Im Ein Kemach Yashan, Ein Torah?

Shiur Objectives:
1. Define Yoshon/Chodosh and illuminate the basics of how to keep it.
2. Explore the Sugya about whether or not it is assur to eat chodosh in our day from the standpoint of law, history, and custom. Is eating Chodosh a Toraitic prohibition? Rabbinic? Neither? Does it ultimately even matter whether or not it's prohibited?
3. Motivate (at least partial) yoshon observance. Is there a strong case about keeping Yoshon in our day at least (partially/leniently) even though rabbis were not necessarily always keeping yoshon in the past?
4. To challenge those who are resolved not to keep yoshon to defend their choice on the firmest of all possible grounds (i.e. not because no one else keeps yoshon).

When Rabbi Herman first began gathering information, he utilized the halachic principal of meisiach lefi tumo (casually discussed). The companies would inform him about packing dates, best used dates and purchase dates. This information helped determine the chadash or Yoshon status of a product. A number of years ago, Rabbi Herman decided that meisiach l’fi tumo would no longer be applicable since the companies are now aware about the significance of the Yoshon market. Therefore, Rabbi Herman determines the chadash information based on the USDA crop progress reports. He calculates the earliest possible date that the products could be viewed as chadash. Consequently, he has far earlier cutoff dates than in the past.

To be Yashan, the Grain must have taken root, but what does that mean? It means sowing.
Sh”t Trumat HaDeshen 1:191 writes that it only takes 3 days for the plant to take root (13th of Nisan), while the Meiri Pesachim 55b writes that it takes two weeks (1st of Nisan ish). See further in Yalkut Yosef (Shaatnez UChaddash pg 441-2). Shulchan Aruch seems to prefer Nisan 13th. The Gra shrugs his shoulders and doesn't declare a victor. Today we are makpid to follow the stringent opinion.

Found in cholents, some tea bags, and some soy drinks.
Barley malt (or just malt) is sprouted, dried, aged, and roasted.
Large amounts are used in beer.
Small amounts are used to add to flour for chemical properties such as to facilitate rising.

Rye is always yoshon if grown in America!

Spelt is always Yoshon in America, typically presumed to be Yoshon in Canada.

Wheat
Spring wheat vs. Winter Wheat.
Spring wheat can be a chodosh problem. Winter wheat is not, in theory, but spring wheat may be mixed in.
Winter wheat is used for crackers and hard cookies. Spring wheat is used for soft items like cakes, soft cookies, and bread.
At least 70% of overall wheat is winter wheat.
In California, genetically spring wheat may be grown in winter.
Then there is durum, used for pastas. May be a chodosh problem.

Oats are the first of the grains to become chodosh.

RULES FOR INTERPRETING THE MISHNAH
1) Halacha k’stam Mishnah – the halacha follows an anonymous Mishnah. Some mishnayos cite the names of the Tannaim when quoting their opinions. In others, the view of a particular Tanna is stated anonymously. The Gemara says in several places that the halacha follows an anonymous Mishnah.
Okay but that won't help us. Assuming the tanna kamma counts as a stam mishnah (even though it is embroiled in a machloket), You seemingly have two stam Mishnahs saying very different things. Maybe whichever is the later mishnah is authoritative over the other, but how do we know that our order today is the order at the time of Yehuda HaNasi's compilation of the Mishnah? We really don't.
2) Stam v’achar kach machlokes, ein halacha k’stam – If an anonymous Mishnah is followed by a Mishnah in which Tannaim debate the subject of the anonymous Mishnah, the halacha does not follow the anonymous Mishnah. The fact that the mishnayos were arranged as such indicates that the anonymous opinion is not straightforward, and cannot necessarily be relied upon as final halacha.
This would indicate that we ignore the Tanna Kamma in Kiddushin and find there is an issur mid'oraita even chutz laaretz.
3) The opposite of the previous: Machlokes v’achar kach stam, halacha k’stam – if an anonymous Mishnah follows a Mishnah in which that issue is debated, the halacha follows the anonymous Mishnah.
There is not a Toraitic problem here.
4) An anonymous mishnah is said to be authored by Rabbi Eliezer, and the halachah is in any case in accordance with Rabbi Eliezer
There is a Toraitic problem!

