Explanation of the author's statement: "And if the claimant says: I have no evidence, the judge informs him that he has the right to an oath from his opponent according to the nature of his response. If he requests that he be made to swear, he is made to swear"
Machine translationRead the Arabic original
The Shaykh : The author said "And if the claimant says: I have no evidence". Note that "I have no evidence" here is a negation, meaning I do not have evidence. The evidence (bayinah) will come, if Allah wills, that it varies depending on what is being witnessed. It may be one man and two women, or one man and two women, or two men, or one woman, depending on what is being witnessed, as will come, if Allah wills. And when he says "I have no evidence" here, we say that it is recommended (mustahabb) for the claimant to say "I do not know of any evidence for me," because if he says "I have no evidence," there might be evidence he is unaware of or has forgotten. Then, if he presents it after saying "I have no evidence," it is not accepted according to the well-known view of the school of thought, as will come, if Allah wills. So it is better to say "I do not know of any evidence for me," "I do not know of any evidence for me." Okay, he says "The judge informs him that he has the right to an oath from his opponent according to the nature of his response". According to the nature of his response, not according to the claimant's claim. We say now, if you do not have evidence, we asked the defendant and he said, "I do not admit it," he denied it. So we say, you have the right to an oath from your opponent according to the nature of your response, not according to what you claimed. For example, if he claims one hundred and the opponent says, "He is not entitled to more than fifty from me," what does he swear to? He swears and says, "By Allah, he is not entitled to more than fifty from me." There is no need for him to say, "By Allah, he is not claiming one hundred from me," because he is only bound by the oath according to the nature of what he responded with. So he swears according to the nature of what he responded with. For this reason, he said "according to the nature of his response." The evidence is the saying of the Prophet (peace and blessings be upon him) Bulugh al-Maram 1423. This is the evidence. The reasoning is that the oath in disputes is on the side of the stronger of the two disputants. Here we have a claimant and a defendant. Which side is stronger, the claimant's or the defendant's? The defendant's side is stronger because the original state (asl) is with him. The original state is that what the claimant claimed is not established. So the original state is with the defendant. If his side is stronger because the original state is with him, then the oath is in his right, not in the claimant's right. So we have evidence and reasoning. What is the evidence? Jami` at-Tirmidhi 1341Sahih (Darussalam) As for the reasoning, it is because the oath is only prescribed in the chapter of claims on the side of the stronger of the two disputants. And here, the defendant's side is stronger. Why? Because the original state is with him. This rule has branches and evidence that supports it. For example, if a person claims something and brings one witness and swears with the witness, he is ruled in his favor. Because when he brought one witness, the witness is not sufficient, but it strengthens his side. Do you understand this? I claimed one hundred riyals against so-and-so and brought one witness. It is not ruled by the witness alone, but the witness strengthens my side, so the oath is prescribed in my right. If I swear, I get it. In the chapter of qasamah (oath-taking in homicide), the claimant's side is stronger than the defendant's side, and I think qasamah has passed through your studies. Okay. Also, if a woman claims after her husband has divorced her that the clothes in the room are hers, and they are women's clothes, and the husband says, "No, they are mine, they are not hers," the woman's side is stronger, so she takes them by her oath. And what we gave as an example previously: a bald man is chasing a fleeing man, and the fleeing man has a ghutrah (headscarf) on him and a ghutrah in his hand. The bald man says, "This is my ghutrah." The bald man is the claimant now, and the ghutrah is his by his oath because his side is stronger. The important thing is that this rule is sound. So we have evidence and reasoning. The evidence is the hadith, and the reasoning is that the oath in the chapter of claims is only prescribed on the side of the stronger of the two disputants, which here is undoubtedly the denier. The author said "If he requests that he be made to swear, he is made to swear and released". If he requests, the actor is the claimant. The pronoun refers to the defendant. Who is asked to make him swear? The judge. So if the claimant asks the judge to make the defendant swear, the judge says, "Swear." He made him swear. He made him swear. The judge said to him, "Swear." Okay. And "released" means the case ended. The dispute was resolved. Now, is it resolved or not? It is resolved.
The questioner : ... .
The Shaykh : This scenario is now before you. He claimed against Zayd for such-and-such. He was asked, "Do you have evidence?" He said, "No." He was asked, "Do you have your oath?" He said, "Make him swear." So we made him swear, and then we released him. The case ended. Is it ended or not? It is ended. The case is ended. Okay.
The questioner : And if he came with other ... .
The Shaykh : He wants to come to us. The important thing is the case ended. He said, "He made him swear and released him." He said "And his oath is not considered before the claimant's request". The denier's oath is not considered before the claimant's request. What does "before the claimant's request" mean? It means before the claimant asks the judge to make him swear. So if the judge hastens, and when he sees that the defendant has denied, he says, "Swear," before his opponent says, "Make him swear," then the oath-taking here is not considered. So the oath here is not considered. Why? Because this oath became before the existence of the cause. And the precedence of a thing over its cause is not considered, as passed to us in the rules of Ibn Rajab, that the precedence of a thing over its cause is not considered. So here, he made him swear before the one who has the right asked. The right is for the claimant now. The right is for the claimant. So if he made him swear before his request, he made him swear before the existence of the cause, so this oath is not considered. This is their reasoning. But if the custom of the judges is that it does not require the claimant's request, and they make him swear without his request, then the customary request is like the verbal request.
But the proof (Bayyinah) lies on the one who is making the claim, and the other (Yamin) must be taken by the one who rejects the claim.
البينة على المدعي واليمين على من أنكرThe proof is due from the claimant, and the oath is due from the one the claim is made against.
البينة على المدّعي واليمين على المنكرThe questioner : ... .
The Shaykh : This scenario is now before you. He claimed against Zayd for such-and-such. He was asked, "Do you have evidence?" He said, "No." He was asked, "Do you have your oath?" He said, "Make him swear." So we made him swear, and then we released him. The case ended. Is it ended or not? It is ended. The case is ended. Okay.
The questioner : And if he came with other ... .
The Shaykh : He wants to come to us. The important thing is the case ended. He said, "He made him swear and released him." He said "And his oath is not considered before the claimant's request". The denier's oath is not considered before the claimant's request. What does "before the claimant's request" mean? It means before the claimant asks the judge to make him swear. So if the judge hastens, and when he sees that the defendant has denied, he says, "Swear," before his opponent says, "Make him swear," then the oath-taking here is not considered. So the oath here is not considered. Why? Because this oath became before the existence of the cause. And the precedence of a thing over its cause is not considered, as passed to us in the rules of Ibn Rajab, that the precedence of a thing over its cause is not considered. So here, he made him swear before the one who has the right asked. The right is for the claimant now. The right is for the claimant. So if he made him swear before his request, he made him swear before the existence of the cause, so this oath is not considered. This is their reasoning. But if the custom of the judges is that it does not require the claimant's request, and they make him swear without his request, then the customary request is like the verbal request.