Section Two: Oaths

With respect to oaths, the jurists concur that when the defendant swears—while the plaintiff has no evidence—the claim against him is dismissed. They differ, however, over whether an oath can itself secure a right for the plaintiff.

Mālik holds that the plaintiff’s right is indeed confirmed by an oath, whether by proving what the defendant denies or by nullifying a right previously established against the defendant when he now claims it has lapsed, provided the plaintiff’s position rests on a stronger presumption than that of his opponent.

Others maintain that an oath never establishes a claim for the plaintiff—be it to discharge himself from an obligation already proven against him, or to affirm a right his adversary denies.

The root of their disagreement lies in how they understand the Prophet’s statement, peace and blessings be upon him: “The proof is upon the claimant, and the oath upon the one who denies.” Is this rule universal for every claimant and defendant, or was the claimant given the burden of proof and the defendant the oath merely because, in most cases, the claimant’s presumption is weaker and the defendant’s stronger?

Whoever says the ruling is universal, with no special qualification, concludes that no right is established—or extinguished—by an oath alone. Conversely, whoever argues that the defendant was assigned the oath on account of his ordinarily stronger presumption says that whenever the claimant’s presumption is stronger, his statement together with his oath prevails.

This latter group cite those situations in which the majority agree that the plaintiff’s word—fortified by his oath—is accepted, such as a claim that a deposited item has perished, and any analogous case that may arise. The first group respond that the basic rule stands, save for what consensus has explicitly excepted.

All agree that the oath capable of dismissing or establishing a claim is the oath sworn by Allah—there is no deity but He. The formulations adopted by the jurists of the various regions are similar:

• Mālik’s wording is simply: “By Him besides whom there is no god,” without addition.
• Al-Shāfiʿī adds: “Who knows what is hidden just as He knows what is manifest.”

They then disagree on whether an oath should be intensified by the place in which it is taken. Mālik maintains that it should, but only when the amount in dispute reaches a certain threshold, and al-Shāfiʿī concurs in principle though they differ over that threshold.

Mālik says: if the sum claimed is three dirhams or more, the defendant must swear in the congregational mosque. If the case is heard in the Prophet’s Mosque—peace and blessings be upon him—there is unanimous agreement that he swears upon the pulpit. In any other mosque there are two reports: one allowing him to swear at any agreed-upon spot within the mosque, the other requiring the oath beside the pulpit.

Ibn al-Qāsim transmits from Mālik that, in matters of consequence, the oath is to be taken in the central mosque without specifying an amount.

Al-Shāfiʿī says: