whereas the Mālikī jurists consider it a form of luwath (circumstantial evidence) that entitles the heirs to take the oath, whereupon the right to shed blood is established.

17 – He also said: The Prophet’s statement, “and the oath rests upon the defendant,” shows that whenever a claim is brought against someone and he denies it, the oath is required of him. This is the position held by the majority of the jurists.

Mālik maintained that the oath is only imposed on the denier when there is some prior dealing or interaction between the two litigants, lest insolent people should harass those of high standing by persistently demanding their oaths.

Shaykh al-Islām related: “We were in the presence of the deputy of the Sultan, and I was seated beside him. One of those in attendance alleged that he had deposited something with me for safekeeping and demanded that I sit with him and swear an oath. I turned to the Mālikī judge who was present and asked, ‘Is such a claim admissible and to be heard?’ He replied, ‘No.’ I then said, ‘What is your school’s ruling in a case like this?’ He answered, ‘To discipline (taʿzīr) the claimant.’ I responded, ‘Then judge according to your school.’ The claimant was made to stand and was escorted out.”

18 – Shaykh ʿAbd al-Raḥmān al-Saʿdī, may Allah have mercy on him, said: “The bayyina is upon the claimant, and the oath upon the one who denies.” What an eloquent and comprehensive maxim this is! It gathers together every situation and detail relating to people’s rights; it is a fundamental principle that resolves all problems.

Several cases fall under this rule:

1. Someone claims a right over another, and the defendant denies it.
2. A debt or obligation is proven, then the debtor claims release while the creditor denies it.
3. An item is in a person’s possession, another claims it as his, and the possessor denies the claim.
4. Both parties agree that a contract exists, but one of them alleges that it is defective because a condition is missing or the like, while the other denies that allegation; the word of the one claiming soundness prevails.
5. One party asserts the existence of a condition, a defect, a time-limit, or the like, and the other denies it; the statement of the denier prevails.

And many other situations are likewise governed by this overarching rule.