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Since Talmudic times, Rabbinic scholars have grappled with the apparent contradiction between the Biblical and/or Rabbinic prohibition(s) of chodosh (new grain grown since Passover) and the common Ashkenazic practice in the Diaspora to ignore the issue. The Talmud (Menachot) records that there was a dispute between Tannaitic and Amoraic scholars regarding whether chodosh outside Israel is forbidden biblically or Rabbinically. The overwhelming majority of the most prominent post-Talmudic authorities ruled that the prohibition is biblical in nature even outside Israel (e.g. Maimonides, Rif, Rosh, Shulchan Aruch, Ram"a, Ba"ch, Gr"a, Sha"ch, Ta"z) which means that even an equiprobable uncertainty (safek hashakul) would be completely forbidden. (Further, following the Maharshal, Rav Moshe Feinstein doesn't even allow relying on a majority to be lenient.) Nonetheless, the common practice continues to be one of leniency.

In Europe, one justification of the practice was suggested by the Ba"ch who argued with both those who preceded and those who followed him and claimed the prohibition only applied to Jewish-owned grain. This approach appears to be the one adopted by the Hassidic community following a story in which the Baal Shem Tov was temporarily lenient because of the Bach allegedly appearing to him in a dream.* Nonetheless, this leniency is widespread in even the Mithnagdic community that generally would follow the Rama (who follows the Ro"sh and maintains it's a biblical prohibition regardless of ownership).

This leniency of the Bach is almost universally rejected, including by his son-in-law, the Taz, who instead suggests that b'shaat hadechak (in time of pressing need), there is room to be reliant on the minority Tanaitic position that the prohibition is only Rabbinic, thus allowing leniency in cases of safek hashakul.** The Shach rejects this leniency as well since the Talmudic dictum upon which the Taz is based "kdai hu Rabbi Eliezer lismoch alav bshaas hadechak ("Fitting is Rabbi Eliezer to rely upon him in time of duress") never appears where the majority position was that the prohibition is biblical in nature. The Taz is however relied upon by Rav Nachum Rabinovitch, shlitah, in his responsa sefer Siach Nachum. Nonetheless, it seems fairly self-evident that even the Taz would be strict in a city where yoshon (grain that rooted before Passover) alternatives are cheaply and readily available, such as in New York and its suburbs.

Another leniency is suggested by the Aruch HaShulchan to be used in combination with other leniencies, based on the recently unearthed rulings of the Ohr Zarua. He justified the already common practice by suggesting two stacked chiddushim: 1. that the lenient communities traditionally followed the minority Tannaitic position, and 2. that that position only forbade (even Rabbinically) chodosh in lands near Israel. (Presumably, this distance included Jewish Iraq/Bavel since even the Amoraim who were lenient there with regard to biblical law, kept the Rabbinic prohibition.) My understanding is that this position is what is relied upon by Rav Herschel Schachter, shlitah, and (more recently) by Rav Mordechai Willig, shlitah.

(Well that was a mouthful...)

My questions are:

To my understanding (please correct me if I am wrong), the O-U uses a majority rule of their 3 poskim, shlitah: Rav Schechter, Rav Yisrael Belsky, and Rav Menachem Genack. Rav Belsky and Rav Genack are themselves machmir (strict).

So what is the reasoning behind the O-U's certification as kosher of products that are possibly/probably/definitely chodosh (particularly considering their stringent positions even beyond the letter of the law with regard to certifying other issues - e.g. relying on rov-majority)?

Similarly, do Rav Schechter and Rav Willig reject the majority position of the mainstream Rishonim and Achronim, even in places and/or for persons for whom it is not a shaat hadechak? What is the basis for rejecting the majority and mainstream positions based on an at best speculative retrospective claim that the communities' authorities were lenient? Considering we no longer (and perhaps never) lived in the communities of the minority/non-existent lenient position, why would we not now follow the majority?

Further, inasmuch as these practices were used in a post-hoc, minhag-justifying, shaat hadechak manner in a climate where the masses were unlikely to have heeded a stringent ruling (see e.g. Rama citing Rosh), what justification is there to be lenient nowadays for those who are strict for even more tedious and more minor stringencies?

