Hadith 33 of Nawawi : « If people were given according to their claims, some men would… »

From Ibn 'Abbas that the Prophet (peace and blessings of Allah be upon him) judged, "the oath falls upon the defendant." And the wording with which the Cheikh cited it, Ibn as-Salah cites likewise in the global hadiths, and says: al-Bayhaqi reports it with a hasan chain. Al-Isma'ili reports it in his Sahih, from the narration of al-Walid ibn Mouslim: Ibn Jourayj informed us, from Ibn Abi Moulayka, from Ibn 'Abbas, that the Prophet (peace and blessings of Allah be upon him) said, "Were the people given according to their claims, some men would claim the lives and wealth of other people; but the proof falls upon the claimant, and the oath upon the defendant." Ash-Chafi'i reports: Mouslim ibn Khalid informed, from Ibn Jourayj, from Ibn Abi Moulayka, from Ibn 'Abbas, that the Messenger of Allah (peace and blessings of Allah be upon him) said, "The proof falls upon the claimant."

Ash-Chafi'i said: it seems to me, without asserting it, that he said, "and the oath upon the defendant." And Muhammad reports, from 'Omar ibn Loubaba the jurist of al-Andalus, from 'Outhman ibn 'Ayyoub al-'Andaloussi, described by virtue, from Ghazi ibn Qays, from Ibn Abi Moulayka, from Ibn 'Abbas, from the Prophet (peace and blessings of Allah be upon him). He mentions this hadith, and says, "but the proof falls upon whoever claims, and the oath upon whoever denies." And Ghazi ibn Qays: a great righteous Andalusian, having heard Malik, Ibn Jourayj and their generation. And Ibn Jourayj is dropped from this chain. Imam Ahmad and Abu 'Obayd argued that the Prophet (peace and blessings of Allah be upon him) said, "The proof upon the claimant, and the oath upon the denier." That indicates that this wording is authentic with them, as they argued by it. And in the sense, numerous hadiths.

In the two Sahihs, from al-'Ach'ath ibn Qays: there was between me and a man a dispute over a well, and we submitted to the arbitration of the Messenger of Allah (peace and blessings of Allah be upon him). The Messenger of Allah (peace and blessings of Allah be upon him) said, "Your two witnesses, or his oath." I said: then he will swear without caring? The Messenger of Allah (peace and blessings of Allah be upon him) said, "Whoever swears an oath stealing the wealth of another wrongfully meets Allah angry with him." Then Allah sent down, confirming that, and he recited this verse, "Those who exchange the covenant of Allah and their oaths for a paltry price," and the verse.

In a version of Mouslim, after his words "if he swears," "you have only that." And Mouslim reports it in the sense of the hadith of Wail ibn Houjr, from the Prophet (peace and blessings of Allah be upon him). At-Tirmidhi reports from the hadith of al-'Irzami, from 'Amr ibn Chou'ayb, from his father, from his grandfather, from the Prophet (peace and blessings of Allah be upon him) in his sermon, "The proof upon the claimant, and the oath upon the defendant." And he said: its chain is criticised, and al-Irzami is weakened in hadith for his memory. Ad-Daraqoutni reports from the narration of Mouslim ibn Khalid az-Zanji, with weakness, from Ibn Jourayj, from 'Amr ibn Chou'ayb, from his father, from his grandfather, from the Prophet (peace and blessings of Allah be upon him), "The proof upon the claimant, and the oath upon the denier, except in the qasama." And the hafiz scholars report it from Ibn Jourayj, from 'Amr ibn Chou'ayb, in mursal form.

And he reports also from the narration of Moujahid, from Ibn 'Omar, from the Prophet (peace and blessings of Allah be upon him) that he said in his sermon on the day of the Conquest, "The defendant is more worthy of the oath, save a proof standing." And at-Tabarani reports it. And with him, from 'Abdallah ibn 'Amr ibn al-'As, with discussion in its chain. Ad-Daraqoutni reports this sense by multiple channels, weak; and Houjaj as-Sawwaf reports, from Houmayd ibn Hilal, from Zayd ibn Thabit: the Messenger of Allah (peace and blessings of Allah be upon him) judged, "Any man claiming against a man a debt: the one claimed against is more worthy of the oath." Abu 'Obayd and al-Bayhaqi report it, its chain of reliable narrators, except that Houmayd ibn Hilal, I think, did not meet Zayd ibn Thabit. Ad-Daraqoutni reports it and added to it, "without witnesses."

An-Nasa'i reports the hadith of Ibn 'Abbas: two disputants came to the Prophet (peace and blessings of Allah be upon him) and one claimed a right against the other. The Prophet (peace and blessings of Allah be upon him) said to the claimant, "Bring your testimony." He said, "O Messenger of Allah, I have no testimony." He said to the other, "Swear by Allah, there is no god but Him: your wealth is upon him or with him."

It is reported from 'Omar that he wrote to Abu Moussa: the proof upon the claimant, and the oath upon the denier. And Zayd ibn Thabit judged likewise in the matter of 'Omar against 'Obbayy ibn Ka'b, and they did not oppose it. Qatada said: the wisdom of the speech given to Dawoud (peace be upon him) and to our Prophet, prayer and salvation upon him: the proof upon the claimant, and the oath upon the denier. Ibn al-Mounzir said: the people of knowledge are unanimous, the proof upon the claimant, and the oath upon the defendant.

The meaning of his words, "The proof upon the claimant, and the oath upon the defendant." He says: the meaning of "the proof upon the claimant" is that he merits by it what he claims, not that it be obligatory to take. And the meaning of "the oath upon the defendant" is that he is whitened by it, not that it be obligatory upon him in every case. End of his words.

The jurists of our companions and the Shafi'ites diverged over the interpretation of the claimant and the defendant. Some said: the claimant is the one who is acquitted and whose silence is taken among the two disputants; the defendant, the one not acquitted and whose silence is not taken. Others said: the claimant is the one who claims a hidden thing against the origin and the apparent, and the defendant its contrary.

Derivations

Upon that they built a question: if the two disbelieving spouses embrace Islam before consummation and then diverge, the husband saying, "we Islamised together: our marriage remains," and the wife saying, "but one of us preceded the other to Islam: the marriage is dissolved." If we say the claimant is the one who is acquitted and whose silence is taken, the wife is the claimant, and the word is that of the husband, the defendant, for he is not acquitted and his silence is taken. And if we say the claimant is whoever claims a hidden thing, the claimant here is the husband, for companionship in Islam contradicts the apparent, and the word is that of the woman, the apparent being with her.

As for the depositary claiming the loss, like the depositary claiming the loss of the deposit: it was said he is a claimant, for the origin contradicts his claim. And there was no need of proof, for the depositor entrusted it to him, and trust demands the acceptance of his word. It was said: the claimant requiring proof is the one claiming so that there be given according to his claim the wealth or blood of the people, as mentioned in the hadith; as for the depositary, he claims not to receive anything. It was said: he is rather defendant, for were he silent he is not left, but he must answer. And the depositor is claimant, for were he silent he is left; and if the depositary claims to have returned the deposit to his trustee, the majority holds his word accepted likewise, like the claim of loss. Al-'Awza'i said: his word is not accepted, for he is a claimant.

Malik and Ahmad, in a narration, say: if it is established that he received the deposit by proof, his word upon repayment is not accepted without proof. Some of our companions directed this: testifying to the repayment of rights established by proof is obligatory, leaving it is negligence entailing guarantee; why then do some of them say, in the repayment of the wealth of the orphan, that it needs proof, since Allah commanded testifying upon it: it would be obligatory.

The jurists diverged in this chapter into two opinions. The first: the proof upon the claimant always, and the oath upon the defendant always, the opinion of Abu Hanifa, approved by part of the jurists and traditionists such as al-Boukhari, applied to every claim, down to the qasama: they said none swears but the defendant, and held that one does not judge by witness and oath, for the oath is only to the defendant, and held that the oath is not returned to the claimant, for it is only to the side of the denying defendant. They argued the qasama by what Sa'id ibn 'Obayd reports: Bouchayr ibn Yasar al-'Ansari informed us, from Sahl ibn Abi Hathma, that he informed him that a group of them set out to Khaybar and dispersed there, and found one of them killed. He mentions the hadith, in which the Prophet (peace and blessings of Allah be upon him) said, "Do you bring me a proof of who killed him?"

