47 – The Book of Claims

The plaintiff is the party who, if he abandons the case, cannot be compelled to continue; the defendant is the party who may be compelled to litigate.

A claim is not admitted unless the plaintiff specifies something definite as to both kind and amount. If the object in dispute is a tangible item in the defendant’s possession, the defendant must bring it to court so the plaintiff can point to it. If it is not present, the plaintiff must state its value. If he claims a piece of real estate, he must define its boundaries, state that it is in the defendant’s possession, and that he is demanding it from him. If the right is a debt, he must declare that he demands its payment.

Once the claim is properly formulated, the judge questions the defendant. If the defendant confesses, judgment is entered against him. If he denies, the judge asks the plaintiff for evidence; if the plaintiff produces it, judgment is given for him. If he cannot and instead requests that the defendant swear an oath, the defendant is required to do so.

Should the plaintiff say, “I have evidence,” yet at the same time ask that the defendant swear, the oath is not administered, according to Abū Ḥanīfa.

The oath is never redirected to the plaintiff, and the evidence of the present possessor is not accepted to prove unrestricted ownership.

If the defendant refuses to take the oath, judgment is rendered against him because of that refusal, and he becomes liable for the full amount claimed.

The judge should say to him, “I offer you the oath three times; if you swear, well and good, otherwise I shall rule against you for what has been claimed.” After repeating the offer three times, the judge rules against him for refusing.

If the claim concerns the existence of a marriage, the one who denies it is not put on oath according to Abū Ḥanīfa, and no oath is administered in matters of marriage or the resumption of marital relations after a revocable divorce.