The decisive oath and women's testimony

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

The thing in a third party's hand or in no hand

With a proof for each: the Shafi'is in the school and the Hanbalis in the school say that if both claim a thing in the hand of a denying third party, acknowledging it neither for himself nor for either of them, or in no hand, and each has a proof, the two proofs fall, and it is as if they had none: each established ownership for the one it testified for, the thing cannot be owned by two in one state, and neither has superiority; and because they sowed confusion over the owner's right, they fall, like the proof testifying ownership of a thing for one of two men without specifying him (al-Bayan 13/163-164; Rawdat at-Talibin 7/513-514; an-Najm al-Wahhaj 10/431; Mughni al-Muhtaj 6/455; Tuhfat al-Muhtaj 12/507). They differed over what is required: the Shafi'is: each of the two swears an oath; the Hanbalis: lots are drawn between them, whoever the lot exits for swears it is his and it is delivered to him, as if they had no proof; which is reported from Ibn Umar and Ibn az-Zubayr (al-Mughni 10/251; al-Kafi 4/490; Sharh Muntaha al-Iradat 6/610; Manar as-Sabil 3/482-483).

The Hanafis, the Shafi'is in one view and the Hanbalis in one narration: judgment is given to both by halves, if they claim absolute ownership or if the two proofs bear the same date, per what is reported from Abu Musa:

Two men claimed a camel in the time of the Messenger of Allah (peace and blessings of Allah be upon him); each of them sent two witnesses, and the Messenger of Allah divided it between them by halves.Abu Dawud 6315; Abd ar-Razzaq 15202; at-Tahawi 4754-4755; al-Hakim 7032 (weak hadith)

And per Abu Hurayra's report already cited (Ibn Hibban 5068). And because proof is an argument like the hand: if each had the hand, the thing would be divided between them, likewise with proof; and because they are equal in the cause of entitlement, which admits partnership, like the two legatees when a third is bequeathed to each of them: the third is halved between them, and likewise the two creditors in the estate, unlike marriage, which admits no partnership and requires mutual annulment; and because proofs are religious arguments that must be followed when possible, and here it is: hands succeed one another upon a single thing at different times, each group relying on what it witnessed of the absolute cause of testimony, which is the hand; judgment is therefore by halving between them. No preponderance by the witnesses' greater uprightness, for the aim is achieved by all, abstention from lying; no preponderance by multitude of number, for preponderance is by strength of proof, not by its multitude (al-Jassas' Sharh Mukhtasar at-Tahawi 8/191; Tubayyan al-Haqa'iq 4/316; al-Jawhara an-Nayyira 6/99; al-Lubab 2/418).

The Malikis' saying is like the Hanafis', except they say: the thing is divided between them after mutual swearing, per the measure of their claims, for they are two contradictory arguments: were one of the two litigants alone with his, ownership would be judged for him; when they contradict, the thing must be divided between them, and its origin is the hand. Ashhab, Sahnun and judge Abd al-Wahhab: it is divided between them equally, even if one claims half and the other the whole (al-Ishraf 5/99-100 no. 1852; at-Taj wa al-Iklil 5/198; Sharh Mukhtasar Khalil 7/233; al-Qawanin al-Fiqhiyya p. 200; ash-Sharh al-Kabir with the Dassouqi gloss 6/151-152; at-Tahrir 5/202).

The Shafi'is, in one view: the matter is suspended until they settle, for one is inwardly truthful and the other lying, and the uncovering of the truthful one is hoped for: suspension is required until the truthful is known, like the woman married by two guardians to two men, one of whom contracted first without the first being known. The Shafi'is in one view and the Hanbalis in one narration: lots are drawn between them, and whoever the lot exits for receives judgment of the thing, per what Sa'id ibn al-Musayyib reported: people disputed before the Prophet (peace and blessings of Allah be upon him), and their proofs were equal in uprightness and number; the Prophet drew lots between them and judged for the one whose lot exited; and because the two claimants are equal in claim and proof: lots are drawn between them, like the man who emancipates in his death illness slaves not exceeding his third. Does the one for whom the lot exits swear? The Hanbalis and the Shafi'is in one view: he swears, for the lot is weak, strengthened by the oath, and by both together the proof is strengthened, standing in place of the hand that strengthens one of the two proofs; the Shafi'is in the second view, the more correct: he is not required to swear, for the proof is strengthened by the lot: when two proofs oppose and preponderance is found with one, it is advanced without requiring another, like the proof accompanied by the hand (al-Bayan 13/163-164; Rawdat at-Talibin 7/513-514; an-Najm al-Wahhaj 10/431; Mughni al-Muhtaj 6/455; Tuhfat al-Muhtaj 12/507; al-Mughni 10/251-252; al-Kafi 4/490).