They said: we have no proof. He said, "Then do they swear?" They said, "We accept not the oaths of the Jews." The Prophet (peace and blessings of Allah be upon him) disliked voiding his blood, and made the diya of a hundred she-camels of the sadaqa. Al-Boukhari reports it. Mouslim reported it in abridged form, without completing it. But this narration contradicts the narration of Yahya ibn Sa'id al-'Ansari, from Bouchayr ibn Yasar, from Sahl ibn Abi Hathma, mentioning the story of the slain man, and saying: they mentioned to the Messenger of Allah (peace and blessings of Allah be upon him) the murder of 'Abdallah ibn Sahl, and the Messenger of Allah (peace and blessings of Allah be upon him) said, "Fifty of you swear upon a man among them, and the diya of his slain one is paid." And this is the famous narration, established, reported with its complete wording in the two Sahihs.

The imam hafiz scholars mentioned that the narration of Yahya ibn Sa'id is more authentic than that of Sa'id ibn 'Obayd at-Ta'i: he is nobler, more memorising, more learned, Medinese, more learned of their hadiths than the Koufiens. Ahmad was opposed with the contradiction of Sa'id ibn 'Obayd to Yahya ibn Sa'id in this hadith; he waved his hand and said, "That is nothing: he reported it as the Koufiens say, and I go to the hadith of the Medinese, Yahya ibn Sa'id." An-Nasa'i said: we know no one following Sa'id ibn 'Obayd upon his narration, from Bouchayr ibn Yasar. Mouslim says in the book of discrimination: Sa'id ibn 'Obayd did not memorise it upon its form, for all the reports therein are the question of the Prophet (peace and blessings of Allah be upon him) of the qasama of fifty oaths, and none of their reports says that the Prophet asked for proof. And Sa'id omitted the qasama, and the concordance of the reports against him judges the fault. Yahya ibn Sa'id contradicts him. Ibn 'Abd al-Barr says of the narration of Sa'id ibn 'Obayd: it is the narration of the people of Iraq, from Bouchayr ibn Yasar; and the narration of the people of Medina from him is more established, they are more settled, and their transmission is more correct with the people of knowledge.

I say: Sa'id ibn 'Obayd abridged the story of the qasama, and it is preserved in the hadith; an-Nasa'i reports from the hadith of 'Amr ibn Chou'ayb, from his father, from his grandfather: the Prophet (peace and blessings of Allah be upon him) asked the guardian of the slain man for two witnesses of who killed him. He said: whence should I have two witnesses? He said, "Then let them swear fifty oaths of qasama." He said: how to swear upon what I know not? He said, "Then make them swear fifty oaths of qasama." This hadith reconciles the two narrations of Sa'id ibn 'Obayd and Yahya ibn Sa'id, each omitting part of the story: Sa'id omitting the mention of the qasama of the claimants, and Yahya omitting the proof before the request of the qasama, and Allah knows best.

As for the question of the witness with the oath: those who denied judgement by witness and oath argued the hadith, "your two witnesses or his oath," and his words (peace and blessings of Allah be upon him), "you have only that." The judge Isma'il the Malikite criticised this wording and said: Mansour singled it out from Abu Wail, contradicting the other reporters who said: he asked him, have you proof, or not? And proof does not stop at the two witnesses alone, but embraces everything establishing the truth. And others said: he may intend by his two witnesses every kind witnessing to the claimant the rightness of his claim, by which the truth is discerned: entering therein the testimony of two men, the man with two women, and the single one with oath, Allah having established the oaths of the claimant in rank of witnesses in the li'an.

And his words in the complete hadith, "you have only that," were not a general negation there, but a specific one: that intended by the claimant, which is that the word be his word without proof; he prevented him of it and refused it him. Likewise his words in the other hadith, "but the oath upon the defendant": intended is the oath alone without testimony; and the beginning of the hadith indicates it, "were the people given according to their claims, some men would claim the lives and wealth of the people," indicating that the oath upon the defendant is only the oath deciding the dispute with absence of proof. As for the oath establishing the truth with presence of testimony: it is another type, established by another sunna. As for returning the oath to the claimant: the well-known of Ahmad is the agreement of Abu Hanifa, that it is not returned. Ahmad argued the hadith, "the oath upon the defendant."

