Book of Claims and Evidentiary Proofs

A lawsuit must be brought before a judge whenever the matter entails a penal sanction, such as qiṣāṣ (retaliatory killing) or the ḥadd for slander (qadhf). If a person is entitled to a particular object, he may recover it himself provided he does not fear public discord; otherwise he must take the case to court.

When the claim is a debt owed by someone who is not withholding payment, the creditor merely demands it, and it is unlawful for him to seize any of the debtor’s property. Nor, if the debtor denies the claim and the creditor has no proof, may he take from the debtor an article of the same kind as the debt, or—according to the authoritative view—an article of a different kind if the former is unavailable. If, however, the debtor admits the debt yet refuses to pay, or denies it while the creditor possesses evidence, the same ruling applies—that is, he may take property equal to his due; another opinion insists that he must still resort to a judge.

Whenever self-help is allowed, he may even break a door or breach a wall when the property cannot be reached otherwise. Anything he seizes that is of the same genus as his right becomes his own; if it is of a different genus, he must sell it—though another opinion requires him to place it before a judge for sale. According to the sound view, whatever he has taken remains at his risk; if it perishes before he acquires ownership or sells it, he must make it good. He may not seize more than what he is owed if he can confine himself to the exact amount, and he may collect his due from property that is owed to his debtor by a third party.

The stronger opinion defines the claimant (muddaʿī) as the one whose assertion departs from the apparent state of affairs, and the defendant (muddaʿā ʿalayh) as the one whose statement accords with it. Thus, if a married couple embrace Islam before consummation and the husband says, “We converted together, so the marriage remains,” while the wife says, “We converted successively,” he is deemed the claimant.

When someone claims a sum of coined money, he must specify its genus, subtype, amount, and whether the coins are whole or clipped if that affects their value. If he claims a determinate fungible item, such as an animal, he must describe it with the detail required in a salam (prepaid purchase) contract. Another view obliges him also to state its market value, and—if the item has perished and is one that is assessed in value—he must mention that value.

In a suit concerning a marriage contract, mere generality is insufficient according to the sound view; he must say: “I married her with the consent of a competent guardian, in the presence of two upright witnesses, and with her approval” when that approval is a condition. If the bride is a slave-girl, the sounder opinion further requires him to state that he was unable to afford a free woman and feared falling into sin. For financial contracts such as a sale or a gift, however, a bare claim is sufficient.