The seller's oath and the cheated buyer

The basic rule: proof then oath

The Prophet (peace and blessings be upon him) set the rule: the proof is upon the claimant and the oath upon the one who denies. Applied to the dispute over the price: the seller claims to have sold for ten and the buyer denies it; the buyer claims to have bought for nine and the seller denies it; the oath is prescribed to both.

Who swears first

Shafi'is (apparent view) and Hanbalis: the seller starts: "I sold it for such a price"; if the buyer accepts it, well, otherwise he swears: "I did not buy it for this price". A Shafi'i view: the buyer first, for the seller claims an addition and the principle is the absence of debt, and the goods are with the buyer, which strengthens his position. A third view: the two are equal, each being claimant and defendant, the judge chooses who starts or draws lots. Malikis: the word of the buyer with his oath, for the seller claims an addition that is denied and the word belongs to the denier. A narration from Ahmad: the word of the seller, or the rescission by mutual consent.

Rescission by mutual consent

"If the two partners disagree without proof, the word is that of the holder of the goods, or they rescind the contract."Ahmad ; Abu Dawud ; an-Nasai ; Ibn Majah

A reported addition specifies: the contract remains as it is. After the oath, each of the two may rescind if he does not accept the word of the other. Hanbalis: the mutual oath does not by itself break the contract, which remains valid; if there is agreement, or if one swears and the other stays silent, the contract is confirmed. Shafi'is and one Maliki view: each may rescind without a judgment, by the word of the hadith "or they rescind the contract".

Practical note

In case of disagreement over a price without proof, the prophetic way is simple: require the proof, otherwise the oath, and prefer rescission to stubbornness. These rules serve the judge as well as the friendly arbitration between merchants.