The mishnah at the end of Orlah makes an unequivocal statement about chadash (grain from the new harvest, which may not be eaten until the omer offering is brought on the sixteenth of Nissan). According to this mishnah, “Chadash is biblically forbidden everywhere.” This means it is an issue not only in Israel, but in the Diaspora as well. The rule is derived from the verse: “Until that very day, until you have brought the offering of your G-d, you shall eat no bread or parched grain or fresh ears; it is a law for all time throughout the ages in all your settlements” (Vayikra 23:14). Clearly, this last phrase includes the Diaspora.
Even though chadash applies in the Diaspora according to this mishnah, the omer offering may not be brought from grain grown in the Diaspora (as the mishnah states in Menachot and as the Rambam rules).
This mitzva is more difficult to follow in the Diaspora, since wheat there sprouts before the sixteenth of Nissan, and might be made into flour (which is not the case in Israel). Some rabbinic leaders in the Diaspora used to roam from place to place with their own pots and pans, looking for wheat that was not chadash.
However, the mishnah in Kiddushin presents, in addition to the view cited above, a lenient view that biblically the law of chadash pertains only to the Land of Israel. According to this view, the mitzva of chadash is similar to to the offering of the omer, in that both are relevant only in the Land of Israel. Thus, we see that in Kiddushin the status of chadash in the Diaspora is disputed. One would expect that we would follow the explicit ruling in Orlah, where only one view is recorded: that chadash is forbidden everywhere. But it is not that simple. Which mishnah to follow may depend upon which tractate was written first. If the mishnah in Orlah is later than the mishnah in Kiddushin, then it seems there was a disagreement followed by an unopposed statement, so we should follow the unopposed statement. (Hence chadash would be prohibited even in the Diaspora.) However, if Orlah is earlier, then it seems the disagreement continued afterwards in Kiddushin despite categoric statement in Orlah.
We might assume that Orlah must beearlier. After all, it is part of Seder Zera’im (the first of the six orders of the Mishnah), while Kiddushin is part of Seder Nashim (the third order). But it is not that simple. There is a general principle that “The Mishnah is not in order.” This means that the order of the Mishnah’s tractates is logical, not chronological. It does not necessarily correspond to the time periods in which they were originally taught.
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