And he says in the narration of Abu Talib of him: it is not far from him to say, swear and you merit. Part of the later Companions chose it: the opinion of Malik, ash-Chafi'i and Abu 'Obayd. Reported from some of the Companions. A raised hadith has come therein, reported by ad-Daraqoutni with a disputed chain. Abu 'Obayd said: that is not removing the oath from its place: removing it would be not judging by the oath for the one claimed against; but if one judges by it against him, he is content with the oath of his companion, judging himself so, for were he willing he would swear and be whitened, and the claim would fall.

The second view in the question: weighing the stronger side of the two disputants, and the oath placed upon that side: the madhab of Malik. Likewise the judge Abu Ya'la mentions in his divergence that it is the madhab of Ahmad. Upon that are directed the preceding questions of judgement by qasama, witness, oath: the side of the claimant of the qasama having been fortified by the lawth, the oath was placed upon his side and judged for him. Likewise the claimant, having established a witness, fortified his side: he swore with him and judgement was given for him.

These have two ways of answering his words, "the proof upon the claimant." The first: this is specified from that generality by proof. The second: his words, "the proof upon the claimant," are not general, for the intent is the usual claimant, having for proof only the claim, as in his words, "were the people given according to their claims, some men would claim the lives and wealth of the people"; as for the claimant having a proof fortifying his claim, he does not enter into this hadith. A third way, followed by some: proof is everything establishing the rightness of the claim of the claimant and witnessing its truth: the lawth with the qasama is proof, and the witness with the oath is proof. A fourth way, followed by some: criticising the validity of this wording, that is, "the proof upon the claimant," and saying: the established is the words, "the oath upon the defendant."

His words, "were the people given according to their claims, some people would claim the lives and wealth of the people," indicate that the claimant of blood and wealth needs a proof showing his claim. Enter into this generality the one claiming against a man that he killed his testator, having only the words of the slain man at his death, "such a one wounded me": that does not suffice, and his deed alone is not lawth, the opinion of the majority, against the Malikites who made it lawth where the guardians swear and merit the blood. Enter into its generality also the one accusing his wife and cursing her: his blood does not become lawful by the li'an alone, the opinion of the majority, against ash-Chafi'i, and al-Jawzajani chose his words for the apparent of the words of the Most High, "and she turns away from her the punishment, testifying four times by Allah that he is of the liars." The first: some heard the blame as designation, and said: if she does not curse herself, she is detained until she attests or curses herself.

Herein is a consideration; and if a woman claims against a man that he forced her to fornication, the majority: nothing is established against him by her claim. Achhab of the Malikites said: she has her dowry by her oath. Others of them: she has the dowry without oath. All of that if she has standing, claiming against a suspect worthy of the claim. And if the one intended is of the people of virtue: of his penalty for qadhf, with Malik, two versions. And Chourayh and Iyas ibn Mou'awiya judged disputed wealth by the sole indications showing the truthfulness of one of the disputants. And Chourayh judged the children of Harra, two women disputing, each saying: he is the son of mine. Chourayh said: cast him with this one: if she accords, nurses and sleeps upon him, he is hers; if she flees and mistreats him and pushes him away, he is not hers. Ibn Qoutayba says: his words, "he stretched out," mean stretched out for the nursing; and "he shivered": he shivered and panted. And judging likewise Abu Bakr ach-Chami of the Shafi'ites, and Ibn 'Aqil of our companions preferred his words.

It is reported from ash-Chafi'i and Ahmad: the preference of the word of the pasture-keeper in the theft of wealth, and adoption. Ibn Mansour transmits from Ahmad: if the field-keeper says, your flock has corrupted my field by night, look at the effect; if the effect of his flock is not therein, the field-keeper must come with proof. Ishaq ibn Rahawayh said: as Ahmad said, for he is claimant. That indicates their agreement to be content with the vision of the effect of the flock, and proof is demanded only in default of effect.

His words, "and the oath upon the defendant," indicate that everyone defended against a claim and denying it: the oath is upon him, the opinion of most of the jurists. Malik said: the oath is due only to the denier if there be between the disputants some sort of acquaintance, fearing that the fools of the chiefs degrade in demanding their oaths. With him: if it is claimed against a man that he usurped or stole, and the defendant is not suspected of that, the defendant is not made to swear. He cites likewise from al-Qasim ibn Muhammad, Houmayd ibn 'Abd ar-Rahman, and some cite it from the seven jurists of Medina. If he is of the people of virtue, or of those to whom it is not attributed: the claimant is educated with Malik.

And it is argued from his words, "the oath upon the defendant," that the claimant has no oath, but upon him the proof, the opinion of the majority. It is reported from 'Ali that he made the claimant swear with his proof that his witnesses testified truly. And did the same Chourayh, 'Abdallah ibn 'Outba ibn Mas'oud, Ibn Abi Layla, Sawwar al-'Anbari, 'Obaydillah ibn al-Hasan and Muhammad ibn 'Abdallah al-'Ansari. Reported likewise from an-Nakha'i. Ishaq said: if the judge wonders, it becomes obligatory. Mahna asked Imam Ahmad of this question; Ahmad said, 'Ali did it. He said to him: is that right? He said: 'Ali did it, and the judge establishes that. A narration of Ahmad: but he heard it upon the claim against the absent one and the minor, and that does not stand, for 'Ali only made the claimant swear with proof upon the present one before him. And these say: this oath is for fortifying the claim when it weakens by the wonder at the witnesses, like the oath with the single witness. Certain Ancients made the witnesses swear in wondering at them likewise, among them Sawwar al-'Anbari, judge of Bassora; and the judge Abu Ya'la of our companions permitted it to the governor in injustices, without the judges.

Ibn 'Abbas said of the woman testifying to the nursing: she is made to swear. Imam Ahmad took to that. The Quran indicated making the witnesses swear at doubt by their testimony in the testament in travel, in His words, "O you who believe, testimony between you when death surprises one of you at the testament: two just ones of you, or two others from beyond you," up to His words, "then they swear by Allah: if you doubted, we shall not take by it a price, were he of kin, nor hide the testimony of Allah." And this verse is abrogated in application according to the majority of the Ancients. Abu Moussa and Ibn Mas'oud acted upon it. 'Ali and Ibn 'Abbas answered it: the madhab of Chourayh, an-Nakha'i, Ibn Abi Layla, Soufyan, al-'Awza'i, Ahmad, Abu 'Obayd and others: they said, the testimony of non-Muslims is accepted at the testament of Muslims in travel, and the two are made to swear with their testimony. And is their oath of the chapter of completing the testimony, without judgement by their testimony without oath? Or of the chapter of reinforcement at doubt? It is carried. Our companions made of it a condition: apparent of that reported from Abu Moussa and others.

Part of the Ancients went to the oath with the single witness being of reinforcement: if the judge saw fit to be content with the single witness for his prominent justice and the manifestation of his truthfulness, he was content with his testimony without the oath of the claimant. His words, "If it is discovered that the two merited a sin, two others stand in their place, the worthiest, and swear by Allah: our testimony is truer than their testimony," indicate that if a defect appears in the testimony of the disbelievers, the guardians of the slain swear their treachery and lying, and merit what they swore: the opinion of Moujahid and others of the Ancients. Its direction: the oath upon the side of the stronger of the disputants; the claim of the heirs being fortified herein by the manifestation of the lying of the disbelieving witnesses, the oath was returned to the claimants, swearing with the lawth and meriting their claim, as the guardians swear in the qasama with the lawth and merit the diya and the blood likewise according to Malik, Ahmad and others.

And Ibn Mas'oud judged for a Muslim man surprised by death, recommending to two Muslims with him and entrusting them his wealth, witnessing his testament to the disbelievers; then the executors came and handed to the heirs part of the wealth and hid part; then the disbelievers came and testified against them what they hid of the wealth. He called the Muslim executors, made them swear that more was entrusted to them than what they handed over; then called the disbelievers, they testified and he made them swear their testimony; then he ordered the guardians of the slain to swear that what the Jews and Christians testified is true: they swore, and he judged against the executors that upon which they swore. And that was in the caliphate of 'Outhman.

And Ibn Mas'oud interpreted the verse upon that, as though he opposed the oath of the executors and of the disbelieving witnesses [he excluded them, and there remained with the heirs the testimony of the disbelievers]: they swore with him and merited, their side having weighed by the testimony of the disbelievers for them: he placed the oath with the stronger of the disputants and judged by it.

