In your previous lessons, you mentioned that the proof lies with the claimant and the oath with the denier, and you mentioned that if the claimant fails to present proof, the oath is directed to the denier.
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The questioner : This one says, may Allah honor him,The Shaykh : You mentioned in your previous lessons that the proof lies with the claimant and the oath with the denier, and you mentioned that if the claimant fails to present proof, the oath is directed to the denier. Question: What is the ruling if the defendant denies the oath? Please answer us, may Allah reward you.
The Shaykh : Did you understand the question? Yes, the question is clear. Good. The proof lies with the claimant and the oath with the one who denies. So-and-so claims against so-and-so, and we say: Number One claims against Number Two that he has ten thousand riyals owed to him by Number Two. Then Number Two says, "I owe you nothing." What do we say? We say to Number One, "Present your proof." He says, "I have no proof." We say to Number Two, "Swear that you owe Number One nothing." Number One, I mean, because these are numbers, people, and they get lost on you. Good. He says, "I will not swear." So, the first one, Number One, has no proof, and the second one, Number Two, is not swearing. What do we do? We rule against him by *nukhul* (refusal to swear). We rule against Number Two by *nukhul*, and we say, "Pay what was claimed, because if you were truthful and he owed you nothing, you would have sworn. So, your refusal to swear indicates that you are lying in your denial." But do we return the oath to the claimant and say to the claimant, "You now have no proof, and the man refused to swear, so swear that you have a thousand riyals owed to you by him"? We said a thousand riyals, ten thousand. Good. Do we return the oath to the claimant, or do we rule against the denier by *nukhul* without returning the oath to the claimant? —Pay attention, my son— What do you say?
The student: ...
The Shaykh : Good, I refuse to swear.
The student: ... .
The Shaykh : The claimant has the burden of proof, so he said, "I have no proof." And the denier, we said, "You have the oath," and he said, "I will not swear." We said, "We will rule against him," against the denier, and we say, "Pay the right, because if you were truthful and owed nothing, you would have sworn." But if we want to rule against this denier, do we return the oath to the claimant and say, "O claimant, swear that so-and-so owes you such and such"?
The student: ...
The Shaykh : No, good, rest.
The student: ...
The Shaykh : It is returned to him.
The student: Yes, it is returned to him.
The Shaykh : Good. These are two opinions among those present, and they are two opinions among the previous scholars. Some scholars said: The oath is returned to the claimant, because when the defendant refused to swear, the claimant's position became stronger, so it is necessary to confirm it with an oath. If the claimant is truthful, will he swear or not? He will swear, and there is no harm on him. But we may say that this is left to the judge's discretion. If he sees that it is in the public interest to confirm the claimant's claim with an oath, let him do so. And if he sees that the claimant is a righteous man who cannot claim what is not his, there is no need to return the oath; rather, the ruling is made by *nukhul*. Yes.
—Did you understand?—
The Shaykh : Did you understand the question? Yes, the question is clear. Good. The proof lies with the claimant and the oath with the one who denies. So-and-so claims against so-and-so, and we say: Number One claims against Number Two that he has ten thousand riyals owed to him by Number Two. Then Number Two says, "I owe you nothing." What do we say? We say to Number One, "Present your proof." He says, "I have no proof." We say to Number Two, "Swear that you owe Number One nothing." Number One, I mean, because these are numbers, people, and they get lost on you. Good. He says, "I will not swear." So, the first one, Number One, has no proof, and the second one, Number Two, is not swearing. What do we do? We rule against him by *nukhul* (refusal to swear). We rule against Number Two by *nukhul*, and we say, "Pay what was claimed, because if you were truthful and he owed you nothing, you would have sworn. So, your refusal to swear indicates that you are lying in your denial." But do we return the oath to the claimant and say to the claimant, "You now have no proof, and the man refused to swear, so swear that you have a thousand riyals owed to you by him"? We said a thousand riyals, ten thousand. Good. Do we return the oath to the claimant, or do we rule against the denier by *nukhul* without returning the oath to the claimant? —Pay attention, my son— What do you say?
The student: ...
The Shaykh : Good, I refuse to swear.
The student: ... .
The Shaykh : The claimant has the burden of proof, so he said, "I have no proof." And the denier, we said, "You have the oath," and he said, "I will not swear." We said, "We will rule against him," against the denier, and we say, "Pay the right, because if you were truthful and owed nothing, you would have sworn." But if we want to rule against this denier, do we return the oath to the claimant and say, "O claimant, swear that so-and-so owes you such and such"?
The student: ...
The Shaykh : No, good, rest.
The student: ...
The Shaykh : It is returned to him.
The student: Yes, it is returned to him.
The Shaykh : Good. These are two opinions among those present, and they are two opinions among the previous scholars. Some scholars said: The oath is returned to the claimant, because when the defendant refused to swear, the claimant's position became stronger, so it is necessary to confirm it with an oath. If the claimant is truthful, will he swear or not? He will swear, and there is no harm on him. But we may say that this is left to the judge's discretion. If he sees that it is in the public interest to confirm the claimant's claim with an oath, let him do so. And if he sees that the claimant is a righteous man who cannot claim what is not his, there is no need to return the oath; rather, the ruling is made by *nukhul*. Yes.
—Did you understand?—