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Menachos, 66

1) COUNTING THE DAYS AND WEEKS OF THE "OMER"

OPINIONS: Abaye and Ameimar argue about how to count the Omer. Abaye says that it is a Mitzvah to count both the number of weeks and the number of days. This was the practice of the Chachamim of the Beis Midrash of Rav Ashi. Ameimar argues and says that only the days need to be counted. He explains his practice by saying that counting the Omer, in the absence of the Beis ha'Mikdash, is merely a remembrance for the Beis ha'Mikdash.

What is the underlying point of dispute between Abaye and Ameimar?

(a) The RAMBAM (Hilchos Temidin u'Musafin 7:24) writes that it is a Mitzvah to count the Omer "in every place and at all times." Since the Rambam writes that it applies "at all times," this implies that the Rambam maintains holds that it is a Mitzvah d'Oraisa to count the Omer even when there is no Beis ha'Mikdash. What is the source for the Rambam's view?

1. The KESEF MISHNEH and MAHARI KURKAS explain that the Rambam understands that the argument between Abaye and Ameimar is whether or not the Mitzvah of Sefiras ha'Omer in our day is a Torah obligation. Abaye maintains that it is a Torah obligation, and, therefore, one must mention both the weeks and the days. Ameimar maintains that the Mitzvah in our day is only mid'Rabanan, an enactment made as a remembrance for the Mitzvah d'Oraisa that applies when the Beis ha'Mikdash is standing, and therefore only the days need to be counted. The Rambam rules like Rav Ashi, and therefore he says that this Mitzvah applies "at all times," meaning whether or not there is a Beis ha'Mikdash.

2. RAV CHAIM SOLOVEITCHIK (Chidushei ha'Shas, #343) explains that the Rambam understands that both Abaye and Ameimar maintain that Sefiras ha'Omer is mid'Rabanan, because they maintain that the Kedushah of the Beis ha'Mikdash became annulled when the Beis ha'Mikdash was destroyed (see Megilah 10a). However, the Rambam himself rules that the Kedushah endures even today. Although we do not bring Korbanos today for other reasons (see Insights to Shavuos 16:1), the Mitzvah of Sefiras ha'Omer is mid'Oraisa since the Kedushah still exists. Therefore, the Rambam rules that the Mitzvah today is a Torah obligation and applies "at all times."

(b) TOSFOS (DH Zecher) and the RAN in Pesachim (28a of the pages of the Rif) rule that the Mitzvah of Sefiras ha'Omer today is mid'Rabanan (this is the way the TUR and SHULCHAN ARUCH (OC 489) rule). They understand that this is the view of all of the Amora'im in our Gemara as well. The argument between Abaye and Ameimar is whether we should count only the days because the Mitzvah is only mid'Rabanan, or whether we should do the Mitzvah as it was done when it was a Torah obligation.

(c) RABEINU YERUCHAM (Nesiv Chamishi #4) writes that the Mitzvah of Sefiras ha'Omer today is mid'Oraisa, and that this is the view of all of the Amora'im in our Gemara. He explains that when Ameimar says that the Mitzvah is only a "remembrance" of the Beis ha'Mikdash, he means that when the Beis ha'Mikdash was standing, the Mitzvah d'Oraisa was to count the days and the weeks, and when the Beis ha'Mikdash is not standing, the Mitzvah d'Oraisa is to count only the days.

The OR SAME'ACH (Hilchos Temidin u'Musafin 7:22) says that this view is also found in the IGROS HA'RAMAH. He explains that the Torah attaches the Mitzvah of counting weeks to the bringing of the Omer offering when it says, "me'Hachel Chermesh ba'Kamah Tachel Lispor Shiv'ah Shavu'os" -- "Begin to number the seven weeks from such time as you begin to put the sickle to the grain" (Devarim 16:9). However, the Mitzvah to count the days is not conditional on the bringing of the Omer offering. (Y. Montrose)

66b

OPINIONS: The Gemara discusses whether or not a Nochri who piles grain or smoothes a pile of grain (thereby performing the final action of harvesting the grain, which normally makes the grain subject to the obligation to separate Ma'aser; see RASHI DH Miru'ach) exempts the pile of grain from Ma'aser. The Gemara says that this is the subject of an argument among the Tana'im.

In what case does the argument apply? Is the Gemara referring to a case in which a Nochri is piling his own grain, or even to a case in which he piles the grain of a Jew?

(a) RABEINU GERSHOM states that the case is when "a Nochri had a heap of grain and he smoothed over the grain," implying that the Nochri is smoothing over his own grain. When the grain is that of a Jew, the harvest is still obligated in Ma'aser according to Torah law. This is also the opinion of the RITVA and ME'IRI in Gitin (47a), as well as many other Rishonim.

(b) The RAMBAM (Hilchos Terumos 1:13) rules that if a Nochri finishes the harvest of a Jew's grain, it is exempt from Ma'aser according to Torah law (although it might be Chayav mid'Rabanan). The KESEF MISHNEH writes in the name of the MAHARI KURKAS that the source for the Rambam's statement is the verse, "Degancha" -- "your grain" (Devarim 18:4), from which our Gemara derives that only the grain of a Jew is Chayav and not the grain of Nochrim. The Rambam learns that this includes grain that Nochrim "finished." This is also the opinion of the SHITAH MEKUBETZES (67a, #1), TOSFOS RID in Gitin (47a), and others.

Rabeinu Gershom's opinion would seem to be the simple explanation. How does the Rambam know that our Gemara is referring even to a case in which the Nochri "finishes" the produce of a Jew?

The KEREN ORAH explains that the Rambam learns this way because he rules that grain that is bought from a Nochri after it has been finished is exempt from Ma'aser, since it is "Laku'ach" (purchased grain). Once we know that grain bought from a Nochri is exempt from Ma'aser, why do we need a special verse of "Degancha" to teach that grain finished in his possession is exempt from Ma'aser? It must be that the case of a Nochri who smoothes a pile of grain is referring to a case in which he smoothes the grain of a Jew. The verse is teaching that even in such a case, when the grain belongs to a Jew, it is exempt from Ma'aser according to Torah law.

The Keren Orah, however, asks that this does not seem to be the intention of our Gemara. The Gemara later (67a) equates a Nochri's separating of Chalah from dough to his act of finishing the grain. No one states that when a Nochri kneads the dough of a Jew, the dough is exempt from Chalah. The SHULCHAN ARUCH (YD 330:1) rules that there is no Halachic relevance to who kneads the dough. Rather, the obligation of Chalah depends on who owns the dough. The Keren Orah also questions the Rambam's view from the Gemara earlier that discusses Miru'ach of Hekdesh, which obviously refers to grain that is in the possession of Hekdesh. Accordingly, "Miru'ach Oved Kochavim" should also refer to grain that is owned by a Nochri.

HALACHAH: The opinion of the Rambam seems to present a problem for the practice of separating Ma'aser from produce in Eretz Yisrael today. According to the Rambam, we would have to be very careful to ensure that that produce "finished" by Nochri workers (which is not obligated in Ma'aser) is not used as Ma'aser for produce "finished" by Jewish workers (which is obligated in Ma'aser). The DERECH EMUNAH (Hilchos Terumos 1:149) quotes the CHAZON ISH who says that because Terumah today is only mid'Rabanan, we may rely on the opinion of the Rishonim who argue with the Rambam's ruling that all Jewish-owned produce is obligated in Terumah and Ma'aser, even if the produce was "finished" by Nochri workers. (Y. Montrose)