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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