Evidence (bayyina) and the burden between litigants

This section is part of the full chapter: All sections of this chapter.

The bayyina: what proof designates

The bayyina is a clear sign of the claimant's truthfulness: the two witnesses, three, four, and the like of proofs. The word comes from bayan, uncovering and making plain: in Islamic law, proof makes the claimant's truthfulness plain and uncovers the right. Witnesses were named bayyina because through them the truth becomes clear (al-Ikhtiyar 2/131; Mughni al-Muhtaj 6/425; Tuhfat al-Muhtaj 12/428; Nihayat al-Muhtaj 8/391; ad-Daybaj 4/534; Manar as-Sabil 3/482; al-Matla' p. 403).

Claimant and defendant: the definitions of the schools

A claim (da'wa) only exists from a claimant against a defendant: knowing the difference between the two is among the foundations of the rules of claims, since the Prophet (peace and blessings of Allah be upon him) said: "The proof is upon the claimant and the oath upon the one who denies." The jurists' expressions multiplied in defining each of the two.

The Hanafis: the claimant is the one who is not compelled to litigation if he abandons it; the defendant is the one who is compelled to it, called the denier. Another definition: the claimant attributes to himself what is not established, the defendant relies on what is established by apparent possession: if a debt is claimed from a man and he claims to have paid it and to be discharged, he becomes a claimant, for he claims what is not established, the discharge of his liability, after their agreement on its incurrence. Another: the claimant only deserves his right by proof, like the outsider; the defendant deserves by his word without proof, like the possessor. Another: the claimant attributes to himself what is with another, the defendant attributes to himself what is with himself; all these expressions are close (al-Ikhtiyar 3/131; al-Hidaya 3/155; al-Inaya 11/253; al-Jawhara an-Nayyira 6/87; al-Lubab 2/411; Mukhtasar al-Wiqaya 2/293).

Al-Mawsili says the matter must be verified and known by meaning, not by form: the depositary who claims to have returned the deposit is a claimant in form and a denier in meaning, to the point that if he abandons, he is not left alone; the jurist who examines closely sees this by the success Allah grants. He reports from his shaykh (may Allah have mercy on him): the claimant is the one who has no proof, the defendant the contrary; hence Musaylima the Liar is called a pretender to prophethood, and this is not said of the Messenger (peace and blessings of Allah be upon him). It is also said: the claimant only deserves by proof, the defendant deserves without proof: by his mere word "it is mine", the thing remains his as long as the claimant does not establish his entitlement. It is said: the claimant seeks what contradicts the apparent, namely the newly occurring matter; the defendant holds to the apparent, like original nonexistence. The deposit illustrates all of it: the depositary claiming return is not really a claimant, and the depositor denying the return is not really a denier, for his denial is in meaning a claim that the depositary's liability is encumbered, and the depositary's claim is in meaning a denial of that encumbrance, to free his liability from guarantee: he is compelled to litigation as a defendant, and his word is believed with the oath, for consideration is given to meanings, not forms, as in Ibn ash-Shaykh's Sharh al-Wiqaya (Majma' al-Anhar 3/344; Hashiyat Ibn Abidin 7/401).

The Malikis: the claimant is the one whose claim is stripped of anything corroborating it, or the weaker of the two litigants in indicating truthfulness, or the one whose claim is accompanied by what customarily weakens it: departing from custom, contradicting an underlying principle, and the like. The one whose side is strengthened by any of these is the defendant. If one claims what contradicts custom and the other what conforms to it, the first is the claimant. Likewise, whoever claims to have paid what is due from him or to have returned what is with him, without anything corroborating his claim, is a claimant; except the depositary claiming return of the deposit: he is believed, for his side is strengthened by the acknowledgment of his trustworthiness (Iqdat al-Jawahir 3/1075; Sharh Mukhtasar Khalil 7/155; at-Tahrir 5/77).

