Emor - Chadash and Yoshon

The passuk in this week’s parsha (23: 14) says : ולחם וקלי וכרמל לא תאכלו עד עצם היום הזה עד הביאכם את קרבן אלוהיכם - And you shall not eat bread etc. until this very day,  until you bring the offering of your God. This passuk teaches us that all of the five grains (wheat, spelt, rye, oats, and barley) from the time they are harvested are forbidden until after the korban Omer is brought. However if the grain had already
taken root prior to the bringing of the korban that grain is permitted. Today that we do not
have a bais hamikdash and cannot bring the korban Omer the new grain is permitted after
the day the korban would have been brought; in Eretz Yisroel after the 16th day of Nissan,
and in Chutz L’aretz it is permitted after the 17th day of Nissan.

The Rama in Yorah Deah (293:3) cites the Tur in the name of the R"Ash that says that
if one has grain that he does not know when it grew it is permitted to eat because of a
s'fek s'faika (double safek). One safek is did it grow entirely before pessach or after. The
second safek is that even if it grew after pessach perhaps it took root before pessach and
would thus be permitted.

Many Achronim (R’ Akiva Aiger, the Nisivos, the Kraisi Uplaisi) were bothered by
this p’sak. They asked that this is not two separate sifakos rather it is one safek; did
the korban Omer pass and permit this grain. What does it matter if it grew entirely
before pessach or only took root by then, in both scenarios the korban permits the grain.
Therefore it should not be regarded as a s'fek s'faika, and should be forbidden.
The Uruch Hashulchan in Yorah Deah 293:16 suggests the following explanation for the
p’sak of the Rama. He says that if there is a nafka mina (halachic difference) between the
two sifakos then we can still apply the rule of s'fek s'faika even if they are essentially one
safek. He writes that there is a nafka mina between whether the grain grew last year or
if it only took root before the korban Omer. If it grew last year we would not be able to
use it in the korban Omer, whereas if it grew this year and took root before the korban we
would be able to use it for the korban. He adds although this difference is not applicable
nowadays nonetheless it is sufficient to separate the two s'faikos and apply a s'fek s'faika.

The sefer Harirai Kedem suggests that indeed there is a difference whether the grain
grew before the korban Omer was brought and if the grain had only taken root before
the korban was brought. Grain that grew at least a third before the korban was brought
becomes forbidden as chadash as it has grown enough to be considered eatable. Upon
bringing the korban Omer that grain looses its issur and becomes permitted. Whereas
grain that had not grown a third but had taken root prior the bringing of the korban
Omer was not considered a food, therefore it did not attain the issur of chadash. After
the korban Omer was brought this grain too would be permitted to eat for it was now
not chadash. The korban accomplished different things for each of the grains. If a grain
was already a food and was already forbidden as chadash the korban would remove the
issur chadash. If a grain had only taken root the korban would render it yoshon (old)
without it having ever entered into the prohibition of chadash to begin with.

Therefore we can understand the p’sak of the Rama that grain in which you are uncertain of when
it grew is permitted by means of a sifek sifaika, because there are indeed two separate
s'faikos. One safek is did it grow prior to bringing the korban and become a food which
was prohibited as chadash which would receive the heter from the korban, or did it grow
after the korban was brought and therefore did not yet become mutar. The second safek
is that even if it grew after the korban was brought and did not receive a heter from the
korban nonetheless perhaps it took root before the korban was brought and therefore did
not require a heter because it was deemed old grain without ever becoming prohibited.

{R.F.}