of those who forbid in this (Taz subsection 1). And only regarding our dry yeast is there reason to permit for the reason that I have written. And all this is according to the view of the Rif, the Rambam, and the Rosh, that chadash is forbidden by the Torah in the diaspora, but according to the view of many of our teachers there is no prohibition at all in chadash in the diaspora in our lands, as we have explained with the help of Heaven. And even according to the view of the Rif, the Rambam, and the Rosh, we have shown a welcoming countenance toward a permit based on two logical reasons in section 15 and section 22, see there. And in addition to this, the great ones who permit on the grounds that it is only forbidden in the diaspora regarding that which belongs to an Israelite and not regarding theirs. And all these are merely additional branches, but the main permit is that we hold according to the view of our teachers who ruled like the sages of Rabbi Eliezer and according to the reasons of the Or Zarua, which are correct reasons according to the sugyot of the Shas, and all the House of Israel are clear.