THE ISUR OF CHADASH IN CHUTZ LA'ARETZ NOWADAYS [Chalah: Chutz la'Aretz]
(Beraisa - R. Yishmael): "Ki Savo'u (...v'Yayin la'Nesech)" teaches that Nesachim must be brought on a Bamas Tzibur. "El Eretz Moshvoseichem Asher Ani Nosen Lachem" refers to a Bamah that is for everyone.
R. Akiva says, "Ki Savo'u" teaches that Nesachim must be brought on a Bamas Yachid. "El Eretz Moshvoseichem" refers to a Bamah that applies in all your dwellings, i.e. a Bamas Yachid.
R. Yishmael holds that Nesachim were not offered in the Midbar. R. Akiva (could) hold(s) that they were offered in the Midbar.
Menachos 68b: Rav Papa and Rav Huna brei d'Rav Yehoshua would eat Chodosh on the night after the 16th. They forbid Chodosh in Chutz la'Aretz only mid'Rabanan, so we are lenient about a Safek (which day was Rosh Chodesh).
Rabanan of Rav Ashi's academy ate from the morning of the 17th. They forbid in Chutz la'Aretz mid'Oraisa. Ravina's father did not eat until the next night.
(Mishnah): We may not bring a Chodosh Minchah before the Omer. If it was brought, it is Pasul.
We may not bring (after the Omer but) before Shtei ha'Lechem. If it was brought, it is Kosher.
(R. Tarfon) Question: Why is the law different if he brought before or after the Omer?
Answer (Yehudah ben Nechemyah): Before the Omer, its Isur to people was not permitted. After the Omer, this was permitted!
R. Tarfon was silent. Yehudah's face beamed.
R. Akiva: Are you happy that you outsmarted the Chacham?! I will be amazed if you live a long time!
83b (Mishnah): The Omer and Shtei ha'Lechem must come from Chodosh of Eretz Yisrael.
(Beraisa): If the Omer or Shtei ha'Lechem was brought from Yashan, it is Kosher, but a Mitzvah was lost. Regarding the Omer it says "Takriv Es Minchas Bikurecha" - even from the attic (Yashan, not harvested for the sake of the Omer). Regarding Shtei ha'Lechem it says "mi'Moshvoseichem Tavi'u" - not from Chutz la'Aretz.
The Tana'im (of the Mishnah and Beraisa) argue only about Chodosh. Both agree that the Omer and Shtei ha'Lechem must be from Eretz Yisrael. They argue with the following Tana:
(Beraisa - R. Yosi b'Rebbi Yehudah): The Omer may be brought from Chutz la'Aretz. "Ki Savo'u El ha'Aretz" teaches that the obligation to bring it will start when Yisrael will enter Eretz Yisrael (but not that it must be brought from Eretz Yisrael).
He forbids Chodosh mid'Oraisa in Chutz la'Aretz. He expounds "mi'Moshvoseichem" - wherever you dwell. "Ki Savo'u" - the obligation starts upon entering Eretz Yisrael.
Kidushin 36b (Mishnah): Any Mitzvah that is not dependent on land applies also in Chutz La'aretz, except for Orlah and Kil'ayim;
R. Eliezer says, even Chadash.
Abaye said that the first Tana holds like R. Yishmael ("Moshav" connotes after conquering and dividing. It does not include Chutz la'Aretz. R. Eliezer forbids even in Chutz la'Aretz.)
38b (Mishnah): Chadash is forbidden mid'Oraisa even in Chutz La'aretz.
Rif and Rosh (Kidushin 15a and 1:62): The Halachah follows R. Eliezer, for a Stam (anonymous) Mishnah (38b) supports him.
Rif (Pesachim 28a): A Mishnah forbids Chodosh mid'Oraisa everywhere. Ravina's father ate Chodosh only from the night after the 17th. The Torah forbids the 16th, and there is a Safek about the day. This is the Halachah.
Rambam (Hilchos Ma'achalos Asuros 10:2): One who eats Chadash before the Omer is lashed mid'Oraisa, in Eretz Yisrael and Chutz la'Aretz. When there is no Beis ha'Mikdash, the Torah forbids the entire day of the 16th of Nisan. Nowadays, in places where they observe two days of Yom Tov, the entire day of the 17th is forbidden mid'Rabanan until evening.
