If the claimant produces evidence, then the item belongs to him, even if the defendant swears an oath; his oath is not taken into consideration.

His statement: “If each of them produces evidence that it belongs to him, judgment is given in favor of the party not in possession on the basis of his evidence, and the evidence of the possessor is disregarded.” The claimant produces evidence that it belongs to him, and the defendant likewise produces evidence that it belongs to him. They say: Judgment is given on the basis of the evidence of the party not in possession, rather than that of the possessor.

The possessor is the one in whose hand the item is held, while the party not in possession is the claimant. Thus, judgment is given in favor of the claimant on the basis of his evidence, and the evidence of the possessor is disregarded. For example, Zayd claims from ‘Amr that this property in ‘Amr’s possession belongs to him. ‘Amr says, “It belongs to me,” and each of them brings evidence. Judgment is therefore given in favor of the claimant—that is, Zayd—because he is the party not in possession. This is supported by both textual evidence and reasoning.

As for the textual evidence, the Messenger, peace and blessings be upon him, assigned the evidence to the claimant’s side, saying: “The evidence is upon the claimant” (1). Since he has produced it, judgment is rendered in his favor on its basis. As for the reasoning, they say: the evidence of the party not in possession may be closer to the time when ownership was transferred, whereas the evidence of the possessor may perhaps testify on the basis of his former ownership. Transfers of ownership are frequent, and witnesses may testify that the item belonged to the possessor because it had formerly been in his possession; then he sold it to the claimant, and ownership passed to him. Thus, the claimant’s evidence is as though it carries additional knowledge, and is therefore given precedence.

Some scholars said instead: It belongs to the possessor with his oath, on the grounds that the two sets of evidence conflict and neither has greater claim to preference over the other. They therefore cancel each other out, just as when a group differs concerning the imam and some of them say: