Islamic Fiqh > Financial transactions > Sulh (amicable settlement) > Who swears first when buyer and seller disagree
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Updated on 26 September 2026 at 7:12 PM
This part belongs to the full section: All sections of this part.
This chapter of the fiqh encyclopedia deals with the disagreement that arises between buyer and seller after the contract, whether over the price, the merchandise, its taking of possession, or the payment term. It sets out the rule of the oath and which of the two must swear first, then the effect of mutual rescission by reciprocal swearing. It then covers the iqala, the amicable rescission of a sale, and then the sulh, the amicable settlement: its legal status, its rules, its causes of annulment, the mandate for concluding it, and its application between partners and between heirs.
The starting rule is the following hadith.
The proof is upon the claimant, and the oath is upon the one who denies.Authentic hadith
Its application: the seller claims a sale at 10 which the buyer denies, and the buyer claims a sale at 9 which the seller denies; a sale at 9 is not a sale at 10, so the oath is prescribed for both of them.
The Shafi'is, in the most apparent view, and the Hanbalis, in the madhhab, have the seller swear first: 'I sold it to you at such a price, and I only sold it at such a price.' If the buyer wishes, he takes the merchandise at the price stated by the seller; otherwise the buyer swears in turn: 'I only bought it at such a price, and I only bought it at such a price.'
Another Shafi'i view has the buyer begin: the seller claims an increase of price against him, and the default is innocence of liability; and because the merchandise is in his possession, his side is stronger.
A third view: the two are equal, each being claimant and defendant at once, so no preference applies; the judge chooses which of the two to begin with. It has also been said that lots are drawn between them, as if both were present together, beginning with the one whose lot comes out.
A Maliki view holds that the word is the buyer's with his oath: the seller claims an increase which the buyer denies, and the word is the word of the one who denies.
In a narration from Imam Ahmad, the word is the seller's, or the two rescind the sale by mutual consent, in reference to the preceding hadith.
After reciprocal swearing, each of the two contracting parties has the right of rescission if one does not accept the other's word, by the hadith of Abdallah ibn Masud, traced to the Prophet.
If the two parties to a sale disagree and there is no proof between them, the word is that of the owner of the merchandise, or they rescind the sale.Narrated by Ahmad, Abu Dawud, al-Nasa'i and Ibn Majah
A version adds: 'and the sale stands as it is', and Ahmad's narration has: 'and the merchandise remains as it is'; another wording says: 'they swore against each other'. The hadith is authentic except for that last wording, and it has six chains of transmission.
The contract is not dissolved by the reciprocal swearing itself according to the Hanbalis in the madhhab: it is a valid contract, and their dispute and contradiction do not dissolve it, just as if each of them established proof of his claim. But if one accepts his companion's word, or one swears and the other retracts after swearing, the contract is confirmed between them.
If neither accepts, each has the right of rescission without a judge's ruling according to the Shafi'is in the madhhab, the Hanbalis in the madhhab, and one Maliki view, by the Prophet's words 'or they rescind the sale', whose apparent meaning is their independence in doing so. In the incident behind the hadith, Abdallah ibn Masud sold a slave girl among the governor's slaves to al-Ash'ath ibn Qays. Abdallah said: 'I sold her to you for 20,000.' Al-Ash'ath said: 'I bought her from you for 10,000.' Abdallah said: 'I heard the Messenger of Allah say: if the two sellers disagree, there is no proof between them, and the merchandise stands as it is, the word is the seller's, or they rescind the sale,' and he added: so I rescind the sale. For it is a rescission to remedy an injustice, closer to the return for defect.
The Malikis, and the Shafi'is in one view which is also a position of the Hanbalis, hold that mere reciprocal swearing does not dissolve the contract: a judge's ruling is required. For it is a rescission on which ijtihad is exercised, so neither rescinds for the other; and because the contract is valid while one of the two is an oppressor; the judge dissolves it because confirming it in judgment has become impossible, resembling the marriage of a woman given away by two guardians where the first is disregarded.
When the contract is rescinded, the rescission takes effect outwardly before the people and inwardly before Allah, according to the Malikis, the Hanbalis in the madhhab, and the Shafi'is in one position; for it is a rescission to remedy an injustice, like the return for defect or the rescission by reciprocal swearing; it therefore occurs outwardly and inwardly, like rescission by li'an, and the seller may dispose of the merchandise in every manner of disposal, even if he is in fact the oppressor.
The Shafi'is, in one position, and the Hanbalis, in one view, say: if the seller is the oppressor, the contract is not dissolved inwardly, for he could have confirmed the contract and obtained his right; it is therefore not dissolved inwardly and he may not dispose of the merchandise, being a usurper. If the buyer is the oppressor, the sale is dissolved outwardly and inwardly, because the seller is unable to obtain his right; rescission is therefore granted him, as if the buyer had become insolvent.
A third Shafi'i position: it is never dissolved inwardly. Ibn Qudama said: this is corrupt; for were it known that it is never dissolved inwardly, its outward rescission would not be permitted: neither of the two may dispose of what reverted to him through rescission, and once he knows it is forbidden he is prevented from it. The Lawgiver granted the wronged party of the two rescission outwardly and inwardly, so it is dissolved inwardly by his rescission, like the return for defect (al-Mughni 4/136, 138).
Ibn Qudama continues: the stronger view is that if the truthful one of the two rescinds, the contract is dissolved outwardly and inwardly. If the liar rescinds knowing his lie, the rescission has no effect with respect to him, for it is not lawful for him: his ruling is not established with respect to him, but it is established with respect to his companion, who may dispose of what reverted to him, since the Law made it revert to him without aggression on his part; like merchandise returned to him on a defect claim when there is no defect in it.
All of this when the merchandise still exists. When it is lost, the Malikis say: the buyer is believed on oath if he claims the more probable view, whether or not it resembles the seller's, and the seller is bound by what the buyer says. If the seller alone claims the more probable view, the word is his with an oath, and the buyer is bound by what he said. If neither renders his claim probable, they both swear and the sale is rescinded: the merchandise's value on the day of its sale is returned if it is appraisable, or its like if it is fungible; their retraction after swearing counts as their oath, and judgment is given for the one who swore against the one who retracted.
The Shafi'is say: if the merchandise left his ownership, the value of the day of its destruction binds him, in the most apparent view, if it is appraisable and that value exceeds its price; or its like if it is fungible; if it has a defect, it is returned together with its defect compensation (arsh).
It has been said: the value of the day of taking possession binds him, for that is the value of the day it entered his liability. It has been said: the lesser of the two values, that of the day of contract and that of the day of possession. It has been said: the top of the range from the value of the day of possession to the value of the day of destruction; for his hand is a hand of liability, and the highest value is the one taken into account.
The Hanbalis in the madhhab say: if the merchandise for which the sale was rescinded after reciprocal swearing has perished, liability is by reference to the value of its like, unless the buyer chooses to pay the price according to the seller's word.
If they disagree over the description of the destroyed merchandise, the seller saying for example that the slave was a scribe and the buyer denying it, or over the amount of the sale, the word is the buyer's in one view, for he is the one under liability; by the Prophet's words in the hadith: 'and the merchandise stands', from which it is understood by implication that reciprocal swearing is not prescribed when it has perished. And because the two agreed on transferring the merchandise to the buyer and on entitlement to 9 in its price, then differed over a single surplus unit which the seller claims and the buyer denies, while the word is the denier's. The abandonment of this analogy when the merchandise stands is due to the hadith concerning it; beyond that, the analogy remains.
If the two swore reciprocally in a lease (ijara) and it is rescinded after the term expires, the wage of the similar is due; during the term, pro rata.
One Hanbali view holds that they swear reciprocally as if the merchandise existed; this is the view of al-Shafi'i and one of the two narrations from Malik, as Ibn Qudama relates; it was discussed earlier.
Does the contract dissolve, outwardly and inwardly, upon mutual rescission? When the contract is rescinded after reciprocal swearing, it is dissolved outwardly and inwardly with respect to each of the two, like the return for defect. All of this when neither has proof, or when both have proofs that conflict, in that they did not date them with two dates; if one of the two has proof, it is applied.
The Hanafis say: if the two contracting parties disagree, the buyer claiming a price and the seller a greater one, or the seller admitting a quantity of the merchandise and the buyer claiming more, and one of them establishes proof, judgment is given for him by it. If both establish proof, the proof establishing the increase is stronger: the establisher of the increase is a claimant and its denier a denier, and proof belongs to the claimant, there being no proof for the denier, since proofs serve establishment.
If neither of the two has proof, the buyer is told: either accept the price the seller claims, or we rescind the sale; and the seller is told: either deliver what the buyer claims of the merchandise, or we rescind the sale. If they do not agree, the judge administers the oath to each over the other's claim, each being a claimant against his companion and the other a denier; he begins with the buyer's oath: this is Muhammad's view and Abu Yusuf's other view, which is the sound one and the apparent meaning of the narration, since the buyer is the stronger of the two in denial, being first demanded the price. When they have both sworn, the judge rescinds the sale between them if they request it; without the request it is not rescinded, on the sound view. Some said: it is dissolved by the reciprocal swearing itself, for once they have sworn against each other there is no benefit in the contract remaining, so it dissolves.
If one of the two retracts from the oath, the other's claim becomes binding on him, for he is treated as the one who acted, and his claim no longer counters the other's.
All of this when the merchandise stands unchanged. If it has changed and they disagree over the amount of the price, the change is either toward increase or toward decrease. If toward increase: if the increase is attached and generated from the original, like fat on the animal, it prevents reciprocal swearing according to Abu Hanifa and Abu Yusuf; according to Muhammad it does not prevent it, and the buyer returns the object itself; for in their view this increase prevents rescission in exchange contracts, and thus prevents reciprocal swearing, while in his view it does not prevent rescission, and thus does not prevent reciprocal swearing.
If the increase is attached but not generated from the original, like dye on cloth, construction and planting on land, it likewise prevents reciprocal swearing according to the two and not according to Muhammad; the buyer returns the value to the one who holds it, for this type of increase is like destruction; and destruction of the merchandise prevents reciprocal swearing according to the two, not according to Muhammad, and the buyer returns the increase.
If the increase is detached and generated from the original, like offspring, the defect compensation and gestation, the matter remains on this disagreement. If the increase is attached and not generated from the original, like a gift found within the acquired item, it does not prevent reciprocal swearing by consensus: they swear reciprocally, and the buyer returns the object itself, for this increase does not prevent rescission in exchange contracts, and thus does not prevent reciprocal swearing. Nor is it in the meaning of destruction of the object, so it does not prevent reciprocal swearing. When they have sworn reciprocally, the buyer returns the merchandise without the increase, and the increase belongs to him, for it occurred upon his ownership and it is lawful for him to keep it, since one cannot retract from it.
This when the merchandise changed toward increase. If it changed toward decrease in the buyer's hand, this is when the merchandise still exists. If it is destroyed, they do not swear reciprocally according to Abu Hanifa and Abu Yusuf: the word is the buyer's with his oath as to the amount of the price; if he swears, what he acknowledged binds him; if he retracts, his companion's claim binds him. According to Muhammad, they swear reciprocally and the buyer returns the value; if they disagree over the amount of the value, on his view the word is the buyer's with his oath as to the amount of the value.
The core of the issue: does destruction of the merchandise prevent reciprocal swearing? According to the two (Abu Hanifa and Abu Yusuf), it prevents; according to Muhammad, it does not. He argued by the Prophet's words: 'When the two parties to a sale disagree, they swear against each other and rescind': he established reciprocal swearing absolutely, without the condition of the merchandise standing. The two argue by the famous hadith, the Prophet's words: 'and the oath is upon the one who denies': reciprocal swearing remains, that is, swearing from both sides after taking possession of the object of the contract; for the Prophet made the genus of oath obligatory upon the genus of deniers: were an oath to fall upon one who is not a denier, the genus of the oath would not be upon the genus of deniers, and this would contradict the text. The denier after taking possession is the buyer, for the seller claims against him an increase of price and he denies it.
As for denial from the seller's side, it is because the buyer claims nothing against him; it would follow that reciprocal swearing is not obligatory when the merchandise stands either, except that the Prophet specified it with a particular restrictive text: 'When the two parties to a sale disagree and the merchandise stands as it is, they swear against each other and rescind.' This condition is established in the other text as well by indication, for he said 'and rescind', and mutual rescission occurs only while the merchandise stands; reciprocal swearing upon destruction of the merchandise therefore remains established by the famous report.
Destruction of all of the merchandise and of part of it are equal in preventing reciprocal swearing originally, according to Abu Hanifa. According to Abu Yusuf, destruction of the merchandise prevents reciprocal swearing for the amount of the destroyed part only. According to Muhammad it does not prevent at all, even if one bought two slaves, took possession of them, then one of them died and they disagreed over the amount of the price: the word is the buyer's according to Abu Hanifa, and they do not swear reciprocally unless the seller agrees to take the living slave and nothing from the price of the one that died; then they swear reciprocally. According to Abu Yusuf they do not swear reciprocally over the one that died: the word is the buyer's for the share of the deceased; they swear reciprocally and rescind over the living one. According to Muhammad, they swear reciprocally over both, and he returns the value of the one that died.
Sources: Bada'i' al-Sana'i' (6/259, 263), al-Jawhara al-Nayyira (6/125, 127), al-Ikhtiyar (2/143, 145), Khulasat al-Dala'il (4/94, 97), al-Lubab (2/433, 435), Tabyin al-Haqa'iq (4/306, 307), al-'Inaya (11/305, 307), al-Bahr al-Ra'iq (7/218, 220), al-Kafi (1/336, 337), Tahbir al-Mukhtasar (4/25, 27), Hashiyat al-Dasuqi with al-Sharh al-Kabir (4/302, 305), Sharh al-Khalil (5/195, 196), al-Fawakih al-Dawani (2/228), Hashiyat al-Sawi (7/110), Mawahib al-Jalil (6/366, 367), al-Qawanin al-fiqhiyya (1/164), Rawdat al-Talibin (3/215, 224), Mughni al-Muhtaj (2/578, 582), Nihayat al-Muhtaj (4/183, 195), Kanz al-Raghibin (2/600, 606), al-Dibaj (2/134, 139), al-Mughni (4/134, 138), al-Kafi (2/104, 106), Sharh al-Zarkashi (2/78, 80), al-Mubdi' (4/110, 112), al-Furu' (4/93-99), al-Insaf (4/452, 453), Kashshaf al-Qina' (3/274, 279), Sharh Muntaha al-Iradat (3/224, 230), Matalib Uli al-Nuha (3/134, 135).
If the two contracting parties agree on the sale but disagree over the nature of the price, while the country has several currencies in circulation: the seller says for example 'I sold it to you for 100 dollars', and the buyer: 'Rather for 100 Turkish liras'; or the seller: 'I sold it to you in full-weight coin', and the buyer: 'Rather in debased coin'; or the seller: 'I sold it to you for gold', and the buyer: 'Rather for silver'; and neither of the two has proof, the jurists have differed over two views.
Al-Mawsili related in al-Ikhtiyar the Hanafi position, while al-Kasani elaborated further. If the two disagree over the genus of the price, one saying it is a specified object and the other a debt: if the claimant of the object is the seller, saying to the buyer 'I sold you my slave girl for this slave of yours', and the buyer answering 'I bought her from you for 1,000 dirhams', then if the slave girl stands they swear reciprocally and rescind, by the Prophet's words: 'When the two parties to a sale disagree and the merchandise stands, they swear against each other and rescind', without distinction between disagreement over the amount of the price and disagreement over its genus. If she has perished in the buyer's view, they do not swear reciprocally according to Abu Hanifa and Abu Yusuf, and the word is the buyer's as to the price with his oath; according to Muhammad they swear reciprocally: this is the issue of the merchandise's destruction, already covered.
If the claimant of the object is the buyer, saying 'I bought your slave girl for this slave of mine', and the seller answers 'I sold her to you for 1,000 dirhams or 100 dinars', then if the girl stands they swear reciprocally by the text; and if she has perished they likewise swear reciprocally by consensus, and the buyer returns the value. On Muhammad's original view this is apparent, for destruction of the merchandise does not prevent reciprocal swearing in his view; and on the two others' original view because the imposition of the oath upon the buyer is apparent as well: the seller claims against him the girl's price of 1,000 dirhams and he denies it. As for the imposition of the oath upon the seller, it is because the buyer claims against him the delivery of the object and he denies it: each of the two is thus a claimant from one side and a denier from the other, and they swear reciprocally (Bada'i' al-Sana'i' 6/261).
The Malikis, Shafi'is and Hanbalis, in one view, hold that the two swear reciprocally: each swears to negate his companion's word and affirm his own, beginning with the negation, saying: 'I did not sell it to you at such a price, and I did sell it at such a price.' If they swear reciprocally, the ruling and the disagreement are those already set out for disagreement over the amount of the price, according to the earlier elaboration proper to each madhhab.
The Hanbalis in the madhhab say: if the contracting parties differ over the nature of a price they agreed to name in the contract, and one of them claims it, the currency of the land is taken if there is only one currency there, and judgment is given for the claimant, applying the contextual indication. If the land has currencies of differing circulation, the most widely circulated is taken, for the contract most probably took place with it, given its prevalence. If the currencies are equal in circulation, the middle one settles the two rights, for departing from it inclines toward one of them; the oath is then upon the claimant of the currency of the land, or the most circulated, or the middle one.
If the two contracting parties agree on the sale but disagree over the term, the buyer saying 'I bought it deferred' and the seller denying it: if one of the two has proof, it is applied, according to the majority of jurists. If neither has proof, the jurists have differed.
The Hanafis, and the Hanbalis in the apparent sense of the madhhab, say: the word belongs to whichever of the two denies the term, for the default is its absence; the word is therefore the denier's, as with the original contract, because he is a denier and the word is the denier's.
The Malikis say: the word belongs to whoever's word matches custom in selling goods: meat, vegetables, grains and many garments and the like are by custom paid immediately, while for a building the custom is deferred payment; such is the situation of the seller and the buyer.
If both words match custom together, in that the custom for that merchandise is sale sometimes on credit and sometimes not, they swear reciprocally and the sale is rescinded if the merchandise stands; the buyer is believed on oath, and the word is his with his oath if the term has lapsed.
If they disagree over the term's expiration while agreeing upon the term itself, as when the seller claims on the first of Sha'ban that the term is one month beginning in Rajab and has lapsed, while the buyer claims it began in mid-Rajab so that it has not lapsed, or that it is two months: the word belongs to the denier of the expiration, and to his denial of expiration on oath, if his word resembles people's habit concerning the term, whether it resembles the other's more or less, whether he is seller or buyer, lessor or lessee; the absence of proof being assumed. If one of the two has proof, it is applied; if each has a proof supporting his claim, the one earlier in date is applied.
If neither renders his word probable, each swears to negate his opponent's claim while affirming his own, and judgment is given for the one who swore against the one who retracted; the sale is rescinded, and if the merchandise has perished the value is returned, otherwise the merchandise itself.
If seller and buyer disagree over taking possession of the price or the merchandise, the buyer saying 'I paid you the price' and the seller denying it, or the seller saying 'I delivered the merchandise to you' and the buyer denying it, and neither of the two has proof, the jurists have differed.
The Hanafis, Shafi'is and Hanbalis say: if seller and buyer disagree over taking possession of the merchandise, the seller saying 'you took it' and the buyer 'I did not take it', the word is the buyer's; for the seller claims against him the existence of possession, and thereby the fixing of the price, while he denies it; absence of possession is the default and existence an accident: the buyer holds to the default and the seller claims an accident, so the apparent testifies for the buyer, and the word is his with his oath. The same applies if he took possession of part of it and they disagree over the quantity taken: the word is the buyer's, for what we said. If they disagree over taking possession of the price, the buyer saying 'I paid it to you' and the seller 'I did not receive it', the word is the seller's, for the reason given concerning the merchandise.
The Malikis say: if they disagree over taking possession of the price after the merchandise was delivered, the buyer saying 'I paid you the price' and the seller denying it, or over taking possession of the merchandise, the seller saying 'I delivered it' and the buyer denying it: the default is their continued existence and non-possession; the word therefore belongs to whichever of the two claims its absence, with his oath, unless custom testifies otherwise: the word then belongs to the one whom custom supports, like the butcher, whose habit is not to cut the meat until he has received the price; if he claims, after handing over the meat, that he did not receive the price, the word is the buyer's, who affirms having paid it. It is known that custom varies with the variation of peoples.
Sources: Bada'i' al-Sana'i' (5/248), Tahbir al-Mukhtasar (4/29), Mawahib al-Jalil (6/367, 368), al-Sharh al-Kabir (4/308), Sharh Mayyara (2/41), Sharh al-Khalil (5/199), al-Fawakih al-Dawani (2/228), Hashiyat al-Sawi (7/119), al-Muhadhdhab (1/389), al-Sharh al-Kabir by al-Rafi'i (6/47), Rawdat al-Talibin (3/217), al-Mughni (4/121), Sharh al-Zarkashi (2/71), al-Mubdi' (4/99).
The iqala, in language, means lifting. In Law, it is the expression for the lifting of the contract: each of the two counter-values returns to its owner, the price to the buyer and the merchandise to the seller.
It is recommended after the sale for the regretful party, whether seller or buyer, by agreement of the jurists, by the hadith of Abu Hurayra traced to the Prophet.
Whoever grants an iqala to a Muslim, Allah will overlook his stumbles on the Day of Resurrection.Narrated by Abu Dawud (no. 3460), Ibn Majah (no. 2199) and Ahmad (2/252)
It is also prescribed because people need it as they need sale; and because it lifts the contract, so that it stands to the contract as divorce stands to marriage; and because the contract is the right of the two, they own its lifting to meet their need.
It consists in the two contracting parties saying 'we have mutually rescinded', or one of them saying 'I rescind the sale with you' and the other answering 'I accept', and similar formulas, according to the majority of jurists, against the Hanafi view, which will be set out. It is valid only by the mutual consent of the two contracting parties.