Ibn Juzayy (may Allah have mercy on him) reports from Sa'id ibn al-Musayyib: "Whoever knows the claimant from the defendant is never confused in what he judges between them: the claimant is the one who says: it was; the defendant, the one who says: it was not." Others: the claimant is the seeker, the defendant the sought. It is said: the claimant is the one who calls his counterpart to judgment, the defendant the called. The verifiers: the claimant is the one whose word is weaker for departing from custom or contradicting a principle; the defendant, the one whose word is strengthened by custom, conformity to a principle, or an indication. Example: one holding a claim against a man: the seeker's word is weak and he is the claimant, the sought's word is strengthened and he is the defendant, for the principle is the discharge of liability; if the right is established and he says: "I paid it", he becomes a claimant, for the principle is discharge from payment and the persistence of the thing with him, the principle being the persistence of what was as it was, unless custom or indication requires otherwise. So too the one who possessed a thing then another claims ownership of it: the possessor's word is strengthened, he is the defendant; the other's is weakened, he is the claimant. On this basis, proof lies upon the one whose word is weak, and the oath upon the one whose word is strong (al-Qawanin al-Fiqhiyya p. 197-198).

The Shafi'is, in the more apparent view: the claimant is the one whose word contradicts the apparent, which is the discharge of liability; the defendant, the one whose word conforms to it. In the opposite view: the claimant is the one who, were he silent, would be left with nothing demanded of him; the defendant, the one who is not left and whom silence does not suffice. If Zayd claims a debt upon Amr's liability and he denies: Zayd's word contradicts the apparent, Amr's discharge, and were he silent he would be left; Amr conforms to the apparent, and were he silent he would not be left: he is the defendant, and Zayd the claimant according to both views, whose effect rarely differs.

It may differ, as with a husband and wife who embraced Islam before consummation: the husband says: "we embraced Islam together, the marriage stands between us"; the wife says: "we embraced Islam successively, there is no marriage between us." In the apparent view, he is the claimant, for the simultaneity of the two conversions contradicts the apparent; she is the defendant, for her word conforms to the apparent: she is believed with her oath. In the second view, she is the claimant and he the defendant, for were she silent she would be left, while he would not be left were he silent, because of her claim of dissolution. In the first view, the wife swears and the marriage is removed; in the second, the husband swears and the marriage continues. It is said: the oath was placed on his side in the first view because, the principle being the persistence of the marital bond, his side is strong: he is believed with his oath, just as the defendant, the principle being the discharge of his liability, has the strong side and is believed with his oath.

If he says to her: "you embraced Islam before me: there is between us neither marriage nor dower for you", and she says: "rather, we embraced Islam together": he is believed for the separation without oath, and for the dower with his oath in the apparent view, for the apparent is with him; she is believed with her oath in the second view, for she would not be left were she silent, the husband claiming the lapse of the dower: if she is silent with no proof, she is deemed a refuser, he swears and the dower falls. The trustworthy one (amin) claiming the return of what was entrusted to him is a claimant in the apparent view, for he claims the return, which contradicts the apparent; yet he is believed with his oath, for he only took the thing in hand for the owner's interest, and the owner trusted him: it is not fitting to burden him with proof of return. In the second view, he is the defendant, for the owner is the one who, were he silent, would be left. In mutual swearing (tahaluf), each of the two adversaries is claimant and defendant, for they are equal (an-Najm al-Wahhaj 10/396-397; Mughni al-Muhtaj 6/429-430; Nihayat al-Muhtaj 8/398).

The Hanbalis: the claimant is the one who demands his right from another; the defendant is the demanded, the one whom another demands by mentioning the right he holds upon him. It is also said: the claimant is the one who, if he abandons, is left; the defendant, the one who, if he abandons, is not left, but to whom it is said: "answer, otherwise I make you a refuser and judge against you." Each of the two may be claimant and defendant at once, if they dispute over the contract, each claiming that the price is other than the one his counterpart mentioned (al-Mughni 10/241; al-Mubdi' 10/145; Kashshaf al-Qina' 6/488; Sharh Muntaha al-Iradat 6/600; Mata'lib Uli an-Nuha 6/566; Manar as-Sabil 3/482).

