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When a debtor is granted a respite for a debt that has fallen due, a surety must be obtained from him. Sahnūn stated this in his son’s book. If he has no surety, he is imprisoned. The rationale is that difficulty in repayment may affect most people, unless he is known to be wealthy and to possess ready cash; in that case, he is granted neither respite nor postponement.
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If he is not known to possess ready cash, but the creditor alleges that he does, and that he merely intends to act obstinately and cause harm by delaying payment of what is owed, and requests that he be made to swear an oath on this matter, the ruling follows the disagreement concerning an oath based on suspicion. Abū Umar al-Ishbīlī—may Allah have mercy on him—considered the grounds for requiring such an oath weak. In support of this, he cited Mālik’s statement in Ashhab’s transmitted material in the Book of Zakāt: “Most people have no ready cash.” If, however, the creditor makes a definite allegation against him, he is entitled, by agreement, to require him to swear an oath. If the debtor refuses, the claimant swears, and the defendant is compelled to pay, without being granted any delay, however short or long.
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If the claimant asks for the debtor’s house to be searched, saying that he has concealed his property there, the later scholars differed concerning this. The jurist Abū al-Asbagh and Ibn Sahl—may Allah have mercy on him—related that he had witnessed fatwas and judgments in Toledo to the following effect: when a claimant requested a search of the defendant’s dwelling after the latter claimed to lack the means to discharge the debt, his dwelling would be searched. Any household goods belonging to men found there would be sold on his behalf, and the claimant’s right would be satisfied from the proceeds. Their jurists did not differ on this. He objected to this practice before most of them, but they persisted and would not abandon it. He asked the jurist Ibn Attāb—may Allah have mercy on him—about it, and he disapproved of it. Ibn Mālik also disapproved, saying: “What if the things found in his house are deposits entrusted to him?”
He said: “I replied, ‘They are presumed to belong to him unless the contrary becomes apparent.’ He said, ‘In that case, they must be held back and time allowed to ascertain whether anyone claims them, or until someone comes forward claiming ownership.’”
He said: “I informed Ibn