With no proof for either: the Hanafis and the Malikis say the thing is divided between them, as if each had a proof (Mukhtasar Ikhtilaf al-Ulama 4/225; Tubayyan al-Haqa'iq 4/315-316; al-Qawanin al-Fiqhiyya p. 200; Majmu' al-Fatawa 31/337). The Hanbalis: lots are drawn between them, whoever the lot exits for swears it is his and it is delivered to him; and because they are equal with no proof, lots are drawn between them, like the two wives when the husband wishes to travel with one of them (al-Kafi 4/489; Sharh Muntaha al-Iradat 6/610). It is the hadith of Abu Hurayra (may Allah be pleased with him): two men disputed a property before the Prophet (peace and blessings of Allah be upon him), with no proof for either of them:

Two men disputed a property before the Prophet (peace and blessings of Allah be upon him), with no proof for either of them. The Prophet said: "Draw lots between them for the oath, whether they like it or not."Abu Dawud 3616; Ibn Majah 2346; Ahmad 10352 (authentic hadith)

The thing in the hand of one of the two litigants

If two men claim a thing that is in the hand of one of them and each produces a proof, the jurists differed: is the thing the holder's, called the insider, or the outsider's, the one in whose hand it is not? The majority of jurists, Hanafis, Malikis and Shafi'is: if the thing is in someone's hand and another claims it with a proof, while the holder likewise produces a proof, the proof of the one in whose hand it is, the insider, is advanced, per what Imam ash-Shafi'i reports from Jabir ibn Abdallah (may Allah be pleased with him):

Two men claimed a riding beast; each of them produced the proof that it is his beast, which he bred, and the Messenger of Allah (peace and blessings of Allah be upon him) judged in favor of the one in whose hand it is.Musnad of Imam ash-Shafi'i p. 330; al-Bayhaqi, as-Sunan al-Kubra 21012

For they are equal in establishing proof, and the holder's is strengthened by his hand, hence advanced; the secret is that the two arguments, contradicting, fall, and the property remains in the hand of the seizer for lack of what requires its return; or else: one of the two proofs is aided by the apparent argument, seizure, and prevails (Hujjat Allah al-Baligha 1/781). Ad-Damiri (may Allah have mercy on him) says: Shurayh so judged, and it is the view of most scholars. It is said: he is not judged for unless he swears, for the two proofs contradict and fall, the hand subsists, and no judgment is given by it without oath; nor is the holder's proof required to specify the cause of ownership, purchase, inheritance or the like, nor is he required to swear with his proof (an-Najm al-Wahhaj 10/433; Mughni al-Muhtaj 6/456).

Imam ash-Shafi'i (may Allah have mercy on him) says: when two men dispute property, look which of the two has the stronger cause in the disputed thing, and assign it to him; if their causes are equal, neither of the two is more entitled than the other. If the disputed property is in the hand of one, the one in whose hands it is has a stronger cause than the one in whose hands it is not: it is his with his oath if neither has a proof. If the one in whose hands it is not produces a proof, it is said to the holder, the equitable proof being the one that draws no benefit to itself by its testimony and repels nothing from itself: if the claimant's proof is stronger than the thing's being in your hand, a presence that may occur while you are not the owner, the property is the proof-producer's, by the strength of his cause over yours. If both produce the proof: you are equal in claim and in proof, and the holder has, by the presence in his hand, a stronger cause: the property is his by the strength of his cause; this is balanced upon the origin of analogy were there no sunna, and there is a sunna to that effect (al-Umm 6/236-237).

Imam al-Imrani: if they claim a thing in the hand of one and each produces a proof, judgment is given to the holder; so said Shurayh, an-Nakha'i, al-Hakam, Malik and Abu Thawr (al-Bayan 13/162-163). Abu Hanifa: if the claimant produces the proof, then the defendant wishes to produce a proof in opposition, it is examined: if it testifies to absolute ownership, or to ownership attached to a repeatable cause, as a dispute over vessels melted and recast a second and third time, or over a linen or wool garment unpicked then rewoven, his proof is not heard; if it testifies to ownership attached to a non-repeatable cause, as the dispute over the beast where the claimant's proof attests the beast is his, born in his ownership, and the defendant's that it is his, born in his ownership: here the proof of the one with no hand upon it takes priority over the holder's. Ahmad says: the proof of the one with no hand takes priority in every case. The proof of the holder's partisans: the two men disputed before the Prophet (peace and blessings of Allah be upon him) a beast, each producing a proof that it is his, born in his ownership, and the Prophet assigned the beast to the one in whose hand it is; and because each of the two has a proof, and one has strengthening by the hand, his proof is advanced, like two contradictory reports one of which is strengthened (al-Bayan 13/162-163).

In al-Mudawwana al-Kubra, on the two claiming the merchandise that is in the hand of one and both producing proof: if merchandise is in a man's hand, another claims it is his and produces proof, and the holder claims it and produces proof, whose is it? It is said: the one in whose hand it is, per Malik, if the two proofs are equal in uprightness. Ibn al-Qasim says: and the oath is upon him (al-Mudawwana al-Kubra 13/186-187).

Imam as-Sarakhsi (may Allah have mercy on him) says: a beast in a man's hand, claimed by another who attests it is his beast, bred by him, and produces proof thereof, the holder producing like proof: judgment is given to the holder by preference (istihsan); in strict analogy it would be given to the outsider, which is Ibn Abi Layla's view (may Allah have mercy on him). The basis is that each of the two aims at establishing ownership, becoming an adversary only by his claim of ownership for himself; but we preferred the report Abu Hanifa (may Allah have mercy on him) holds from al-Haytham, from a man, from Jabir ibn Abdallah (may Allah be pleased with him): a man claimed a she-camel before the Messenger of Allah (peace and blessings of Allah be upon him) against a man and produced proof that it is his she-camel, bred by him; the holder produced proof that it is his beast, bred by him; and the Messenger of Allah judged in favor of the one in whose hand it is. And because the hand of the proof-holder does not by itself indicate priority of ownership: he establishes by his proof what is not established, and must proceed by the apparent of his hand; his proof is therefore accepted, then strengthened by his hand (al-Mabsut 17/64; al-Lubab 2/422-423). The Hanbalis finally: if the thing is in the hand of one and each has a proof, the claimant's proof, who is the outsider, is heard, and judgment is given for him.

The witness and the oath

On women's testimony: in the absence of men and without necessity, for rights that are not property, the need is repelled by men's testimony; hence it was not made an argument in the chapter of fixed punishments and retaliation, nor an argument of women alone in what men do not perceive (al-Mudawwana al-Kubra 5/44-45 and 12/139; Sharh Sahih al-Bukhari 8/22; al-Kafi 1/469; al-Ishraf 5/54-55 no. 1817; al-Hawi al-Kabir 17/9; al-Muhadhdhab 2/333; al-Bayan 13/330-331; al-Mughni 10/156-157; al-Insaf 12/79-80; Manar as-Sabil 3/512-513). From Imam Ahmad is reported a narration on marriage, marital reinstatement and emancipation: the testimony of a man and two women is accepted therein (al-Mughni 10/156-157; al-Insaf 12/80).

The jurists differed on the ruling of testimony by witness and oath: the right-holder swears with his witness and obtains his right; is it accepted? The majority of jurists, Malikis, Shafi'is and Hanbalis: every right established by a witness and two women is established by a witness and the oath: the right-holder swears with his witness and obtains his right; if he refuses to swear, the defendant is made to swear: if he swears, the right falls from him; if he refuses, the right is established upon him for its holder. This only occurs in property specifically: it occurs in none of the fixed punishments, nor in marriage, nor divorce, nor theft, nor false accusation. Proof of its permissibility, what Abu Hurayra reported:

The Prophet (peace and blessings of Allah be upon him) judged by the oath with the witness.Abu Dawud 3610; at-Tirmidhi 1343; Ibn Majah 2368; Ibn Hibban 5073 (authentic hadith)

The Prophet (peace and blessings of Allah be upon him) judged by the oath with the witness.at-Tirmidhi 1344; Ibn Majah 2369 (authentic hadith), from Jabir

The Messenger of Allah (peace and blessings of Allah be upon him) judged by the witness and the oath.Ibn Majah 2370 (authentic hadith), from Ibn Abbas

Imam Ibn Abd al-Barr (may Allah have mercy on him), after mentioning a number of hadiths on the subject: we have only mentioned in this chapter the reports elevated to the Prophet; were we to mention the chains of those who judged so among the Companions, the Successors and the scholars of the Muslims, it would be long. Those whose judgment by the oath with the witness is explicitly reported among the Companions: Abu Bakr, Umar, Uthman, Ali, Ubayy ibn Ka'b and Abdallah ibn Umar, though there is weakness in the chains reported from them: we do not mention them as proof, for proof is already binding by the established sunna, which needs no one to follow it: whoever contradicts it is refuted by it. No Companion is reported to have denied the oath with the witness; they held the contrary saying. The majority of the Successors in Medina held it: Sa'id ibn al-Musayyib, Abu Salama ibn Abd ar-Rahman, al-Qasim ibn Muhammad, Urwa, Salim, Abu Bakr ibn Abd ar-Rahman, Ubaydallah ibn Abdallah, Kharija ibn Zayd, Sulayman ibn Yasar, Ali ibn al-Husayn, Abu Ja'far Muhammad ibn Ali, Abu az-Zinad and Umar ibn Abd al-Aziz; the saying of none of these differed, except Urwa, from whom it differed; likewise it differed from Ibn Shihab: Ma'mar said: I asked az-Zuhri about the oath with the witness; he said: this is something the people innovated, two witnesses are indispensable; and it is reported from him that the first time he took the judgeship he judged by witness and oath. Holding it: Malik and his companions, ash-Shafi'i and his followers, Ahmad ibn Hanbal, Ishaq ibn Rahawayh, Abu Ubayd, Abu Thawr, Dawud ibn Ali and the group of the people of hadith; it is the one whose disagreement I see as impermissible, for the succession of reports from the Prophet (peace and blessings of Allah be upon him), and the people of Medina practiced it generation after generation. Malik (may Allah have mercy on him) said: judgment by the oath with the witness holds in all lands, and he needed no other issue in his Muwatta; his saying did not differ on judgment by the oath with the witness, nor that of any of his companions in Medina, Egypt and elsewhere; the Malikis of every land know no other position of their school, except with us in al-Andalus: Yahya ibn Yahya abandoned it, claiming he had not seen al-Layth ibn Sa'd give fatwa by it nor hold it; Yahya contradicted Malik therein, even though he contradicts the sunna and the practice of the Abode of Hijra. Malik used to say: judgment by the pledge (al-'uhda) regarding slaves holds only in Medina specifically, or against the one who stipulated it; and one judges by the oath with the single witness in every land. Ash-Shafi'i (may Allah have mercy on him) devoted a book to it, setting out the proof against whoever rejects it, and his companions increased the demonstration further. Abu Hanifa and his companions, ath-Thawri and al-Awza'i said: no judgment by the oath with the single witness; it is the view of Ata', al-Hakam ibn Utayba and a group. Ata' claimed the first to judge by it was Abd al-Malik ibn Marwan: this is an error and a conjecture availing nothing against the truth; one who negates in ignorance is not like one who affirms in knowledge: we have mentioned those we named of the Companions and Successors, and none of them reports knowledge of it from Abd al-Malik ibn Marwan (at-Tamhid 2/153-154; al-Istidhkar 7/111; see also al-Muwatta 2/721-722; Sharh Sahih al-Bukhari 8/59-60; al-Ishraf 5/44-45; al-Hawi al-Kabir 17/68-70; al-Bayan 13/338-339).

