is that of the owner. The evidence is the Prophet’s saying, peace and blessings be upon him: “The burden of proof is upon the claimant, and the oath is upon the one who denies.” The two parties agree that the usurped property was in the usurper’s possession; then the usurper claims that he returned it. So we say: You must produce proof; otherwise, the owner swears an oath, and judgment is given in his favor concerning it. This is based on the textual evidence.

As for the reasoning, we say: the presumption is that it was not returned. Since the usurper has acknowledged that it was in his possession and that he usurped it, the presumption is that it was not returned. This is analogous to the Prophet’s saying, peace and blessings be upon him: “If one of you feels something in his stomach and is unsure whether anything has come out of him or not, let him not leave the mosque until he hears a sound or finds an odor.” (1) This hadith establishes the principle of treating matters as remaining upon their previous state.

His statement, “and its being free of defects,” means that if someone usurps a sheep and it perishes, and he wishes to compensate for it according to its value, but he—that is, the usurper—says, “It was defective: it limped, and its limp was evident,” while the owner says, “Rather, it was sound,” and it is known that a sound animal is more valuable than a defective one—then two presumptions conflict. The first presumption is soundness. If we apply this presumption, we say that the owner’s word is accepted, because the presumption is soundness and the absence of defects. The second presumption is liability, because if we say that it was sound, the usurper will be required to pay more than he has acknowledged. For if it were defective, he would owe, for example, eighty riyals, whereas if it were sound, he would owe one hundred. His liability has now increased, and the presumption is that the word of one who is liable is accepted.