Too Early To Count?

There is a well-known Machlokes Rishonim as to whether the Mitzva of Sefiras haOmer is d’Oraisa or d’Rabbanan today, hinging on whether Sefira is dependent on the harvesting of the Korban haOmer that can no longer be performed. The Rambam holds that Sefiras haOmer is mid’Oraisa.^[1] However, there is some debate about the opinion of the Sefer haChinuch. According to the Minchas Chinuch (Mitzva 306), the Chinuch holds that it is a Mitzva d’Rabbanan. According to the Biur Halacha (Siman 489), the Chinuch concurs with the Rambam (as he usually does). The majority of the other Rishonim hold that the Mitzva is d’Rabbanan.

The Biur Halacha (ibid.) summarizes:

Indeed, the opinion of the Tur, Shulchan Aruch, and several Poskim is that [counting the Omer today] is only a Zecher l’Mikdash, [commemorating the time] when the Omer was brought. This is also the general view of the Poskim in this Siman. But truthfully, the Rambam is not alone in this view. Rabbenu Yeshaya also concurs (see Shibolei haLeket at the beginning of Siman 234), as does Rabbenu Binyamin (see there at the end of the Siman), and the Ra’avya as cited in the Or Zarua (329). It [also] seems [that] the Or Zarua agrees with him.

The Biur Halacha also cites the views of R’ Yehudai Gaon, R’ Amram Gaon, and the Ritz Ge’us, who also seem to agree with the Rambam, and concludes:

Considering the above, there is significant support for our custom to wait until after nightfall to count, since it is a Torah obligation according to several authorities. I later found something similar in the Elya Raba, although he does not cite all the great authorities mentioned.

In other words, since Sefiras haOmer should only be fulfilled at night, and it is a Mitzva d’Oraisa according to many Poskim, we should be stringent and not count Sefira during Bein haShemashos when it is questionable whether night has begun. (Only according to those who hold that it is a d’Rabbanan can one be lenient during Bein haShemashos based on the rule of Safek d’Rabbanan l’Kula.)

All of this applies in ordinary circumstances. However, there are situations where this practice poses a problem. For example, people regularly daven Ma’ariv before nightfall in nursing homes due to various logistical issues related to the routine of the elderly residents. Although efforts are sometimes made to adjust the times so that they can Daven later, this is not always feasible. Often, they finish Ma’ariv before nightfall. In these cases, it is not always practical to instruct them to wait until nightfall or to delay Ma’ariv with a Shiur or other activity. In a regular Minyan, it may be possible to skip Sefiras haOmer and advise people to count later at home; however, in a nursing home, there is a significant risk that many individuals may forget to count altogether.

The question is especially pertinent to the Chazan, as (many in) the Tzibur may be fulfilling their obligation through his counting utilizing the mechanism of “Shome’a k’Oneh”. The Biur Halacha rules that a person should ideally count Sefira himself, though Bedieved he can fulfill his obligation through Shome’a k’Oneh. (This is a Machlokes Acharonim; The Levush and Chok Yaakov disagree with the Pri Chadash as to whether Shome’a k’Oneh is effective for Sefiras haOmer. In nursing homes, many fulfill the Mitzva by listening to the Chazan. Therefore, even if the Chazan will remember to count again later at night, he must count during Ma’ariv to be Motzi those who are relying on him.

The Shulchan Aruch rules (489:3):

One who davens with the congregation while it is still day counts with them without a Bracha, and if he remembers at night, he counts [again] with a Bracha.

There are two main interpretations of this Halacha:

• Some (the Levush and others) contend that it refers to davening Ma’ariv even from as early as Plag haMincha. Since the Tzibur has already davened Ma’ariv, we may consider it as if night has fallen, since, after all, the Mitzva today is only a Zecher.
• Others (including the Taz and Gra) say it refers only to Bein haShemashos. Since Sefiras haOmer is only a Mitzva d’Rabbanan, one may be lenient during Bein haShemashos.

Therefore, if it is already after Shekia and a person is concerned he will forget to count later that evening, the Mishna Berura (16) offers a solution: Count during Bein haShemashos without a Bracha, and make a condition: “If I remember to count later, I do not intend to fulfill my obligation now.” Then, later that night, if he remembers to count again, he should do so with a Bracha. However, a Chazan who cannot delay the Tzibur until nightfall should count during Bein haShemashos with a Bracha and repeat the count later at night without a Bracha.

If it is still before Shekia, may one rely on the lenient opinions that interpret the Shulchan Aruch as referring to Plag haMincha? R’ Shmuel Wosner zt”l discusses this question (Shevet haLevi 9:123):

In Siman 489:3, the Poskim disagree as to whether the Shulchan Aruch’s words “while it is still day” refer to Bein haShemashos or to Plag haMincha, as the Biur Halacha discusses. The truth is that the Rashba (Shu”t 1:235) is clearly displeased with the practice [of counting after Plag haMincha], however, he also explains that those who are lenient rely on the fact that after Plag haMincha it can be considered night for certain purposes (such as Ma’ariv). See Orach Chaim 692:4 regarding reading the Megila where the Terumas haDeshen – the “Avi haPoskim” – permitted early reading since Plag haMincha is considered nightfall, and Siman 672 regarding Neros Chanuka, even though that case is quite similar to Sefiras haOmer as he lights two candles [representing] the second night when it is still day one. All of this demonstrates that there was such a custom in cases of pressing need. Fundamentally, in all these cases it is considered the next day after Plag haMincha as explained in the Rashba, Brachos 51b (see further below, Siman 144). Indeed, one may recite Havdala on wine on Shabbos before nightfall even though it is still Shabbos. Therefore, one who permits it for frail, elderly people – even with a Bracha – should not be questioned, as there is no greater case of necessity. Although this is not the ideal approach of Talmidei Chachamim, one should not protest it. It is good to count again later without a Bracha, and, if they forget, Hashem will not withhold their reward, especially since the counting today is only a Zecher l’Mikdash.

In contrast, R’ Elyashiv zt”l (Kovetz Teshuvos 3:84) seems to disallow counting before Sh’kia. However, it is unclear whether he also meant to rule strictly in pressing cases (such as in nursing homes) or only in the specific case he was addressing. Further clarification of his opinion is necessary.

[1] [Editor’s note: See Hilchos T’midin uMusafin 7:22 and Kesef Mishna there.]