the oaths sworn by the assisting man are not credited solely to the man who sought his assistance, but are divided between the two next of kin. If they were not divided between them, but were all credited to the man who sought assistance, and he then swore the remainder of his twenty-five oaths, he must swear additional oaths until he has completed half of those remaining out of the fifty after deducting the assisting man’s oaths. This was stated by ʿAbd al-Malik, who added: unless the first man had sworn having given up hope of finding anyone to assist him and had decided to swear without assistance. In that case, no additional oaths are required of the man who sought assistance, and all the assisting man’s oaths are credited to him, without being divided between him and his fellow.

Section

If the next of kin are brothers and a grandfather, Ibn al-Qāsim said: “The grandfather is like one of the brothers with regard to waiving retaliation. Whichever of them waives it, his waiver is valid, whether he is the grandfather or one of the brothers.” He also said that the grandfather swears one-third of the oaths in cases of both intentional and accidental killing. As regards accidental killing, this is correct. In intentional killing, however, reasoning by analogy from his position would require the oaths to be divided equally among them, since he accords the grandfather the standing of one of the brothers. Ashhab held that, where there are brothers, the grandfather has no right either to demand retaliation or to waive it. According to his position, therefore, the brothers take the qasāma oaths without him. If, however, they seek the grandfather’s assistance in taking them, the oaths are divided equally among them.

Section

If those entitled to seek retaliation decline to swear, and the qasāma was warranted by the slain person’s statement or by a witness to the killing, there are three opinions:

The first is that the oaths are transferred to the defendants: the defendant swears fifty oaths, and two or more of his next of kin may swear fifty oaths on his behalf if they volunteer to do so, in which case he does not swear with them. This is Sahnūn’s narration in ʿĪsā’s transmission from Ibn al-Qāsim in al-ʿUtbiyya, and Ibn al-Qāsim’s opinion in Ibn al-Mawwāz’s book.

The second is that the oaths are transferred to the defendants, and two or more of them swear