“And the oath does not remove the right.” Thus, the oath does not eliminate the right; it merely brings the dispute to an end.
The apparent meaning of the author’s words is that if the claimant says, “I have no evidence,” and we then administer the oath to his opponent, who swears it, but evidence is subsequently produced, it is accepted. This view adopted by the author is the correct one in this issue. The madhhab, however, maintains that the evidence is not accepted, because the claimant himself has declared it false: he said, “I have no evidence.” So, if you have no evidence, how has this evidence now appeared?! You are the first to testify to its falsehood; so how can you make a claim on the basis of what you testify is false?! This is their reasoning, but it is weak.
Those who follow the view adopted by the author—which is the second view in the issue—say that the claimant’s statement, “I have no evidence,” may have reflected what he believed at the time: he may have had evidence of which he was unaware; or he may have had evidence but forgotten it; or he may have had evidence which he thought had died. Thus, his saying, “I have no evidence,” and then later producing evidence does not entail declaring that evidence false in any way. There is neither a rational nor a legal necessity for such an implication.
Moreover, even if we concede and say that this explanation—namely, the possibility of forgetfulness or death—is merely a possibility, does an ordinary person distinguish between saying, “I have no evidence,” and saying, “As far as I know, I have no evidence”?
Never. An ordinary person does not make such a distinction. If he were asked, “Did you not divorce your wife?” and replied, “Yes,” she would be divorced; whereas if he were a linguist, she would not be divorced, because he understands “yes” here in the sense of “rather, no.” In reality, then, an ordinary person does not distinguish between saying, “I have no evidence,” and saying, “As far as I know, I have no evidence”—unless the claimant is a man