Imam Ahmad was of the view that the evidence presented by the claimant—termed al-khārij (the “outsider”)—takes precedence, and that the evidence produced by the possessor, the defendant—termed al-dākhil (the “insider”)—is set aside.
Al-Rawd al-Murbiʿ and other Hanbali works state: “If each of the two parties brings evidence that the disputed property belongs to him, judgment is given in favour of the outsider on the strength of his evidence, while the insider’s evidence is disregarded, because of the ḥadīth of Ibn ʿAbbās: ‘If people were granted their claims simply by alleging, men would claim the wealth and blood of others. Rather, the oath is upon the defendant.’” [Al-Bukhari 4552; Muslim 1711] In this ḥadīth the burden of evidence is placed on the claimant, leaving the defendant with nothing but the oath.
This report is the well-known position within the Ḥanbali school and is counted among its distinctive rulings (al-mufradāt).
- The majority of scholars—including the other three Imams—hold that the evidence of the insider, the one who actually possesses the item, is to be preferred.
Shaykh al-Islam Ibn Taymiyyah said: “As for the ḥadīth, ‘The burden of proof rests upon the claimant and the oath is upon the one who denies,’ none of the scholars of the Muslim community applied it in an unrestricted manner except the scholars of Kufa, who maintain that the oath is always on the denier, even in cases of qasāmah (collective oaths for homicide). The rest of the scholars of the ummah, the jurists of ḥadīth, and others sometimes require the claimant to swear and at other times the defendant; in their view the oath is legislated for whichever side is stronger, and the term bayyinah (evidence) refers to whatever clarifies the truth.”
In Sharḥ al-Mufradāt it is stated: “Most scholars say that the defendant’s evidence is preferred in every case, because his side is stronger; the presumption is in his favour, and his oath takes precedence over the claimant’s oath.”
Shaykh Muḥammad ibn Ibrāhīm Āl al-Shaykh said: “What appears strongest to me is to give priority to the insider’s evidence, on account of the report narrated by al-Dāraqutnī (4/209) from Jābir (may Allah be pleased with him): ‘Two men brought a dispute before the Prophet ﷺ concerning a riding animal or a camel, and each of them produced…’”