Transcript of the Verdict of R' Shirman's Court, Part VIII

Part VII was here.

In this section, R' Shirman continues to discuss:
a) The question of whether a court may re-open and re-examine the deeds of another court, and
b) The question of whether there is any procedural reason why a non-conversion court would not be able to question a conversion performed by a conversion-specific court.


Section 13: בירור בגדרי כלל בית דין בתר בית דין לא דייקי

R’ Shirman presents the context for the principle that a beit does not examine the deeds of another beit din: Rava tells Rav Pappa and Rav Huna bereih d’Rav Yehoshua to consult him before countering a verdict of his; if he cannot justify his ruling, he will recant (Bava Batra 130b). The Shitah Mekubetzet there, citing Ra'ah and Ran, explains that Rava would recant if he had erred in a dvar mishneh, not in a matter of opinion, for the latter type of error stands.

Based on that, R’ Chaim Pilaggi ruled that even if a court is expert, a court could challenge it, despite the rule of not examining another court’s actions.

It appears, says R’ Shirman, that the rule of not re-opening a court’s case applies lechatchilah, specifically when one knows nothing bad about it. He also finds support for this idea in Radvaz 1:279 (who bases himself on the Rashba) and Chatam Sofer 6:50. The latter responsum dealt with an attempt to justify the openness to overturning a verdict in Bava Batra 130b against Rabban Gamliel’s rejection of R’ Yehoshua’s challenge in Rosh HaShanah 25a.

R’ Shirman then again cites R’ Chaim Pilaggi, to show that if a second court investigates and finds reason to contradict the first, its ruling stands.

R’ Shirman mentions that R’ Chaim Pilaggi did note an apparent contradiction in the Radvaz, for in one case Radvaz wrote as mentioned above, and in another he wrote that one court may actually revisit another court’s actions, and he didn’t mention anything about needing revelation of new facts. R’ Chaim Pilaggi resolved this by suggesting that Radvaz held that a court may, today, investigate an earlier court’s rulings. In the case where he mentioned the new court’s discovery of new facts, he did so in order to show that even if one held that a court could not revisit another court’s rulings, that would not apply if new facts were discovered.

R’ Shirman does note that the Beit Yosef cited the view of Radvaz (in Responsa Avkat Rochel) and rejected it, based on his own reading of the Rashba. However, he points out that the Beit Yosef agreed with Radvaz regarding cases in which the earlier court’s judges were not expert in the law under discussion. R’ Shirman then cites numerous others, including R’ Yisrael Meir Lau, who support the general rule that courts do not revisit the decisions of other courts, although they would support revisiting the decision of an inexpert court.

R’ Shirman concludes that the view of Radvaz is rejected, and so a court could not rely on the argument of Radvaz to justify revisiting the decisions of a municipal court.


Section 14: על בתי הדין לגיור שבימינו לא נאמר הכלל בית דין בתר בית דין לא דייקי

R’ Shirman begins by saying that, as he had said above, even if the principle that courts do not revisit the decisions of other courts remains in force, if the second court finds problems and weaknesses in the earlier ruling, that rule does not apply. Therefore, in light of the discovery of problems in mitzvah acceptance, the chazakah of the ruling is weakened and their decision may be re-examined and nullified, as seen from Rava’s declaration in Bava Batra 130b.

R’ Shirman then contends that most halachah-observant courts involved in conversion, whether in Israel or not, lack a chazakah of correct decisions and rulings – not in terms of deficient halachic knowledge, but in terms of not accurately perceiving the reality of the individual conversion case. He cites the Chazon Ish on the procedure of determining law and analyzing the circumstances in which the law is to be applied.

R’ Shirman cites his own experience, in seeing converts who never intended to accept mitzvot, but simply said they would.

Therefore, R’ Shirman argues, even the Beit Yosef, who balked at the positions of Rashba/Radvaz, would agree to apply them to conversion and say that the courts’ decisions could be re-opened for examination.

R’ Shirman then return to his earlier point, saying that even if we would say a court cannot re-open another court’s decision, we would have to accept the new court’s finding once it did re-open the decision and it did find flaws.

As far as the procedural issue cited earlier in Section 11, R’ Shirman argued again, as he did in Section 12, that the 1984 ruling (already cited in Section 10) from R’ Yaakov Kanaeivsky (the Steipler), R’ Shlomo Zalman Auerbach, R’ Shach and R’ Elyashiv, in which they warned that conversion without Torah and mitzvah acceptance is invalid even ex post facto, and should not be accepted by marriage registrars, shows that conversion certificates must still be investigated where there is a concern about the acceptance of mitzvot by the conversion candidate, or a concern about the status of the converting beit din.

We conclude with Part IX here.