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From: Yeshivat Har Etzion Office <office@etzion.org.il>
To: yhe-test@etzion.org.il
Subject: HALAKHA61 -22: Sefirat Ha-omer

YESHIVAT HAR ETZION
ISRAEL KOSCHITZKY VIRTUAL BEIT MIDRASH (VBM)
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HALAKHA: A WEEKLY SHIUR IN HALAKHIC TOPICS

Sefirat Ha-omer: A Biblical or Rabbinic Obligation?

By Rav Yosef Tzvi Rimon
Translated by David Silverberg

During the times of the Beit Ha-mikdash, there existed - unquestionably - a Biblical obligation to count the omer (see Vayikra 23:15-16). Regarding the nature of the obligation nowadays, the Rambam writes (Hilkhot Temidin U-musafin 7:22-4):

"There is a mitzvat asei ['positive obligation'] to count seven complete weeks from the day of the bringing of the omer [the sixteenth of Nissan], as it says, 'You shall count for yourselves, from the day following the Shabbat, seven weeks.' There is a mitzva to count the days together with the weeks, as it says, 'You shall count fifty days'. This mitzva applies to all males among Yisrael, in every place and at every time. "

Thus, according to the Rambam, the obligtion applies even nowadays on the level of a Biblical imperative ("mi-de'orayta").[1] This is also the view of the Shibolei Ha-leket (234) and the Ravya (cited in the Or Zarua, 329).

Tosafot (Menachot 66a), however, argue:

"It appears that when one is in doubt as to whether or not night has fallen one may recite the berakha [over sefirat ha-omer] and need not wait until the time when night has definitely fallen, since this constitutes a situation of doubt concerning a rabbinic law [regarding which we rule leniently]."

The Ba'al Ha-ma'or (end of Pesachim) concurs:

"Some have asked why we do not recite 'zeman' [a reference to the berakha of 'she-hecheyanu'] for sefirat ha-omer. Furthermore, why don't we count twice out of doubt, jut as we observe two days of Yom Tov out of doubt? The governing principle is that we need not conduct ourselves stringently regarding sefirat ha-omer, for it constitutes but a commemoration. "

According to these Rishonim, we must count the omer nowadays only as a result of rabbinic enactment - "mi-derabanan." This view is shared by the Rosh (end of Pesachim), Rashba (Responsa 3:284), Maharam Rotenberg and the Avudraham. The Ran (end of Pesachim) adopts this opinion, as well, describing this position as the prevalent view among the authorities.

THE REASONING BEHIND THE DISPUTE

The Ran provides the following explanation for his view that sefirat ha-omer nowadays constitutes a rabbinic obligation:

"Most commentators agree that nowadays, when we do not bring [the omer offering] nor offer the sacrifice, sefirat ha-omer is only a rabbinic obligation, in commemoration of the Mikdash."

In other words, the Biblical obligation of counting the omer depends upon the mitzva of waving the omer in the Mikdash on the sixteenth of Nissan. Therefore, in the absence of the Temple, the Biblical requirement no longer applies. The opposing view would contend that the mitzva to count stands independent of the obligation concerning the omer offering. At first glance, the simple reading of the verses seems to support the Ran's position: ". from the day when you bring the waving omer you shall count fifty days." How do those espousing the opposing view justify their argument in light of the verse's apparent association between the two requirements?

The Or Ha-chayim (Emor 23:15, and in his work, "Me'or Ha-chayim") addresses this issue and writes as follows:

"We do not know [at this point] if this mitzva of sefirat ha-omer applies even nowadays, in exile, because the simple understanding of the mitzva suggests that it applies only during the times of the Temple, as it says, 'You shall count. from the day when you bring.' "However, when we take a closer look at the verse we will see that [we are obligated] even nowadays. "If the Torah would have issued this command only for the times when the Bet Ha-mikdash stood, then it should have said, "From the day when you bring the waving omer you shall count. ' What is meant by 'from the day following the Shabbat' [referring to the sixteenth of Nissan]'? This appears superfluous, [stating both] 'from the day following the Shabbat' and 'from the day when you bring the omer.' Rather, the Torah reveals to us that 'You shall count for yourselves from the day following the Shabbat' while you are as yet still in exile, and 'from the day when you bring the omer' when you are in the Bet Ha-mikdash."