RISHONIM WHO FORBID KEMACH CHODOSH CHUTZ LA'ARETZ AS MI D'ORAISA

1. The Rambam
2. The Rif
3. The Rosh
4. The Tur
5. The Ramban
6. The Meiri
7. Bahag
8. Sefer HaChinuch
9. The Smak
10. Smag
11. Ravyah

The Rosh says some curious things.
1. It's undoubtedly an issur d'orayta to consume chodosh chutz la'aretz
2. But one particular year it was the case that the winter crop froze over, and meanwhile everyone drank a lot of beer back then. The Rosh didn't have the heart to tell people on the podium of the shul not to eat it, better that they should transgress as shog'gin.
3. If people came to him, of course, he'd tell the truth. One can't. Then what one should do is go ask the gentile farmers and if they say there is a majority of the crops are yoshon, then one can act as if they are all yashan (we'll return to it later, but how is this a double doubt? It seems like a single doubt.)
Davar Sh'yeish lo matirin problem doesn't apply when there is a doubt as to its status.

THE OHR ZARUAH (13th Century France) AND THE SHA'AS HADCHAK
Quotes Mishnah Menachot 83b, limiting the Omer offering of barley to wheat that was grown in the land of Israel, and the Gemara [84a] 's seeming inference from that to the effect that the prohibition of chodosh is mid'rabanan. Faced a situation of "pressing need," which he felt allowed him to abrogate the rabbinic prohibition.

Approach of Tosafot in Kiddushin 36a
Agrees the issue of Chodosh is rabbinic but dislikes the Ohr Zaruah's logic. Prefers Safeik D'rabanan l'kulah. Permits eating grains where one is uncertain of the origin of the grains and their chadash status based on Meruba Parish, or that whatever emerges in a case of doubt conforms to the majority. Thus, all would seemingly hinge on whether or not most grains in a particular area and of a particular type are in fact not chodosh. In that case, one can simply assume that the grains are in fact yoshon and eat them.

Rabbeinu Baruch Approach
Chodosh is an issur mid'rabanan, made as a gezeirah during the Babylonian exile, and the issur only applies to lands that border Eretz Yisrael. Likens Chodosh to the taking of tithes which likewise only impacts lands close to Eretz Yisrael.

Shulchan Aruch/ Maran YD 293:1-3
The prohibition of chadash applies both in the Land of Israel and outside; whether a Jew's grain or a gentile's grain.
There is room for leniency, however, but only if circumstances are difficult, and it's for Shabbat (because Shabbat is a mitzvah). Doesn't think the Sfeik Sfeika of the Rosh is a good one. For safeik safeika to work, what you really want are for the odds to be solidly in your favor that you are transgressing no prohibition. There is an essential machloket about whether you need 2 safeiks that are 50/50 or better (a Safeik Shakul) 1/2 x 1/2 = 1/4 chance or less that you transgress anything or only at least one safeik shakul, and the second can be a minority. Here, neither is a safeik shakul. 3/4 x 3/4 chance of prohibition = 9/16 chance you are eating chodosh. In general, where Shulchan Aruch brings us is the idea of simple statistics. At the beginning of the year, after Pesach, you have basically a 100% chance that you are keeping Yoshon, but as time goes on, those statistics dwindle so that by next Purim, your chances of keeping Yoshon are going to be significantly lower.

The Rema (the right approach, the wrong application and result?)
Doesn't dispute that it is an issur mid'oraita, but simply assumes we can permit based on a sfeik safeika.
1. Perhaps the grains were planted before the 16th of Nisan
2. Perhaps it wasn't even grain from this year, but grain from last year. Moreover, if you know that number 2 isn't true, don't tell anyone because it is impossible for anyone to be in accordance with it, and so let them transgress as b'shogegin rather than b'meizid.
3. If we know for a fact that something is chodosh, then of course it is prohibited. But Rema advises that we in effect might never know that type of information because after all so much of our grain is imported (keep in mind, Poland back then was called the bread basket of Europe)
Comes along Rabbi Akiva Eiger.
This is not a sfeik safeika, this is a single doubt about whether the grain took root before Pesach. And you need two levels of if you are going to be lenient on a Torah prohibition without violating S'feik d'oraita l'chumrah!
Ergo can we revise the Rema's sfeik safeika in the light of Rabbi Eger as in fact saying
1. Doubt exists about whether the grain was in fact planted before Pesach?
2. Doubt exists, on lines similar to the Ohr Zarua, that a prohibition will apply if it won't be followed due to a pressing need like survival? (The Tur mentions a leniency when pogroms prevented the yidden from growing crops in a given year)
Or maybe the Rema is fudging his s'feik safeika based on the safeik of whether the issue is mi'd'oraita or not.

