known to be in a particular place. At other times, the loss of some property is certain, but not its amount: one knows that property was there and has disappeared. Sometimes, it is certain that the secure storage place was breached, but it is not known whether anything was taken. This concerns claims of theft. In claims of breach of trust, however, the breach itself is not known. If some of the property concerned is found with the defendant or with someone who received it from him, incriminating circumstantial evidence emerges, giving greater weight to the claimant’s case. Requiring the defendant to swear an oath at that point would be difficult to justify.

The Prophet, may Allah bless him and grant him peace, said:

“If people were granted whatever they claimed, some would claim the blood and property of others. Rather, the oath rests upon the defendant.”

Here he mentioned blood and property together. Just as a claimant in a homicide case swears an oath when supported by incriminating circumstantial evidence, so too does a claimant in a property dispute, just as we require him to swear an oath alongside his witness’s testimony. Anything that makes his truthfulness more likely serves the same function as his witness. Thus, in homicide cases, we have treated testimony tainted by a deficiency in the required number or qualifications of witnesses as incriminating circumstantial evidence. Likewise, in property cases, a witness is accepted together with an oath. Thus the tainted witness is accompanied by incriminating circumstantial evidence, and he is … (1)

However, consideration should be given here to the truthfulness or dishonesty of both claimant and defendant. Theft and breach of trust are committed only by a sinful person. If he is given to such conduct, he would not be … (2) if he were entirely upright.

The claimant, too, may lie. That uprightness and sinfulness should be considered here is indicated by the Ansārī’s statement: “How can we accept the oaths of people who are disbelievers?” It follows that, if the accused is wicked, the claimant may refuse to accept his oath, since someone who has no scruples about stealing will have none about swearing an oath.