In other words, the Torah added the clause, "You shall count for yourselves from the day following the Shabbat" specifically to teach us that this mitzva applies even in the absence of the Bet Ha-mikdash.

THE SOURCE OF THE ARGUMENT

This debate emerges from the Gemara in Menachot (66a):

"Abayei said, there is a mitzva to count the days, and there is a mitzva to count the weeks. The Rabanan De-bei Rav Ashi [rabbis of Rav Ashi's house of study] counted both the days and the weeks. Ameimar counted the days but did not count the weeks; he said, 'It [merely] commemorates the Mikdash.'"

On the surface, it appears from the Gemara that Abayei and the Rabanan De-bei Rav Ashi view the mitzva as de-oraita even nowadays, thus requiring the counting of both days and weeks. By contrast, Ameimar considers the contemporary obligation as rabbinic in nature, allowing one to count only days, without the weeks. Accordingly, it would seem that the Rishonim who view sefirat ha-omer as a Biblical commandment nowadays adopted the view of Abayei and Rabanan De-bei Rav Ashi, whereas those who argued followed the position of Ameimar.

However, were this to be the case, we would expect the same Rishonim who view the obligation as de-rabanan nowadays to adopt as authoritative Ameimar's position concerning the counting of weeks. That is, according to these Rishonim, it would appear that nowadays one need count only the days, not the weeks, a ruling not found among the authorities.

The Ba'al Ha-ma'or (end of Pesachim) addresses this issue:

"It is only a commemoration, and this is the conclusion there in Menachot, that Ameimar counted days and not weeks, claiming that the mitzva is but a commemoration of the Temple. Although we count both days and weeks, this is a custom we have adopted."

In other words, the Ba'al Ha-ma'or indeed concludes that, strictly speaking, one need not count weeks nowadays, only we have taken upon ourselves the practice of doing so.

The Ran, however, understood otherwise. Despite his viewing sefirat ha-omer in the post-Temple period as rabbinic in nature, as stated, he nevertheless writes the following:

"Since Abayei and the Rabanan De-bei Rav Ashi counted both days and weeks, we follow their position, even though Ameimar argues with them. Most commentators agree that nowadays, when we do not bring [the omer offering] nor offer the sacrifice, sefirat ha-omer is only a rabbinic obligation, in commemoration of the Mikdash."

In other words, although we follow the view of Abayei and the Rabanan De-bei Rav Ashi, and not that of Ameimar, we nevertheless maintain that sefirat ha-omer nowadays constitutes a rabbinic obligation.

According to the Ran, we must claim that even Rabanan De-bei Rav Ashi view sefirat ha-omer nowadays as a rabbinic enactment. Nevertheless, they feel that this obligation also requires the mentioning of both days and weeks. Along the same lines, the Sha'ar Ha-tziyon (489:9; see also Bei'ur Ha-Gra 489:4 and Shulchan Arukh Ha-Rav 489:2) writes that even Rabanan De-bei Rav Ashi require the counting of weeks, given the principle that Chazal modeled their edicts after Torah law.

But how, then, can we understand the Gemara? Those who maintain that the Biblical obligation remains in force after the Temple's destruction will simply read this view into the position of Abayei and Rabanan De-bei Rav Ashi, with Ameimar representing the minority, dissenting opinion. By contrast, according to those who claim the obligation to be mi-derabanan nowadays, Abayei and Rabanan De-bei Rav Ashi may have adopted this view, only they argue that our counting must resemble that conducted during the times of the Mikdash.