Does Yashan apply to drinks?
The Taz Y”D 293:4 and Penei Yehoshua (Kuntres Acharon on Kiddushin) and the Shach (citing the Lechem Mishnah) defend those who drink beverages that are produced from Chaddash grain.g Reasons to be lenient include. 1. The Torah mentions bread and not drinks (this is Aaron Lasker, not any rabbi as far as I know. 2. The grain itself is not used, only its derivatives. 3. Some who follow the leniency say that this only applies to whiskey and beer that was derived from a mixture (ta'aruvos) of different grains, only some of which were chodosh, but not if all the grains were chodosh. The Shach was not that comfortable based on the Rosh, which seemed to prohibit. However, the Chacham Tzvi 20, Aruch HaShulchan, and Yalkut Yosef (Shaatnez UChaddash pg 447) are all strict. The Gra maintained that someone who buys beer made from Chodosh grain for someone else as a transgressor of lifnei iver.

The Bach
Although chadash is prohibited chutz la'aretz, the prohibition only applies to Jewish grains, not gentile ones. Moreover, if you are machmir, don't publicize it, and only be machmir if you are extremely learned and pious Jew. And only be machmir in your own home! There is a problem though, because Shulchan Aruch (a.k.a. Maran, the one who never says anything without an aristocracy of 200 dead rabbis from earlier generations endorsing him), relying on Tosafot on Yerushalmi derives that chodosh does apply to gentile grains. Tosafot's reasoning is a follows. The reason that hafrashat challah is not discussed as one of the agricultural mitzvot is that gentile challah (even if kneaded by a Jew) is exempt from the obligation. Ergo, to the extent that chodosh is a true agricultural law, unlike hafrashat challah, it as well as other agricultural mitzvot must apply to both Jewish and gentile farms. The Bach says that this is no proof at all and comes up with a counterpoint that a simple reading of the Bavli would more likely suggest that the prohibition of chodosh does not apply to gentile grown grains. As you can already tell, the Bach is keen to defend chodosh by claiming it is in his power to stand in the Shulchan Aruch's shoes and reevaluate the formative texts. As we know, the Shulchan Aruch convenes a Beit Din of Rif, Rambam, and the Rosh to poskin halachah. Thus, the Bach's solution is to in fact argue that this beit din is on his side. He goes to great lengths to note that the Rambam is silent as to whether chodosh applies to gentile grain or not, and says that Rambam is so precise and makes note of such instances in other cases that it would support the negative inference that the Rambam does NOT think that chodosh applies to gentile grain. The Bach also tries to suggest that the Shulchan Aruch is relying on the wrong Rosh. The Rosh that we have seen, and which Shulcah Aruch read, suggested that Chodosh does apply to gentile grains. But the Bach maintains that a later work by the Rosh was at least open to interpretation as to what the Rosh actually thought.

