months, so she is the claimant. If he says, “I did not swear such an oath,” we do not require him to swear. However, if he fails to fulfil the duty incumbent upon him, that entails a different ruling. It is also possible for him to be the claimant, but we say: if he states that he is one who has sworn abstention from marital relations, then he is not a claimant but one making an admission, because the right belongs to him.
Fifth: the original presumption of slavery. For example, if someone finds a foundling—a discarded child whose lineage is unknown—and says, “This person is my slave,” he is claiming an original state of slavery. The presumption, however, is that a foundling is free, whereas he now seeks to establish that he is enslaved. We say: this is not possible; the presumption is freedom. Thus, if he claims that this person is his slave, and the person says, “I am not his slave; I still know myself to be a foundling,” then he is free and is not required to swear an oath.
But if he is an owned slave whose enslaved status has already been established, and someone claims that he owns him while the slave’s master denies this, then the denying party must swear an oath, and the slave remains his. This is because the dispute here is not over the original status of slavery: his enslaved status is established, but the disagreement concerns who his owner is—whether it is this person or that person.
Sixth: walāʾ (the bond of manumission)—that is, the original basis of walāʾ, since walāʾ derives from slavery. If someone claims concerning a person known to be free, who has never been owned by anyone, “His bond of manumission belongs to me,” he is asked, “How did this come about?” He replies, “Because my grandfather freed his grandfather.” The defendant then says, “Never! I am free, and no one has any bond of manumission over me.” If there is no evidence, he is not required to swear an oath.
Seventh: istīlād—that is, the claim that a man’s slave woman bore him a child. Who is the claimant: the master or the slave woman? Shaykh al-Islam says that she is the claimant, while Qadi Abu Ya‘la says that he is the claimant. In fact, the claim may be made—