Said otherwise, Ameimar's position requires two assumpt 1. We observe sefirat ha-omer today only in commemoration of the mitzva's performance in the Mikdash. 2. Given the rabbinic (as opposed to Biblical) status of the obligation, it suffices to count only the days.

The opposing view in the Gemara - that of Abayei and Rabanan De-bei Rav Ashi - argues on one of these two premises. According to the Rambam they reject the first assumption, while the other Rishonim understood the majority view as accepting the first premise and disputing the second.

THE BASIS FOR THE DISPUTE AS IT RELATES TO "ZEKHER LE-MIKDASH"

The Griz (Rav Yitzchak Zev Soloveitchik, or "the Brisker Rav," in the "stencils" on Masekhet Menachot) asked why the obligation's status as commemorative of the Beit Ha-mikdash renders the counting of weeks unnecessary. Did not Chazal model all their edicts after the corresponding Torah law?

He answers by distinguishing between two types of enactment "zekher le-mikdash," in commemoration of the Mikdash:

I. In certain instances, Chazal instituted a commemorative act in order to recall the mitzva that no longer applies on the Biblical level. They wanted to ensure familiarity with the mitzva's performance when the Mikdash is rebuilt.

II. Chazal established other laws to remind us of the Temple's destruction and the bitter reality of the consequent non-applicability of a given mitzva.

Those rabbinic decrees falling under category A must, of course, accurately resemble the original, Biblical obligation it commemorates. In instances of B, however, there is no need for the rabbinic enactment to precisely correspond to the manner in which the original mitzva was observed in the Mikdash. In fact, Chazal may have preferred to specifically ordain a somewhat different mode of performance to further underscore our distress over the loss of the Temple.

This distinction gives rise to a beautiful explanation for the view among the Rishonim, that sefirat ha-omer today applies only mi-derabanan. They would claim that the Amora'im in the Gemara debated the classification of this rabbinic enactment. According to the Rabanan De-bei Rav Ashi, this decree falls under the first category, serving to remind us of the mitzva's performance. It therefore requires the counting of both days and weeks, just as the original, Biblical obligation demands. Ameimar, on the other hand, views this rabbinic enactment as of the second type, reminding us of the painful reality of the Temple's absence. We therefore count only the days, without mentioning the weeks.

[According to the Rambam, Rabanan De-bei Rav Ashi maintain that the Biblical obligation remains in force after the Temple's destruction, and we must therefore count both days and weeks. Ameimar would argue that the obligation today is but a rabbinic decree, intended to reinforce our sense of loss over the destruction of the Mikdash.]

THE POSITION OF RABBEINU YERUCHAM

We find in the writings of the Rishonim yet a third position, that of Rabbeinu Yerucham (Netiv 5, 4; this is also the position of the Rama, recorded in Iggerot Ha-Rama), who distinguishes between the counting of days and that of weeks. The former remains a Biblical imperative even nowadays, while the latter constitutes a rabbinically ordained obligation.

At first glance, this position seems to emerge from the simple reading of Ameimar's view as recorded in the Gemara discussed above: "Ameimar counted the days but did not count the weeks; he said, 'It [the counting of weeks] commemorates the Mikdash.'"

The basis for this distinction lies in a careful reading of the Torah's formulation of this mitzva. Twice, the Torah seems to associate the requirement of counting weeks with the omer offering:

"You shall count for yourself seven weeks, from when the sickle is first put to the standing grain"; ". from the day when you bring the waving omer, they shall be seven complete weeks." Regarding the counting of days, by contrast, the Torah draws no connection to the omer: ". until the day following the seventh week you shall count fifty days."

It thus appears that the Biblical obligation to count weeks applies only when we may bring the omer offering, while the requirement concerning the days remains in force irrespective of the omer. [It stands to reason that the counting of weeks comes in association with the omer, whereas the counting of days serves as preparation for Matan Torah.]

As for the final halakha, from the Shulchan Arukh (489) it emerges that the obligation of sefirat ha-omer applies today only on the level of rabbinic enactment (Bei'ur Halakha). This ruling yields important ramifications regarding issues such as counting during "bein ha-shemashot" (twilight, a period whose status as either night or day is left undetermined by halakha), counting without specific intent, and others. However, the S.A. rules that one should optimally conduct himself stringently in this regard. This is in deference to the view among the Rishonim that considers sefirat ha-omer a Biblical imperative even nowadays (Bei'ur Halakha).

The Shulchan Arukh's ruling calls into question the text of the introductory "Hineni mukhan u-mezuman" paragraph, recited by many prior to counting the omer.

This declaration reads,

"I am hereby prepared and ready to fulfill the positive commandment of sefirat ha-omer, as it is written in the Torah. "

Given the accepted ruling, which views the obligation as rabbinic in nature nowadays, would not such a declaration, stating one's intent to fulfill a Biblical imperative, constitute a form of "bal tosif" - a forbidden addition onto the Torah? (This question becomes particularly troubling according to the Rambam's ruling at the end of the second chapter of Hilkhot Mamrim, that one violates "bal tosif" by referring to a rabbinically ordained obligation as a mitzva from the Torah!)

Accordingly, some authorities have ruled against the recitation of this text. Others suggest emending the text to read as follows: ". to fulfill the mitzva of sefirat ha-omer, and it says in the Torah. " (Rav Ovadya Yosef, Kol Sinai, Iyar-Sivan 5731, and others).

Others, however, have justified the common text of the introductory paragraph. First, given the need for intent as a prerequisite for the fulfillment of mitzvot, one who intends to fulfill only a rabbinic obligation does not satisfy the requirement according to the authorities viewing sefirat ha-omer as a Biblical imperative. Conversely, however, if one intends to fulfill a Biblical imperative, then he satisfies the requirement according to all views, even those who consider the mitzva a rabbinic obligation. Secondly, some claim, the term "mitzvat asei" (positive commandment) in this text refers to a rabbinically ordained mitzva. [According to this justification, however, one should still refrain from saying, "as it is written in the Torah," and replace it with, "and it is written in the Torah."]

FOOTNOTE:

[1] The position of the Sefer Ha-chinukh (306): The Minchat Chinukh understands the Chinukh as viewing the obligation nowadays as rabbinic in nature, as the Chinukh writes, "The mitzva of counting the omer applies on the level of Torah law in every place, to males, during the time of the Bet Ha-mikdash, when there was an omer [sacrifice]. Nowadays, when, as a result of our sins, we do not have a Bet Ha-mikdash, we count days and weeks." However, the Bei'ur Halakha (beginning of 489) lists the authorities who view sefirat ha-omer nowadays as mi-de'oraita and includes the Chinukh in this list. How could the Bei'ur Halakha have reached this conclusion regarding the Chinukh's position in light of the aforementioned citation? In his work on the Chinukh entitled "Minchat Yitzchak," Rav Yitzchak Ha-kohen Aranovsky notes that we may perhaps change the punctuation in this passage: "The mitzva of counting the omer applies on the level of Torah law in every place, to males, during the time of the Bet Ha-mikdash, when there was an omer, [and] nowadays, when, as a result of our sins, we do not have a Bet Ha-mikdash. We count days and weeks [since the mitzva applies mi-de'oraita, which requires the counting oboth days and weeks]."

Indeed, certain manuscripts of the Sefer Ha-chinukh omit the final clause of this sentence, and read as follows: "The mitzva of counting the omer applies on the level of Torah law in every place, to males" (see the Chavel edition). According to this version, the Chinukh clearly views the contemporary obligation of sefirat ha-omer as a Biblical one, as the Bei'ur Halakha assumed. As for the views taken by other Rishonim, see Bei'ur Halakha 489; the Bet Ha-levi (39) attributes this view to the Rif, as well.

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