and conduct—as when a poor person takes the initiative in giving a gift to a rich person without any particular occasion for doing so. His conduct indicates that he intended to receive recompense from him. He is therefore entitled to recompense if he claims it, without having to swear an oath.
Section
As for the fifth category—where it is unclear whether the donor intended his gift merely to foster affection without recompense, or intended both purposes together—this includes gifts exchanged between wealthy peers and equals, whether unrelated or relatives. Concerning this category, al-Mudawwana states that the donor’s account is accepted, without specifying whether he must swear an oath. The scholars differed in interpreting this: some understood it to mean that he must swear, while others understood that no oath is required. My own view is that this falls into three cases:
First: he says, “I intended recompense, but did not stipulate it.”
Second: he says, “I stipulated recompense to the recipient,” and the recipient says, “You stipulated nothing to me.”
Third: the donor says, “I stipulated recompense from you,” and the recipient says, “Rather, you explicitly stated that I owed you no recompense.”
If he says, “I intended recompense, but did not stipulate it,” the ruling follows the disagreement concerning an oath based on suspicion: whether it is required in the absence of a definite claim.
If he says, “I stipulated recompense to the recipient,” and the recipient says, “You stipulated nothing to me,” then, according to the opinion requiring the donor to swear an oath in cases of suspicion, he is not required to swear until the recipient has sworn that the donor did not stipulate recompense to him. If the recipient refuses to swear, the donor is not required to swear and is entitled to recompense without an oath. According to the opinion that no oath is required of the donor in cases of suspicion, he does not swear under any circumstances.
But if he says, “I stipulated recompense from you,” and the recipient says, “Rather, you made it clear that no recompense