Ibn Qudama (may Allah have mercy on him) says: most people of knowledge see the establishment of property for its claimant by witness and oath; it is reported from Abu Bakr, Umar, Uthman and Ali (may Allah be pleased with them), and it is the saying of the seven jurists of Medina, Umar ibn Abd al-Aziz, al-Hasan, Shurayh, Iyas, Abdallah ibn Utba, Abu Salama ibn Abd ar-Rahman, Yahya ibn Ya'mur, Rabi'a, Malik, Ibn Abi Layla, Abu az-Zinad and ash-Shafi'i. Ash-Sha'bi, an-Nakha'i, the partisans of reasoned opinion and al-Awza'i said: no judgment by witness and oath. Muhammad ibn al-Hasan said: whoever judges by witness and oath, I overturn his judgment, for Allah said: "And take as witness two witnesses from among your men; and if there are not two men, then a man and two women" (al-Baqara 2:282): whoever adds to that adds to the text, and addition to the text is abrogation; and because 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": he confined the oath to the defendant's side, as he confined proof to the claimant's side.

Reply: what Suhayl reports from his father, from Abu Hurayra: "The Messenger of Allah (peace and blessings of Allah be upon him) judged by the oath with the single witness", reported by Sa'id ibn Mansur in his Sunan and by the imams of the sunan and musnad collections. At-Tirmidhi said: a good, singular hadith; and in the chapter there are Ali, Ibn Abbas, Jabir and Masruq. An-Nasa'i said: the chain of Ibn Abbas's hadith on the oath with the witness is a solid chain. And because the oath is legislated for the one whose truthfulness appeared and whose side is strong: hence it is legislated for the possessor, strong by his hand, and for the denier, strong by the principle of his liability's discharge; now the claimant here has manifested his truthfulness: the oath must therefore be legislated for him. Their argument from the verse is invalid: the verse indicates the legislation of the two witnesses and of the witness with two women, which is not disputed. Their saying that addition to the text is abrogation is incorrect: abrogation is removal, while addition to a thing confirms it and does not remove it; judgment by witness and oath neither prevents nor removes judgment by two witnesses. The verse concerns the taking of testimony, not its delivery in court: "if one of the two errs, the other reminds her" (al-Baqara 2:282), and the dispute concerns delivery. Their hadith is weak and not for restriction: the oath is legislated for the depositary claiming return or loss of the deposit, for the trusted ones, for the husband who impugns his wife by mutual imprecation, in the qasama, and for seller and buyer who differ over the price while the merchandise stands. As for Muhammad's saying on overturning the judgment of whoever judges by witness and oath, it entails overturning the judgment of the Messenger of Allah (peace and blessings of Allah be upon him) and of the caliphs who judged by it; yet Allah said: "No, by your Lord, they will not believe until they make you judge of what disputes arose between them, then find in themselves no constraint from what you judged, and submit in full submission" (an-Nisa 4:65); and the judgment of Muhammad ibn Abdallah (peace and blessings of Allah be upon him) is worthier than that of Muhammad ibn al-Hasan, who contradicts him.

The judge, reported by Ibn Qudama, said: it is permissible to swear upon what testimony is not admissible for: like one finding, in his own handwriting, a debt owed by someone, knowing of himself that he writes only truth, having forgotten it; or finding in his father's registers, in his hand, a debt owed by someone, knowing the father's trustworthiness and that he writes only truth: he may swear upon it, he may not testify to it. Likewise, if a reliable man informs him of his father's right and he relies on it: he may swear, not testify. Ash-Shafi'i said likewise. The difference between oath and testimony is twofold: testimony is for another, and it is possible the right-holder forged the handwriting, which is not conceivable in what he swears to, the right belonging to the swearer: none forges against himself; then, what a man writes of his rights is abundant, he forgets some of it, unlike testimony. In every place where witness and oath are accepted, no difference whether the claimant be Muslim or disbeliever, upright or immoral, man or woman: Ahmad's text; for the one for whom the oath is legislated does not change in ruling with these descriptions, like the denier when there is no proof. Ahmad said: the sunna has passed to judge by the oath with the single witness; if he refuses to swear, the defendant is made to swear: it is the saying of Malik and ash-Shafi'i, reported also from Ahmad; if the defendant refuses to swear, the right is established upon him (al-Mughni 10/158-159). Ibn al-Qayyim (may Allah have mercy on him) says: judgment by witness and oath is the school of all the hadith jurists and the jurists of the metropolises, with the exception of Abu Hanifa and his companions (at-Turuq al-Hukmiyya p. 113).

The Hanafis: no judgment by witness and oath; two witnesses, or a witness and two women, are indispensable, per Allah's word: "And take as witness two witnesses from among your men; and if there are not two men, then a man and two women from among those you approve as witnesses" (al-Baqara 2:282). The command "take as witness" comprises the attestation of the debt contracts whose mention the discourse began with, and comprises their establishment before the judge, and the judge is bound to act by it, the word bearing both senses. The aim of attesting a contract being its establishment upon denial, the verse necessarily comprises seeking the testimony of the two witnesses or of the man and two women upon the contract before the judge, and obligating him to judge by it. The text's apparent entails obligation, for it is a command, and Allah's commands are for obligation: Allah made binding upon the judge to judge by the mentioned number, like "strike them with eighty strikes" (an-Nur 24:4) and "strike each of them a hundred strikes" (an-Nur 24:2), where one may not rest content with less than the mentioned number; likewise one may not rest content with less than the mentioned number for testimony, and permitting less contradicts the Book, like one permitting the slander penalty to be seventy or fornication ninety: he would contradict the verse.

The verse embraces two things regarding the witnesses: the number and the attribute, freedom and approval, per "from among your men" and "from among those you approve as witnesses": since the required attribute cannot be dropped, neither can the number, the verse requiring the fulfillment of both in executing judgment by it: number, uprightness and approval; and the number is worthier of consideration than uprightness and approval, for the number is known with certainty, while uprightness is established only by the apparent, not by reality. Allah, wishing precaution in accepting women's testimony, made the testimony of two women binding: "if one of the two errs, the other reminds her", then: "that is more equitable with Allah, more upright for testimony, and less likely that you doubt" (al-Baqara 2:282): He thereby removed the causes of suspicion, doubt and forgetfulness; now accepting the claimant's oath and judging for him by a single witness is judging contrary to what was commanded of precaution, foresight and removal of doubt and suspicion, while accepting his oath carries the greatest doubt and suspicion, contrary to the verse's requirement. And "from among those you approve as witnesses" indicates invalidity: the single witness is known not to be accepted nor intended by the verse; and the claimant's oath cannot bear the witness's liability, nor be approved for what he claims for himself: judgment by a single witness and his oath thus contradicts the verse in these aspects, and removes what was intended in the matter of testimonies: precaution and certainty. And the Prophet's saying (peace and blessings of Allah be upon him): "The proof is upon the claimant and the oath upon the defendant" distinguishes oath from proof: the oath cannot therefore be a proof, else it would be like saying: proof is upon the claimant and proof is upon the defendant; and "proof" is a name of the genus embracing all beneath it: there is no proof but it is upon the claimant, so the oath cannot be upon him; and proof being an overall term falling on various meanings, with agreement that the two witnesses and the witness with two women are intended by this report, it is as if it said: the two witnesses, or the witness and the two women, upon the claimant: one may not rest content with less (Ahkam al-Quran 2/247-249; Mukhtasar Ikhtilaf al-Ulama 3/343; Bada'i as-Sana'i 6/225).

