Ibn ʿAbbās reports that the Messenger of God ﷺ said:

“The burden of proof is upon the claimant, while the oath is upon the one who denies the claim.”

Mālik held that an oath is not required unless there has been prior dealing between the two parties, and this was likewise the position of the seven jurist-scholars of Madinah.

Those who adopt this view base it on considerations of public welfare, so that people will not exploit litigation to harass or harm one another. On this basis, Mālik would not oblige a woman to place her husband under oath when she alleges that he has divorced her, unless she can produce a supporting witness; the same applies to a slave who claims his master has emancipated him.

A lawsuit is either for a debt that remains in the defendant’s liability or for a specific, tangible object. If the claim concerns a debt and the defendant asserts that he is free of liability and says he has evidence to that effect, his evidence is heard by consensus— and the same holds if the dispute is over a concluded contract or a particular item, such as a sale.

If, however, the claim is for a specific object—what jurists call an istihqāq (claim of ownership)—they differed as to whether the defendant’s evidence may be admitted. Abū Ḥanīfah said that the defendant’s evidence is not heard except in matters of marriage and other issues that cannot recur. Others went further and said it is heard in no case at all. Mālik and al-Shāfiʿī, by contrast, deemed it admissible; that is, they allow the witnesses brought by the defendant to testify that the disputed item is his property and belongs to him.

Those who exclude such testimony argue that the Law assigns proof to the claimant and the oath to the defendant, and that this distribution must not be reversed; to them, it is an act of worship. The root of the disagreement is whether the defendant’s evidence adds anything beyond the mere fact that the item is in his possession. Whoever says it adds nothing declares it meaningless; whoever says it adds meaning accepts it.

When the defendant’s testimony is taken into account and two sets of witnesses conflict, yet neither side establishes an irrefutable fact—one that cannot recur in the owner’s domain—Mālik rules for the party whose witnesses are more upright, without regard to their greater number. Abū Ḥanīfah, consistent with his principles, gives precedence to the claimant’s evidence and does not allow integrity to tip the balance, just as Mālik does not allow numbers to prevail. Al-Awzāʿī holds that superiority lies in the greater number of witnesses. If the two sides are equal in uprightness, then according to Mālik it is as though there were no evidence at all: the defendant must swear. If he refuses, the claimant swears and the right is established, for the defendant’s possession itself testifies in his favor, and therefore his proof—the oath—is the weaker of the two proofs.

If the opponent confesses and the claim concerns a specific object, all agree that the item is handed over to the claimant. But if the claim is a debt, the confessor is required to pay it. Should he allege insolvency, the judge—in Mālik’s view—imprisons him until his poverty becomes evident, whether through the passage of time in prison or through evidence if he is suspected. Once his hardship is manifest, he is released, in accordance with the Almighty’s words:

“Yet if the debtor is in straitened circumstances, then grant him respite until ease.” (Q 2:280)

Others said the judge should lease out his labor, a view adopted by Aḥmad and transmitted from ʿUmar ibn ʿAbd al-ʿAzīz; it is also related from Abū Ḥanīfah that his creditors may accompany him wherever he goes. There is no dispute that if the defendant impeaches the witnesses before judgment, the ruling is nullified. If the impeachment occurs after judgment, Mālik holds that the ruling is not overturned.