the kinds of payment. According to Muhammad ibn ‘Abd al-Hakam’s position, the owner may compel the hirer to ride to the town he specified if their disagreement concerns the journey as a whole, and to ride for the kind of payment he specified if their disagreement concerns the kinds of payment.

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There is also disagreement over the case in which both parties refuse to swear. Ibn al-Qāsim held that their joint refusal is treated in the same way as their both taking the oath. This is also Shurayh’s opinion in the Book of Options in al-Mudawwana: “If both swear, each returns what he received; and if both refuse to swear, each returns what he received.” Ibn Habīb held that if both refuse to swear, the seller’s account is accepted. He also related a similar opinion from Mālik concerning the case of an agent. The report from him is stated in these general terms, without further explanation. Some scholars understood it to mean that the seller’s account is accepted after he swears.

The reasoning behind this view is that the oath he refused to take consists only of his saying: “I did not hire it out as far as such-and-such a place, nor did I hire it out for such-and-such a payment.” As for the additional affirmation in his oath, “I did indeed hire it out as far as such-and-such a place, and I did indeed hire it out for such-and-such a payment,” he has not refused to swear to this, since he was neither obliged nor required to do so. Rather, he volunteered to swear to it in the hope that the other party would refuse to take the oath, as we explained earlier. Thus, no account should be taken of his refusal to swear an oath that was not binding upon him and that would not establish his entitlement to what he swore to.

The account of someone who refuses an oath, refers it to the other party, and finds that the other party also refuses it can only be accepted if the oath was binding upon him and, had he sworn it, would have established his entitlement to what he swore to. An example is someone who produces one witness in support of his claim but refuses to swear, then refers the oath to the defendant, who also refuses to swear. The claimant then receives what he claimed without taking an oath, because, had he sworn, his oath would have entitled him to what he claimed. Another example is someone entitled to require an oath from the defendant: the defendant refuses to swear and refers the oath to the claimant, who also refuses. The claim against the defendant is then dismissed without his taking an oath, because, had he sworn, his obligation to swear would have been discharged.

By contrast, someone who refuses an oath that was not binding upon him does not, through that refusal, establish his entitlement to the matter he declined to swear to merely because the other party also refuses. The underlying case is that of someone who brings a claim against another man, and the defendant says to the claimant: “I will accept your oath as sufficient: swear and take what you claim.” The claimant replies: “I will not swear;