Imam Ibn Rushd (may Allah have mercy on him) says: as for judgment by the oath with the witness, they differed. Malik, ash-Shafi'i, Ahmad, Dawud, Abu Thawr, the seven Medinan jurists and a group: judgment by the oath with the witness in property. Abu Hanifa, ath-Thawri, al-Awza'i and the majority of the Iraqis: no judgment by the oath with the witness in anything; so too al-Layth among the companions of Malik. The cause of the disagreement in this chapter is the contradiction of transmissions. The partisans rely on many reports: the hadith of Ibn Abbas, of Abu Hurayra, of Zayd ibn Thabit and of Jabir; but the one Muslim extracted among them is Ibn Abbas's hadith, whose letter is: "The Messenger of Allah (peace and blessings of Allah be upon him) judged by the oath with the witness": Muslim extracted it and al-Bukhari did not. Malik relied on his mursal report from Ja'far ibn Muhammad, from his father: the Messenger of Allah (peace and blessings of Allah be upon him) judged by the oath with the witness, for acting upon mursal reports is binding per him. As for the contrary transmission, it is Allah's word: "if there are not two men, then a man and two women from among those you approve as witnesses" (al-Baqara 2:282): it entails, they said, restriction, so addition upon it is abrogation, and the Quran is not abrogated by a non-mass-transmitted sunna; for the opponent, it is not abrogation but an addition not changing the ruling of what it is added to. As for the sunna, what al-Bukhari and Muslim extracted from al-Ash'ath ibn Qays:

There was between me and a man a dispute over some property; we brought our dispute before the Prophet (peace and blessings of Allah be upon him), and he said: "Your two witnesses, or his oath." I said: "Then he will swear and not care." The Prophet said: "Whoever swears an oath by which he appropriates the property of a Muslim while he is perfidious therein will meet Allah angry with him."al-Bukhari and Muslim

They said: this, from him (peace and blessings of Allah be upon him), is a restriction of the judgment and an invalidation of the proof of each of the two adversaries, and it is not possible of him that he not fulfill all the divisions of proof for the claimant.

Two women witnesses with the oath

Those who judged by the oath with the witness follow their principle that the oath is the proof of the stronger of the two litigants in presumption: here the claimant's proof is strengthened by the witness, as it is strengthened in the qasama (Bidayat al-Mujtahid 2/350). Ibn Hubayra (may Allah have mercy on him) reports agreement that judgment by witness and oath is not valid outside property and its rights; then they differed over property and its rights: Malik, Ahmad and ash-Shafi'i: valid; Abu Hanifa: not valid (al-Ifsah 2/418-419).

The jurists who accept witness and oath differed: is judgment given by the oath with two women, or only with the male witness? The Malikis: judgment by two women with the oath is permissible, for the two women were set in place of the man in property: "if there are not two men, then a man and two women" (al-Baqara 2:282); if judgment by the man's testimony with the oath is permissible, so is judgment by two women's testimony with the oath; they are treated like the single witness in property matters; and it is a cause acting upon judgment by which the claimant's proof is strengthened: he may therefore swear with it, and its origin is the single witness (al-Ishraf 5/46 no. 1809; Bidayat al-Mujtahid 2/350; Jami' al-Ummahat p. 477).

The Shafi'is and the Hanbalis: the testimony of two women with the claimant's oath is not accepted, for proof over property, empty of any man, is not accepted, just as four women testifying together are not accepted, women alone not being accepted therein. And what they advance is annulled by this form: were the two women to stand in the man's place in every respect, four women would suffice in place of two men, and a man with two women would be accepted outside property. And two women's testimony is weak, strengthened by the man, and the oath is weak: weak is added to weak, and it is not accepted (Rawdat at-Talibin 7/433; al-Mughni 10/159; al-Insaf 12/115; Mata'lib Uli an-Nuha 6/632; Manar as-Sabil 3/514).

Ibn al-Qayyim (may Allah have mercy on him) says: judgment by two women's testimony and the claimant's oath, in property and its rights, is the school of Malik and one of the two views in Imam Ahmad's school, which our shaykh reported and chose. The apparent of the Quran and the apparent of the Sunna indicate the soundness of this view: Allah set the two women in place of the man, and the Prophet (peace and blessings of Allah be upon him) said in the authentic hadith: "Is not the woman's testimony like half the man's testimony? They said: yes." This indicates, by its literal sense, that her testimony alone is worth half, and, by its implied sense, that her testimony with her like is worth the man's testimony. Nothing in the Quran, the Sunna or the consensus prevents it: sound analogy rather requires it, for if the two women stand in the man's place when with him, they stand in his place when not with him, the acceptance of their testimony not resting on the meaning of the man, but on a meaning within them.