Everything Old Is New Again

Why are many Jews in the Diaspora lenient in their observance of yashan? There is a minority opinion of Rabbeinu Baruch that states that the mitzvah doesn’t apply to lands that are distant from Israel. According to him, grain grown in America is not subject to the laws of yashan even on a rabbinic level. Further, there is room for leniency when one cannot be certain if indeed the grain he is consuming is from the new crop or old crop. The Rema states that this latter reason can be fashioned into a s’fek s’feika—a situation of double doubt where one may be lenient.

Sadly, now we have no Beis HaMikdash and the Omer isn’t offered. On what grounds may we eat from the new crop? The pasuk above mentions two clauses side by side: A. “Until this very day.” B. “Until you bring the offering of Hashem.” The Gemara understands that the second clause refers to a time when the Beis HaMikdash is standing (at least according to Rav and Shmuel). The new grain becomes permitted when the Omer is offered. The first clause refers to a time like the present, when we have no Beis HaMikdash. In that case, it is the day itself that permits the new crop of grain. The day referred to is the 16th day of Nissan when the Omer would have been brought had the Beis HaMikdash been standing. Rav and Shmuel are of the opinion that on a biblical level one may consume the new harvest on the morning of the 16th of Nissan. (Obviously assuming there are no chametz issues involved.) Rebbe Yehudah is of the opinion that even on a biblical level one may not consume the new grain until the entire 16th day has passed. What is the basis of their argument?

To shed light on this issue, we should look at a legal decision rendered a few years ago.

A New York City ordinance makes every homeowner legally responsible for the cleanliness of the sidewalk in front of his property. Initially the law provided that anyone could receive a ticket at any hour of the day if his sidewalk was deemed unclean by a sanitation inspector. A law sponsored in 2004 by City Councilman Simcha Felder changed that. The law now permits the Sanitation Department to hand out summonses for dirty sidewalks at residential premises “only during . . . two one-hour periods each day . . . : 8 a.m.–9 a.m., 12 noon–1 p.m.”

On July 19, 2005, a Sanitation Department enforcement officer issued a $100 summons to David Rubin of Boro Park for not removing a disposable plate and cup, a candy wrapper, and a water bottle at the curb in front of his home; the time was exactly 9:00 a.m.

Mr. Rubin argued before an administrative law judge at the Environmental Control Board that tickets can only be written for violations occurring up until 9:00 a.m., but not exactly at 9:00 a.m. The judge disagreed and upheld the penalty. But Rubin appealed the decision, and the appeals officers agreed with him:

“[The city’s] position that residential routing hours commence at and include 8:00 a.m. . . . and end at and include 9:00 a.m. . . . would define predetermined periods in excess of one hour each.” In other words, to include the minute of 9:00 a.m. would mean that the enforcement period is 61 minutes, not the “one-hour period” stated in the ordinance. So, in this case, “8 a.m.–9 a.m.” means a time period starting at exactly 8:00 a.m. and ending at, but not including, 9:00 a.m.

This logic is referred to in the Gemara as “ad v’lo ad bichlal.” Rav and Shmuel understand that the Torah’s command not to eat from the new grain is up until but not including the 16th day of Nissan. Rebbe Yehudah disagrees because he holds “ad v’ad bichlal.” The Torah’s commandment is to refrain from consuming the new crop of grain up until and including the 16th day of Nissan.

I hope that this article has shed some new light on an old issue.