Kesef Mishneh: Rabanan of Rav Ashi's academy forbid Chodosh in Chutz la'Aretz mid'Oraisa. The Rambam rules like Ravina, for he is Basra.
R. Akiva Eiger: It did not suffice to say that he follows the Stam Mishnah, for perhaps the Mishnah in Kidushin was taught later (and the Halachah follows the first Tana), and we cannot lash due to Safek.
Radvaz: Even though nowadays the calendar was fixed, they sent from Eretz Yisrael 'be careful (to still fulfill) the custom of your ancestors.' This is why the Rambam did not say that the 17th is forbidden due to Safek, rather, mid'Rabanan.
Or Some'ach: The Rambam (Hilchos Temidim u'Musafim 7:5) rules like the Stam Mishnah (Menachos 83b), that the Omer and Shtei ha'Lechem must come from Eretz Yisrael. In Menachos 84a, we say that this is unlike the Tana who holds that Chodosh is mid'Oraisa in Chutz la'Aretz! This is why the Tana of the Mishnah holds that the Omer must be from Eretz Yisrael. How can the Rambam rule that Chodosh is mid'Oraisa in Chutz la'Aretz? I answer that only Shtei ha'Lechem must be from Eretz Yisrael, for it says mi'Moshvoseichem (but not all your dwellings), i.e. from Eretz Yisrael. All agree to this. The Ramban (Vayikra 23:16) says so. R. Yosi b'Rebbi Yehudah argues only about the Omer. The text of the Gemara should say '"Moshvoseichem" - wherever you settle. This refers to the Omer. (The Gemara 69b says so Stam.) What is the law of Shtei ha'Lechem? "Mi'Moshvoseichem" excludes Chutz la'Aretz. However, R. Yosi b'Rebbi Yehudah holds that there is no verse about the Omer. B'Chol Moshvoseichem refers to wherever you settle. Ki Savo'u refers to when you enter Eretz Yisrael. Since he permits (it seems that this should say forbids, i.e. Chodosh in Chutz la'Aretz - PF), reasoning teaches that the Omer may come from Chutz la'Aretz. We cannot learn from Shtei ha'Lechem, which comes only from Eretz Yisrael, since it permits only in the Mikdash. The Omer permits people outside the Mikdash, and since the Isur applies in Chutz la'Aretz, it may be brought from Chutz la'Aretz. The opinion (R. Yehudah ben Nechemyah, Menachos 68b) that the Omer permits also Nesachim or wine in the Mikdash learns the Omer from Shtei ha'Lechem. R. Yosi b'Rebbi Yehudah permits Nesachim before the Omer, like Yehudah. The Rambam disqualified Nesachim before the Omer, therefore, he requires the Omer to come from Eretz Yisrael. This is like R. Akiva, who says that the Omer must come from Eretz Yisrael, even though he holds that Moshvoseichem connotes wherever you settle, and Bnei Yisrael offered Nesachim in the Midbar, and Chodosh applies mid'Oraisa in Chutz la'Aretz. This is because he argues with Yehudah.
Teshuvas Rosh (2:1): Surely the Halachah follows R. Eliezer. The Stam Mishnah supports him, and R. Yishmael and R. Akiva. The Rif, Sefer ha'Mitzvos and Avi ha'Ezri rule like him. Regarding Chadash it says "Lechem v'Kali v'Charmel Lo Sochlu". This is even in Chutz la'Aretz, for it says "Moshvoseichem".
Rebuttal (Magen Avraham OC 489:17): The Rosh's proof from R. Akiva is invalid. Even the first Tana forbids grain of Eretz Yisrael in Chutz la'Aretz!
Taz (YD 293:4): Abaye said that R. Yishmael holds unlike R. Eliezer! We must say correct the text to say ' R. Yishmael holds like the first Tana...'
Dagul me'Revavah: The Gemara cites another Tana according to R. Yishmael. The latter could hold like R. Eliezer! If we will alter the text, we should fix it to say 'R. Shimon and R. Akiva hold like R. Eliezer.'
Terumas ha'Deshen (191): The Or Zaru'a says that Chadash is only mid'Rabanan in Chutz la'Aretz.