Finally, is there any other argument used by kashrut agencies to justify their certification of chodosh, when they are strict on other seemingly far more minor issues?


*(I'm not sure how this reliance shouldn't be a violation of the Midrashic interpretation of "lo bashamayim hi;)

**The Gr"a also uses unusually harsh language in rejecting his great-great-great-grandfather the Be'er HaGolah's lenient position, arguing that it would have been if he had never written it.

closed as too broad by Double AA Dec 7 '16 at 14:39

Please edit the question to limit it to a specific problem with enough detail to identify an adequate answer. Avoid asking multiple distinct questions at once. See the How to Ask page for help clarifying this question. If this question can be reworded to fit the rules in the help center, please edit the question.

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    There are too many questions in this post methinks. – Double AA Jan 7 '16 at 23:57
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    oukosher.org/blog/consumer-kosher/yashan-chadash "The OU does not enforce a Yashan status of products under its supervision in Chutz L’Aretz, basing itself on the prevalent custom" – Yishai Jan 8 '16 at 0:02
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    @Yishai WADR, whatever the OU says is the prevailing custom in the US, so that is quite circular... – Double AA Jan 8 '16 at 0:40
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    Loewian, I think you should remove the entire introduction which doesn't add anything to the post, and ask about the OU's policy, the opinions of R Schachter and R Willig, and the seeming contrast in common attitude between this and more minor issues, in three separate posts. – Double AA Jan 8 '16 at 0:53
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    You've four questions afaict. The first two are about the OU. The last two aren't. I recommending removing the latter two. This is too broad as is. – msh210 Jan 8 '16 at 1:00
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To start, you may want to address that question to the O-U directly, as third entities would be largely speculative.

My speculation, though, is that it would be too difficult, even today, to certify food for the masses of Americans and all the food products by Yashan standards. The reason is that in many places, varying by the season, Yashan grain would be hard to come by for the whole year. This becomes increasingly difficult as Chadash grain will become permitted at some future time (after Passover) and therefore cannot be batel b'shishim. This extreme degree of care may be too much for many food producers. Even foods without grain ingredients would be at risk of cross-contamination. So while some foods do come marked as Yashan, it's too much to demand it for a basic O-U.

I would also suggest that culturally, different people and generations have different priorities, even though it is not halachically permitted to do so. For a long time, nobody cared about shaatnez. Today, many don't care about Yashan. Whether or not that is okay, it happens, and for many it would be too restrictive to even entertain a logical consideration of the actual halacha.

That said, many people are starting to avoid Chadash grain. And there are resources to find out when food was produced and what time of the year Chadash grains would have likely entered the food. For example, a few months after Passover, Chadash grain may be used for flower, so some check expiration dates on boxes to make sure it wasn't produced after mid-summer or so. Of course that is just besides the point.

  • Even pretending davar sheyesh lo mattirin didn't exist would be better than the current situation, as that's a din derabanan. Also most Acharonim are Meikil on Keilim of Chadash in general so it would be pretty easy in factories. Shaatnez is also a poor analogue as even nowadays there is very reasonably not a need to check anything, despite what Shaatnez businesses tell you. – Double AA Jan 7 '16 at 23:55
  • "in many places, varying by the season, Yashan grain would be hard to come by for the whole year" Do you know this? Did you make it up? Are you an expert in American grain production and milling cycles? – Double AA Jan 7 '16 at 23:59
  • @DoubleAA Yes, I don't remember where I heard it, but if I recall, in the past America had grain reserves for years and stuff was more often yashan by default, but for whatever the reason this is not the case and most grain products made in the winter will be chadash unless the baker goes out of his way, so it's hard to demand that General Mills and everyone uses old grain. – Uncle Jan 8 '16 at 4:50
  • General Mills actually does use [mostly] old grain in their cereal. It's a lot more complicated then you might think (winter wheat is cheaper but tends to produce less chewy dough). More importantly, traditionally Jews do crazier things than not being able to eat Cheerios for 6 months in order to fulfill God's commands. – Double AA Jan 8 '16 at 5:43
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    Schwer zu sein ein a pelican... – Double AA Jan 8 '16 at 7:26

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