Is the Bach correct about the Jewish vs. Gentile grain distinction?
Tosafot on Yerushalmi was not the only Rishon to explicitly rule out the validity of disqualifying gentile grains from the prohibition. We already saw the Tur. The Mordechai (13th Century Germany) and the Meiri (turn of the 14th century France) also explicitly endorse this view. Simultaneously, a minority of rishonim take the opposite view, that there is a distinction. The Meiri takes it upon himself to engage an unnamed interlocutor (per the Derisha, either Rav Avigdor and/or the Riva). Why is the Bach straining so hard to impute this view onto Rishonim and the gemara. Bach is not only defending common custom, but the behavior of great rabbis such as Rav Shachna and the Maharshal. Those great rabbis drank beer that was seemingly chodoshh. But recall that beer might not be a chodosh issue.The Mordechai mentions that it was common in his day in the 13th century that people would rely on a reasonable sfeik safeika (albeit the Mordechai was himself machmir) that perhaps the issur does not apply to shtiot/beverages (because the Torah says bread rather than drinks), and there is doubt about whether the grain was in fact yoshon or not anyway because most grain is in fact yoshon parish merubo. The Bach writes that the Maharal agreed with the Bach's contention when the Bach met the Maharal.
For those who will find the following convincing. The Baal Shem Tov ate Chodosh because a Bas Kol pronounced that the Bach was correct.
BUT
1. It was beer. Not Bread.
2. The Baal Shem Tov later became makpid and became fully Yoshon after hearing that Rabbi Yechiel of Horodna was makpid (See Baal Shem Tov Al HaTorah Parashas Emor, 7). I am chosheish that a bas kol can pasken halachah. But even if Baal Shem Tov is correct, surely one must go above and beyond the mere halachah to merit to hear a Bas Kol. And that meant keeping yashan.
The Chazon Ish quotes the Chafetz Chaim as saying that the Bach came into this world simply so that the masses would have an argument to rely on to allow them to escape the hellfire of Gehennam. But then we'll be reminded that the Bach did not speak lashon hara, which the Bach never permitted, and then he will potentially condemn us to that hellfire anyway. The Baal Shem Tov supposedly had a dream that Gehennom was cooled when the Bach died.

Legacy of the Bach
Most poskim categorically reject the Bach's approach. The Shach, Taz, the Gra, Chida, Pnei Yehoshua, Sha'agas Aryeh, Mishneh Berurah, and Aruch HaShulchan do not like this leniency at all.

The Taz (son in law of the Bach) says like the Bach that since great rabbis are lenient, we can assume a priori that there are grounds for leniency that are highly meritorious. The Taz also wants to say something very interesting, which is in my view a new way of understanding the s'feik s'feika. 1. A single doubt is as good as a s'feik sfeika to overcome a Toraitic prohibition if but only if there is a shas hadchak AND some sort of reasonable intrinsic doubt as to whether the status is in fact Toraitic. Over here, even though the Mishnah looks like it is declaring that chodosh is a Toraitic prohibition, there is what in the Mishneh to rely upon to counteract that assumption, and the Gemara doesn't definitively decide either way.
But even if you like the Taz, we probably aren't living in the shas hadchak today. We have soy, corn, quinoa, buckwheat, etc. We have Rabbi Herman's (z'l) Guide to Chodosh.

Rabbi Ben Zion Abba Shaul, the Or l'Tzion only likes this leniency on Shabbat and Yom Tov. Yalkut Yosef says if you follow this leniency, it only occurs if yoshon grain is NOT available.

Shach protests that the leniency of “kdai hu lismoch alav b’shaas hadechak” is only applied in the gemara to Rabbinic prohibitions, never biblical ones.

The GRA (Bach's Great-grandson)
The Vilna Gaon finds that chodosh clearly does apply to the field of a non-Jew. Anyone who disagrees is "in total error and not worthy of comment, he would have been wiser to remain silent."

The Mishkenos Ya'akov wrote a 25 page responsum justifying the minhag (ta'ut?) haolam to be lenient in Chutz La'aretz. But even he seems to uphold the principle that the issue is one of extenuating circumstances.

The Magein Avraham likes Rabbeinu Baruch, but says a Baal Nefesh should be stringent.

Aruch HaShulchan is like the Taz and will do whatever it takes to defend the lenient minhag of Jews where he lives, albeit with more varied and thorough reasoning than the Taz provides that takes in stock all of the aforementioned opinions and factors as well as vigorously maintaining the great difficulty of living in accordance with the prohibition. He resuscitates all of the obscure Rishonim he can to justify common practice.

The Mishnah Berurah seems distraught that the prohibition of Chodosh is so disregarded by the masses. He disapproves of the Rema's leniency in light of vaday chodosh that is being imported. He encourages at least partial observance wherever possible if it is too much for people to fully commit to the mitzvah. In other words, we need not take an all or nothing approach.

Yechezkel Rabinowicz, Rebbe of Radomsk, aka the Knesses Yechezkel.
Sure Chodosh applies chutz la'aretz and to the grain of a gentile. But it does not apply if both are true simultaneously then suddenly you are off the hook.

