Islamic Fiqh > Judgment and testimony > Proof and the decisive oath (yamin al-qada)
Who brings proof and who swears? The distribution of burdens of proof in trial, the oath returned to the defendant and its conditions.
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Updated on 31 August 2026 at 3:55 AM
"The proof is upon the claimant and the oath upon the one who denies."al-Bayhaqi, as-Sunan al-Kubra 20990
The bayyina designates in law the testimony that reveals the truth of the claimant, from the verb to reveal: by the witnesses, the right is uncovered. Hanafis define the claimant: the one who is not compelled to plead if he abandons the case; and the defendant: the one who is compelled to it. Another definition: the claimant adds to himself what is not established, the defendant relies on what is established by possession; whoever claims a debt then claims to have paid it becomes the claimant of his discharge.
Sa'id ibn al-Musayyib said: "Whoever knows the claimant from the defendant no longer errs about what he judges between them: the claimant says: it was; the defendant says: it was not." Ibn Rushd the elder: the key of the trial is to distinguish the one charged with establishing the proof from the one made capable of the oath. If a proof exists for one of the two, judgment without known disagreement (Ibn Qudama).
Two persons claim an object which is in the hand of neither: Hanafis and Malikis: division; Hanbalis: drawing of lots, then the one whom the lot designates swears and receives, according to the hadith:
Two men disputed a property before the Prophet (peace and blessings be upon him) without proof for either of them; he said: "Draw lots between them for the oath, whether they like it or not."Abu Dawud 3616 ; Ibn Majah 2346 ; Ahmad
If each of the two establishes a proof over the same object (in a third party's hands or outside any hand): the two proofs cancel each other, for each proves ownership for its holder and an object does not belong to two in the same state; they fall as if they did not exist. Shafi'is: each of the two swears afterwards; Hanbalis: drawing of lots then oath.
The majority (Malikis, Shafi'is, Hanbalis): every right established by one witness and two women is established by one witness and the claimant's oath. If the claimant refuses to swear, the defendant swears: if he swears, the right falls; if he refuses, the right is established for the claimant. This applies to property only: not in the punishments, marriage, divorce, theft or the false oath.
Before filing a claim, gather the written or testimonial proof; failing that, the oath decides. Possession of the property plays in favor of the defendant: the claimant proves first.