Section

According to Mālik—may Allah have mercy on him—whenever two parties dispute a claim and one has evidence supporting his claim that the other lacks, even if it is not conclusive, he is given priority in taking the oath, and judgment is given in his favour on the strength of it. Examples include priority in taking the oath when the testimony on both sides is evenly balanced, a single upright witness, disputes between spouses over household furnishings, the drawing of the curtain, and similar cases.

Section

Mālik said that the pledgee must swear to his entire claim, even if it exceeds the value of the pledge, since a person may not swear to only part of his claim. Any amount exceeding the pledge’s value does not become binding upon the pledgor through the pledgee’s oath. The pledgor must then swear concerning this excess. If he swears, he is cleared of it; if he refuses, he becomes liable for it through his refusal together with the pledgee’s preceding oath.

Section

If the pledge did not serve as evidence, and the pledgor’s word were accepted, as the Iraqi jurists maintain, then Allah’s words—Mighty and Majestic—would have no meaning:

“If you trust one another, let the one who is trusted discharge his trust.” [al-Baqarah: 283]

For when a creditor trusts his debtor and takes no pledge as security for the debt, the debtor’s word is likewise accepted concerning the amount of debt he acknowledges. The latter situation cannot be identical to the former. Thus, the Quran indicates a position contrary to that of the Iraqi jurists on this issue. Some scholars hold that the pledgee’s word is accepted even if he claims more than the pledge’s value. This is an anomalous view. There are therefore three positions on this issue.

Section

Testimony concerning possession of a pledge is of no avail unless the witnesses have directly observed the pledge, because mutual acknowledgment