Sprouted Grain
Grain seeds are soaked in water until a tiny white root starts to sprout, at which point the germinating seed has its highest nutrient content
Then the seeds may be dried and ground into flour, or ground while wet into a paste used for making bread.
Grain Grass
A seeds put in a planter of dirt and left to gro, using only the leaves.
1. Rov poskim
Provided the grain seed was yoshon, then it doesn't become chadash due to sprouting.
A plant must take root in soil and give rise to a new plant to become chodosh.
A minority of poskim hold that grain grass is never chodosh, because you are just using leaves.
A minority of poskim say that sprouting is a chadash inducing event. Worst of all, if you sprouted the grains, then it is Jewish grain!!!!!!

Issues of Keilim
Chodosh is an Issur d'Rabanan
Magein Avraham asserts that those who are stringent to eat only yoshon can use chodosh equipment, even if the equipment is ben yomo and provided that the yoshon and chodosh items are min b'mino (i.e. have a similar taste). But if min b'sh'eino b'mino then must wait until eino ben yomo. No further kashering is required beyond that.
Chodosh is an Issur d'Orayta
Shaagas Aryeh says you always need to treat it as a regular case, accordingly and thus must kasher. OU interprets this to mean that a cold wash and eino ben yomo is good enough. When I consulted Rabbi Forchheimer of BMG, he agreed.

Issues of Batel
Chodosh is an Issur d' Robonon
Magein Avraham says Batel b'rov always applies here.
Chodosh as an Issur d' Orayta
In addition to your average batel situations, the most common issue is use of barley malt, which is often found in flour to facilitate rising, as a minor flavoring, coloring, or additive.
Malt is always Batul
Malt is Sometimes Batul
Malt is Never Batul/ Chodosh is Almost Never Batul
*Potentially, the principle of davar sh'yeish lo matirin applies, and chodosh is never bitul. This occurs when the treif thing that is being mixed in is only treif at the time of the admixture, instead of being treif in general. Thus, for example, chametz that is mixed in with non-chameitz, especially during Pesach, is not batel. An egg laid on Yom Tov is forbidden until after Yom Tov, and cannot become bitul on Yom Tov. Some say that this applies to keilim as well. E.G. if a fork that is treif is mixed together with a bunch of kosher forks, one cannot rely on Parish merubo. One should wait 24 hours and be certain that the fork is eino ben yomo.

• Rav Shechter says that yoshon is not davar sh'yeish lo matirin. It only becomes mutar after Passover. And you are forbidden to own it over Passover.
• However, the Yerushalmi Nedarim 6L4 limits this by allowing bitul in a case of min b'eino mino, i.e. of like and unlike. E.G. Chadash can be nullified into a vegetable mixture or some other foodstuff in which the laws of bitul do not apply. The Rema opines that one is not intending to eat the issur. The Taz doesn't like this, prefering to state that Chazal lacked a mechanism for eino mino mixtures, namely that one cannot taste the minute presence. The Rema goes further
• We have already seen by the Rosh that Davar sh'yeish Lo Matirin does not apply where there is a doubt as to whether the thing that got mixed in was forbidden at all.
• *The Ran believes bitul in general requires difference to take effect (i.e. if and only if there is eino b'mino regardless of the type of bitul we are refering to), that bitul is Toraitic, but that difference can be that one is heter and the other is issur, and that two heter objects can never be mixed (e.g. basar v'chalav). The halachah is not like the Ran.

Might be able to use a S'feik S'feika to rescue you. Maybe parish m'rubo. And maybe min b'eino mino. But not everyone holds that you can be someich on a s'feik s'feika to overcome davar sh'yeish lo matirin.

Various
A sephardi who is not yashan should not get an aliyah for the part of sukkot dealing with yashan.
Someone who doesn't eat chodosh mi doreita can't hear havdalah on chodosh beer. Perhaps not daytime kidddush either?
Can you sell chodosh?
Yalkut Yosef (Shaatnez UChaddash pg 417) is lenient, while Sh”t Shevet HaLevi Y”D 1:162 is strict. The Yalkut Yosef quotes other achronim who are lenient including the Shem Chadah (on Yeriyim Siman 169, pg 66d), Binat Adam (Siman 64), Keter Rosh (Siman 149) quoting the Gra, and Chasedei David (Menacot 10:7).