The fruit of the distinction

The distinction between claimant and defendant identifies the side upon whom falls the burden of establishing proof, and the side upon whom only the oath remains when no proof testifies for the first: the judge who knows the one from the other has only to apply the established rules of proofs and preponderance. Hence what is reported from Sa'id ibn al-Musayyib: "Any man who knows the claimant from the defendant is never confused in what he judges between them: the claimant is the man saying: it was; the defendant, saying: it was not."

Imam Ibn Rushd the grandfather (may Allah have mercy on him) says: the point of knowing the decision between the two litigants is to distinguish the claimant, upon whom establishing proof is incumbent and to whom the oath is not given, from the defendant, to whom the oath is given and upon whom proof is not incumbent, by standing upon the separating cause that requires beginning with the defendant's oath rather than the claimant's. For the word may be the claimant's when he is, in meaning, a defendant, and establishing proof may be incumbent upon the defendant when he is, in meaning, a claimant: the defendant's word is not his word because he is a defendant, and proof is not incumbent upon the claimant because he is a claimant; rulings follow meanings, not names.

The meaning for which the defendant's word is his is that he holds a cause indicating his truthfulness over the claimant's mere assertion: the thing in his hand, if the claim concerns a specific thing; or his liability discharged according to the principle of discharged liabilities, if the claim concerns what is in his liability. The meaning for which proof is incumbent upon the claimant is that his assertion is stripped of any cause indicating his truthfulness. If he holds a cause stronger than the defendant's, such as a single witness, a pledge, or the like of presumptions that lift the veil, he must begin with the oath rather than the defendant. If neither holds a cause, as a thing both claim which is in neither's hand, or if each holds a cause equivalent to the other's with no superiority, as two equal proofs while the thing is in neither's hand: neither begins with the oath over the other, and both must swear and divide the thing between them.

The principle is that the one beginning with the oath among the two litigants is the one who most resembles a claimant supported by a cause indicating his truthfulness, be he claimant or defendant, for claimant and defendant are in truth two litigants. Example: one claiming a house in a man's hand: both are litigants over the house, each claiming it for himself to the exclusion of the other; equal in assertion, the advantage of the one in whose hand the house is, is the hand: he most resembles the claimant, and his word is upheld for that meaning, not because he is a defendant.

Sa'id ibn al-Musayyib's saying is not general in every place: it is only valid if the claimant's assertion, "it was", is stripped of any cause corroborating it; if he holds a cause stronger than the defendant's who says "it was not", he is cleared of it by the oath. Example: one who held a thing for a time such that possession has force against the claimant, then claims purchase: his word is upheld with his oath, though he is a claimant saying "it was" and the defendant saying "it was not". So too the depositary claiming return of the deposit: his word is upheld, though he is a claimant. The examples are many.

It thereby appears that the Prophet's saying (peace and blessings of Allah be upon him): "The proof is upon the one who claims and the oath upon the one who denies", is general for all claims, over properties, blood and the rest, and specific to the litigant whose assertion is stripped of a cause indicating his truthfulness. And Allah knows best. This is a totality upon which none of the people of knowledge differ; what disagreement is found among them in disputes does not depart from this principle: it concerns the strength of the cause indicating one litigant's truthfulness and its weakness, according to what independent reasoning leads each to (al-Muqaddimat al-Mumahhidat 2/190-192; al-Bayan wa at-Tahsil 12/78).

