it is held that transferring the oath is equivalent to evidence, the claimant’s oath, coupled with the defendant’s refusal to swear, constitutes evidence. The claimant has thus produced evidence supporting his claim, and there is no doubt that what he claims must be handed over to him. This follows the principle of those who do not adjudicate by transferring the oath to the claimant, such as Mālik, al-Shāfiʿī, and one of the two positions within the school of Imam Ahmad.

For those who adjudicate on the basis of refusal to swear, such as Abū Hanīfah and Ahmad, according to the better-known of the two reports from him, the case is stronger still. If both litigants consent and the claimant swears, they regard this as permissible; it also comes under refusal to swear. Thus, when a man knows that he has had numerous dealings with others, some unsupported by evidence, and that he owes obligations whose holders and amounts he may not know, such a stipulation on his part is not a voluntary gift. Rather, it is a testamentary instruction to discharge an obligation. By Muslim agreement, a testamentary instruction to discharge an obligation owed to another person is payable from the estate as a whole.

For if someone knows that he owes an obligation but doubts whether he has discharged it, he may not swear an oath denying it. Rather, if the defendant swears an oath and pays him, he has fulfilled his duty. If he owes an obligation but does not know precisely to whom, he must do what will discharge his liability, for whatever is indispensable to fulfilling an obligation is itself obligatory. This is like someone who has missed one of a day’s prayers but does not know which, or someone who owes a debt to one of two men but does not know which is entitled to it. If he says, “Whichever of you swears an oath shall have it,” or something similar, he has fulfilled his duty.

Furthermore, if a claim is made against someone and he does not know whether it is true or false, he may not categorically deny it under oath, for that would be swearing to something he does not know. Rather, he must act according to what he considers most likely. If someone whom he believes informs him of something, he should act upon it. And if he transfers the oath to the claimant