The apparent meaning of the author’s words is that the oath is not referred back to the claimant; rather, judgment is rendered for the claimant merely upon the defendant’s refusal to swear. For example, Zayd claims one hundred riyals from ʿAmr. Zayd is told, “Produce evidence,” and he replies, “I have no evidence.” He then requests that the denier—namely, ʿAmr—be made to swear, but ʿAmr says, “I will not swear.” The apparent meaning of the author’s words is that judgment is rendered against him, and we do not say to Zayd, the claimant, “Swear that he owes you such-and-such.” This is because the Messenger of Allah ﷺ said: “Proof is upon the claimant, and the oath is upon the one who denies.” (1) Thus, he assigned nothing to the claimant’s side other than evidence, and assigned the oath to the denier’s side. Therefore, the oath is not referred back to the claimant. For if we were to say to the claimant, “Swear,” he might say, “I will not swear. All that is required of me is evidence, and I have no evidence. My evidence is this man’s refusal to swear.” This is the well-known position of the madhhab.
The second view is that the oath is referred back to the claimant, because when the defendant refuses to swear, the claimant’s position becomes stronger. If the claimant is truthful in his claim, swearing will not harm him; but if he is lying, he may be intimidated by the oath and decline to swear. According to the view that the oath is referred back, if the claimant refuses to swear, we say: Then you have no claim. What makes you unwilling to swear when you are in the right? Had you truly been in the right, you would have sworn, for swearing to the truth causes no harm.
The third view is one of distinction: if the claimant has knowledge of the matter whereas the defendant does not, the oath is referred back to him; but if the reverse is the case, the oath is not referred back to him. For example, if a man comes to the heirs of a deceased person and says, “I claim one thousand riyals from your deceased relative,” then the one thousand riyals would be taken from the estate, and if