When one of the two produces a proof

Imam al-Imrani (may Allah have mercy on him) says: if two dispute a specific thing and one produces a proof, judgment is given to the holder of the proof, whether the thing is in his hand, in the other claimant's, in a third party's, or in no hand: the Prophet (peace and blessings of Allah be upon him) began with judgment by proof, indicating that it is the strongest argument (al-Bayan 13/161). Ibn Qudama (may Allah have mercy on him) says: if one of the two has a proof, judgment is given by it, without disagreement known to us (al-Mughni 10/251; al-Qawanin al-Fiqhiyya p. 200; al-Bayan 13/161; Sharh Muntaha al-Iradat 6/604-605).

The thing claimed by both who hold it together

With no proof for either: if two men dispute a thing in their hands, each claiming it for himself to the exclusion of the other, each swears to the other and it is halved between them, without disagreement among the jurists; likewise if both refuse the oath: it remains between them, for each deserves what is in the other's hand by his refusal. If one refuses and the other swears, judgment is given to him for all of it: he deserves what is in his hand by his oath, and what is in his counterpart's hand, either by the latter's refusal, or by the oath returned to him upon his refusal. If one has a proof, judgment is given by it for him, without disagreement known (al-Mughni 10/246-247; al-Bayan 13/160-161).

Ibn Qudama adds: if a house is in their hands, one claiming it in full and the other by half, with no proof for either, it is between them by halves, per Ahmad's text; the half-claimant swears to the other, and no oath upon the other, for the half upheld for him has no contestant; no disagreement known, except what is reported from Ibn Shubruma: the whole-claimant gets three quarters, for the half is his without contestant, and the other half is divided between them per their claims. Our proof: the half-claimant's hand is upon what he claims, so his word is upheld with his oath, as in other claims. If each has a proof of what he claims, they contradict: the half is the whole-claimant's, and the other half depends on the disagreement over which proof to advance; the apparent of the school advances the claimant's proof, so the whole house is the whole-claimant's, the view of Abu Hanifa and his two companions. If the house is in the hand of a third party who does not claim it, the half is the whole-claimant's without contestant, and lots are drawn for the other half: whoever the lot exits for swears and it is his; and if each has a proof over it, they contradict and fall, and they are as with no proof; if it is said both proofs are employed, lots are drawn and the one upon whom the lot falls is advanced, in one of the two views; in the second, the disputed half is divided between them, and the whole-claimant gets three quarters. If the house is in the hands of three, one claiming half, the second a third and the third a sixth: it is an agreement between them on the mode of their ownership, with no dispute or denial; and if each claims that the rest of the house is with him as deposit or loan, and has a proof of what he claims, judgment is given for him, for his proof testifies to his claim with no opponent; if none has a proof, each swears, and a third of the house is confirmed in his hand (al-Mughni 10/248-249).

If each of the two produces a proof and they are equal: Hanafis, Malikis, Shafi'is and Hanbalis say the thing is halved between them, per the hadith of Abu Hurayra (may Allah be pleased with him):

Two men claimed a riding beast; each of them produced two witnesses, and the Messenger of Allah (peace and blessings of Allah be upon him) judged between them by halves.Ibn Hibban 5068 (authentic hadith)

And per what Abu Musa (may Allah be pleased with him) reported:

Two men disputed before the Messenger of Allah (peace and blessings of Allah be upon him) over a camel; each of them produced two witnesses, and the Messenger of Allah judged the camel shared between them by halves.Abu Dawud 3613; an-Nasa'i 5424; Ibn Majah 2330 (authentic hadith)

And because each of the two is an insider in half the thing and an outsider from its other half: each one's proof is advanced for what is in his hand per those advancing the insider's proof, and for what is in the other's hand per those advancing the outsider's: they are thus equal according to both views. They differed over the oath: the Shafi'is in one view and the Hanbalis in one narration say he swears, for the two proofs, contradicting without preponderance, must fall like two equal reports; the litigants then become as with no proof, and each swears upon the half upheld for him. The Hanafis, the Malikis, the Shafi'is in the second view and the Hanbalis in the second narration: the thing is divided between them without oath, due to Abu Hurayra's report already cited.