I have referred the oath back to you. Swear yourself and be cleared of the claim.” If the defendant then says, “I will not swear,” and refuses the oath, the claimant does not become entitled to what he declined to swear to, even though he would have been entitled to it had he sworn, because the oath he declined was not binding upon him. All the more, then, in our case, a party’s refusal cannot establish his entitlement to what he declined to swear to when the other party also refuses: the oath he declined was not binding upon him, and even had he sworn, it would not have established his entitlement. This is clear.

Section

If we understand Ibn Habīb’s position to mean that the seller’s account is accepted upon his oath, this is more compelling than Ibn al-Qāsim’s opinion. For when the seller initially refuses to swear and the buyer subsequently refuses, the seller may argue: “I will swear that I sold my goods for such-and-such a price. In this respect, I am making a claim against the buyer. Since he has refused to swear, I am entitled to swear and recover what I claim, according to the rules governing claimant and defendant. Had I been entitled to swear and obtain what I swore to, I would not have refused the oath.” On this understanding, if the seller refuses to swear after the buyer’s refusal, the buyer swears and takes the goods for the price to which he swears.

All this is clear. In the example, the seller claims against the buyer that he purchased the goods for ten. When the buyer refuses to swear, it falls to the seller to swear and establish his entitlement to the ten. The buyer, in turn, claims against the seller that he sold the goods for eight. When the seller refuses to swear, it falls to the buyer to swear and establish his entitlement to the goods for eight.

Likewise, on this understanding, if the parties to a hire contract disagree over the amount or kind of payment, the journey as a whole, or its endpoint, and both refuse to swear, the owner’s account is accepted upon his oath. If he refuses to swear, the hirer’s account is accepted upon his oath, except when their disagreement concerns the journey as a whole. In that case, it follows from this reasoning that, if each refuses to swear an oath denying the other’s account, each swears to his own claim and establishes his corresponding right against the other. The hirer is therefore obliged to travel with the owner to the town specified in the owner’s oath, and the owner is likewise obliged to travel with the hirer to the town specified in the hirer’s oath.

If someone were to say that Ibn al-Qāsim’s statement, “If both refuse to swear, each returns what he received,” means that each party refuses the oath both before and after the other party’s refusal, declining to swear altogether, I would reply: “Your interpretation is not far-fetched, and you have expressed a view