its owner; otherwise, you may do as you wish with it,” there is evidence that lost property is to be handed over to someone who describes it, even if he has no witnesses to establish his claim. This is the position of Mālik, may Allah have mercy on him, and all our scholars, without disagreement among them. It differs from the position of al-Shāfiʿī and Abū Hanīfa, who hold that it is not to be handed over to the person describing it until he produces witnesses to establish his claim—a far-fetched view. Hammād ibn Salama, al-Thawrī, and Mālik also narrated this hadith, including the additional words: “If its owner comes and identifies its container and the cord tying it, hand it over to him; otherwise, you may do as you wish with it.” This is an explicit statement on the very point in dispute.

Mālik’s followers disagreed only as to whether it should be handed over to him with or without an oath. The apparent position of Ibn al-Qāsim in al-Mudawwana is that it is handed over without an oath, and that describing lost property for which there is no opposing claimant is equivalent to conclusive evidence concerning property whose ownership someone contests. Ashhab said that it should be handed over only upon an oath.

Ibn Habīb’s statements on this matter are inconsistent. He said that it should be handed over only upon an oath. He also said that if two men describe it, both are required to swear. If one swears and the other refuses, it belongs to the one who swears. If both refuse or both swear, it is divided between them.

His statement that it is divided between them when both refuse to swear contradicts his initial statement. Their refusal to take the oaths is tantamount to their mutual consent, unless one requires the other to swear. If they consent to that, consistency with his position would require that it not be divided between them until each swears that it belongs to him, so that his oath establishes his ownership to the exclusion of anyone else who is neither present nor claiming it. Had they not agreed that each would waive the oath required of the other, each would have been required to swear that it belonged to him, so that his oath would establish his ownership to the exclusion both of this other claimant and of everyone else.

Understand this, and know that each man’s oath that it belongs to him serves two purposes. If the oath ceases to be required of them for one purpose because both refuse to swear and agree to waive it, it does not cease to be required for the other purpose. According to the position that does not require an oath from a lone claimant who describes the property, when two claimants both describe it, each must swear that it belongs to him, so that his oath establishes his ownership to the exclusion of the other claimant,