In my view, this position is the stronger one, although I have not come across anyone who has held it. Yet since it is a nuanced view that adopts, in one respect, the position of those who hold that the oath may be referred back, and in another respect the position of those who do not, it incorporates part of the view of each side.

Nor does it contradict the view of Shaykh al-Islam Ibn Taymiyyah, may Allah have mercy on him. For in reality, when the claimant has full knowledge of the matter whereas the defendant does not, it is more likely that the oath should be referred back to the claimant. This is because the defendant has only declined to swear out of scrupulousness, while the claimant is able to have full knowledge of the matter. So why should the oath not be referred back to him?

This issue thus contains four views:

The first is that the oath is never referred back; this is the established position of the madhhab.

The second is that it is always referred back; this is another view within the madhhab.

The third is that it is referred back to the one who has full knowledge of the matter, rather than to one who does not; this was the view preferred by Shaykh al-Islam.

The fourth is the possibility that the matter should be left to the judge’s legal reasoning: if he considers it appropriate to refer the oath back to the claimant, he does so; otherwise, he does not.

His statement, “If the defendant swears and then the claimant produces evidence, judgment is rendered on the basis of it,” means that after the defendant has sworn before the judge and has been released, the claimant comes to the judge with evidence and says, “I have found two accredited witnesses.” The judge then rules on the basis of the evidence, because the purpose of the oath is to end the dispute, such that the claimant does not pursue the defendant. It does not completely absolve a person, whereas evidence establishes the right. Hence, the author says: