that strikes a middle course, removing the objection to Ibn al-Qāsim’s position and reconciling it with Ibn Habīb’s. Reconciling the transmitted opinions wherever possible is preferable to construing them as contradictory, especially when taking their apparent disagreement at face value exposes one of the two opinions to an objection, as in our present case.”

Anyone who takes Ibn Habīb’s statement at face value—that the seller’s account is accepted without an oath when both parties refuse to swear—must regard his position as equivalent to that of the Iraqi jurists, who adjudicate on the basis of refusal to swear without referring the oath back to the other party. He cannot reconcile Ibn Habīb’s position with Ibn al-Qāsim’s. The first interpretation is therefore more evident. Allah knows best.

Section

There is disagreement concerning a sale in which the goods are still available and one party gives a more plausible account than the other: must they both swear oaths and rescind the sale, or is the account of the party whose claim is more plausible accepted? The well-known position of the school, and the sound opinion, is that both swear oaths and rescind the sale, without regard to which account is more plausible. Ibn Wahb held that the account of the party whose claim is plausible is accepted. Ibn Habīb also adopted this position in some cases, including when one party alleges a lawful transaction and the other an unlawful one, and when they disagree over the nature of the currency.

Ibn al-Qāsim likewise adopted this position in the transmission of Īsā concerning hire, where the owner says, “I hired it out to you for a journey to Medina,” while the hirer says, “I hired it from you for a journey to Mecca,” during the days of Hajj. He also adopted it in the transmission of Asbagh in the Book of Charitable Donations and Gifts, concerning someone who sells land containing water and says, “I sold the land without the water, expressly stipulating this,” while the buyer says, “Rather, I purchased the land with its water.” Judge Abū al-Walīd al-Bājī—may Allah Most High have mercy on him—also inferred this position from the Book of Mounts and Riding Animals in al-Mudawwana. His inference is unsound, however, because the passage in al-Mudawwana concerns only a case in which restitution is no longer possible.

Section

The cases concerning hire, land and water, and disagreement over the nature of the currency are subject to the foregoing difference of opinion. As for disagreement over whether the transaction is lawful or unlawful, a more detailed distinction is required, namely,