Shulchan Aruch (YD 293:2): The Isur of Chadash applies in Eretz Yisrael and Chutz la'Aretz, both to grain of Yisrael and of Nochrim.
Beis Yosef (DH u'Mah she'Chosav): The Poskim rule like R. Eliezer, unlike R. Baruch.
Gra: Seemingly, the Mishnah (Menachos 83b) is unlike R. Eliezer! Really, even though the Mishnah holds that the Omer must come from Eretz Yisrael, it could forbid mid'Oraisa in Chutz la'Aretz. We always follow the Rabanan of (the Beis Medrash of) Ravina and Rav Ashi, for they are Basra. Even Rav Papa and Rav Huna brei d'Rav Yehoshua forbid mid'Rabanan.
Shulchan Aruch (OC 489:10): One may not eat Chadash even nowadays, bread or parched grain or fresh grain, until the beginning of the night of the 18th of Nisan, and in Eretz Yisrael until the beginning of the night of the 17th.
Magen Avraham (17): A Stam Mishnah (Orlah 3:9) is like R. Eliezer, but it is followed by an argument (Kidushin 36b). Ein Seder l'Mishnah (we do not know the order in which different Masechtos were taught), so we rule like the first Tana. The Kesef Mishneh (Hilchos Rotze'ach 9:1) says that (the Rambam holds that) there is Seder in different Sedorim. This is unlike Tosfos (Shabbos 81b DH veha'Amar and Yevamos 42b DH Stam).
Kapos Temarim (Sukah 37a Tosfos DH Kol): The Gemara says that Ein Seder l'Mishnah. Tosfos here applies this within one Seder of the Mishnah, but the six Sedorim were taught in order. The Kesef Mishneh's proof is not clear. The Rosh (Pesachim 2:3) cites Rashi (ha'Griv - Rashi does not say so; Tosfos 27b DH Ein does) who holds like this, but cites Ge'onim who disagree. Elsewhere, Tosfos holds that Ein Seder even in different Sedorim.
Note: The former opinion holds that Rebbi followed the order in the verse alluding to the six Sedorim ("v'Hayah Emunas Itecha..." - Shabbos 31a). The Rosh himself (Chulin 8:2) rules like the latter opinion.
Question (Machatzis ha'Shekel DH mi'Kol): Why does the Magen Avraham say that if Ein Seder l'Mishnah, we rule like the first Tana? Even if Kidushin 36b were a Stam Mishnah, it would be a Safek whom the Halachah follows!
Panim Me'iros (3:34 DH Yesh): The Beraisa that says that the Omer must come from Eretz Yisrael holds that mid'Oraisa, Chadash does not apply in Chutz la'Aretz. If there is an argument in the Mishnah (Rebbi was unsure), we do not follow a Stam Beraisa, for R. Chiya, Rebbi's Talmid, would not know better! Two Stam Mishnayos are no stronger than one (Kidushin 54b). However, if Stam Mishnayos contradict each other, we follow a Stam Beraisa. R. Chiya knew that Rebbi retracted.
Pnei Yehoshua (Kuntres Acharon Kidushin 51, DH ume'Atah): Even those who forbid rely primarily on the Stam Mishnah, but not on the Amora'im, for they did not argue based on their own reasoning. Those who permit hold that the Stam Mishnah in Menachos primary, for that is where laws (of the Omer) were taught. Also, there is a second Stam Mishnah (Shevi'is 4:1) that permits mid'Oraisa in Chutz la'Aretz. (It says that in Shemitah, they paid people to guard grain for the Omer. If Chadash applied in Chutz la'Aretz, it would be permitted to bring the Omer from there. This would be better than guarding grain in Eretz Yisrael.) In Kidushin we asked whether R. Eliezer is more lenient or more stringent than the first Tana, and the Stam Gemara, which is Basra more than the Rabanan of Rav Ashi and Ravina's academy in Kidushin 38, concluded that the first Tana (the majority opinion) is more lenient.
Note: The Stam Gemara is the Rabanan of Bei Rav Ashi (Rashi Sukah 3b DH Haysah) and Ravina! We must say that this is the norm, but when it is unlike them, we must say that it is later, e.g. Mar bar Rav Ashi.