The jurists diverged: is one made to swear in all the rights of men, as the opinion of ash-Chafi'i and a narration of Ahmad? Or not, except that in which one judges by the successive refusals, as a narration of Ahmad? Or not, except that which is validated by oath, as the well-known of Ahmad? Or not, except every claim not requiring two witnesses, as cited from Malik? As for the rights of Allah, the Mighty and Majestic: some scholars said, one is not made to swear in them in any case, the opinion of our companions and others; Ahmad made it explicit in the zakat, and said so Tawous, ath-Thawri, al-Hasan ibn Salih and others. Abu Hanifa, Malik, al-Layth and ash-Chafi'i said: if he is suspected, he is made to swear. And cited from ash-Chafi'i of the one marrying what is not lawful for him then claiming ignorance: he is made to swear upon his claim. And Ishaq said of the repudiation of the drunkard: he is made to swear that he had no reason. And of the repetition of the forgetful one: he is made to swear his forgetting. And al-Qasim ibn Muhammad and Salim ibn 'Abdallah said, of a man saying to his wife, you are repudiated: he swears that he did not will it three times, and she returns to him.

At-Tabarani reports from the narration of Abu Haroun al-'Abdi, from Abu Sa'id al-Khudri (may Allah be pleased with him): people of the bedouins came with meat, and there was something of it among us, and we mentioned it to the Messenger of Allah (peace and blessings of Allah be upon him); he said, "Stress their oaths: that they slaughtered it, then mentioned the name of Allah and ate." And Abu Haroun is very weak.

As for the depositary in the rights of men, where his word is accepted: has he oath or not? Three views of the imams. The first: no oath upon him, for he was believed by reason of the trust, and no oath with belief, by analogy to the judge: the opinion of al-Harith al-'Akli. The second: the oath upon him, for he is a denier, entering into the generality of his words, "and the oath upon the denier": the opinion of Chourayh, Abu Hanifa, ash-Chafi'i, Malik in a version, most of our companions. The third: no oath upon him unless he is suspected: text of Ahmad, and the opinion of Malik in a version, for his preceding trust. As for if an indication contradicting the state of trust arises: the meaning of the trust is altered.

His words, "the proof upon the claimant and the oath upon the denier": intended is when he claims against a man what he claims for himself, and he denies being of him who claimed it; wherefore he says at the beginning of the hadith, "were the people given according to their claims, some men would claim the lives and wealth of the people." As for the one claiming what he has not, without a defendant denying his claim: it is easier than the first, and the claimant here needs proof, but one is content with the proof of what one is not content with in the claim against the claimant for himself, the denier. Witness to that are questions: the foundling, when comes the one who describes it: it is not returned without proof, by agreement; but some say the handing over is permitted if the predominance of his truthfulness is opinion, not obligatory, against ash-Chafi'i and Abu Hanifa. And some say: obligatory to hand it over upon mention of the corresponding description: the opinion of Malik and Ahmad.

Among them: the booty, when comes whoever claims a part of it and it was his and the disbelievers seized it, establishing that which shows it is his: one is content therewith. Ahmad was asked thereon: does he want proof upon that? He said: an indication is needed showing it is his, even knowing that the emir handed it to him. Al-Khallal reports from his chain, from ar-Roukin ibn ar-Rabi', from his father: he unsaddled a horse for his brother at the date palm grove, saw it in the stable of Sa'd and said: my horse? Sa'd said: have you proof? He said: no, but I call it: it will snort. He called it, it snorted, and he gave it him. And it is possible he had gone to the enemy, then the Muslims appeared to him; or that it was recognised as strayed, placed among the strayed beasts, becoming like the foundling.

Among them: usurpation, when the injustice of the governors is known, and the repayment from the public treasury demanded. Abu az-Zinad said: 'Omar ibn 'Abd al-'Aziz returned the injustices to their people without decisive proof: he was content with the little, knowing the face of the injustice of the man, returning it to him, not charging him with establishing the proof for what was known of the stripping by the governors before him. And he sent the treasury of Iraq into the repayment of injustices until there was brought to it from Syria. Our companions mention that the usurped wealth with brigands and thieves: the claimants are content by the description, like the foundling. The judge mentions it in his divergence, and it is apparent of the words of Ahmad, and Allah knows best.