already paid him this one hundred. If that is possible, then whenever such a possibility exists, the inference is invalidated. The testimony is truthful regarding what the witnesses testified to, but the possibility that he has paid the debt remains. Therefore, judgment must be deferred until we examine what evidence he has.
In reality, both views have a valid basis. What I consider preferable in this issue is that it be left to the judge’s discretion. The judge may find circumstantial evidence requiring judgment against the absent party: the claimant may be a trustworthy and upright man, one who could not possibly claim what is not his, whereas the defendant may be otherwise. Thus, if he has indications establishing the validity of the claimant’s case, let him rule accordingly. But if he has no such indications, then he must refrain from ruling until he examines the opponent’s proof, for it is possible that he has already paid him.
If you say: We need an answer concerning the hadith of Hind bint Utbah, may Allah be pleased with her. The answer is very simple: it may be said that the Messenger of Allah, may Allah’s peace and blessings be upon him, gave her a legal verdict; he did not issue a judgment in her favour. A fatwa differs from a judicial ruling. The following demonstrates that this was not a judgment:
First: the Messenger of Allah, may Allah’s peace and blessings be upon him, did not require her to produce evidence. Had it been a judicial ruling, he would have required evidence from her, because the burden of proof rests upon the claimant. Since he did not require it, it is known that he gave her a fatwa on the basis of her statement.
Second: this occurred in Mecca, and Abu Sufyan, may Allah be pleased with him, was present in Mecca and was not in hiding. Had it been a judicial ruling, the Prophet, may Allah’s peace and blessings be upon him, would have summoned him. Al-Nawawi, may Allah have mercy on him, gave this answer, and it is sound.
Nor may it be said: Perhaps the Messenger of Allah, may Allah’s peace and blessings be upon him, ruled on the basis of his own knowledge in Abu