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 is upon the defendant." And the wording the Sheikh cited, Ibn as-Salah cites likewise in the global hadiths, saying: al-Bayhaqi reports it with a hassan chain. Al-Ismaili reports it in his Sahih, from the narration of al-Walid ibn Muslim: Ibn Jurayj informed us, from Ibn Abi Moulayka, from Ibn Abbas, that the Prophet (peace and blessings of Allah be upon him) said: "Were people given according to their claims, men would claim the lives and wealth of people; but the proof is upon the claimant, and the oath upon the one claimed against." Ash-Chafi'i reports: Muslim ibn Khalid informed, from Ibn Jurayj, from Ibn Abi Moulayka, from Ibn Abbas, that the Messenger of Allah (peace and blessings of Allah be upon him) said: "The proof upon the claimant." Ash-Chafi'i said: I deem, without asserting, he said: "and the oath upon the defendant." Muhammad reports, from Umar ibn Loubaba al-Faqih the Andalusian, from Uthman ibn Ayyoub al-Andaloussi, described with 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, saying: "But the proof upon who claims, and the oath upon who denies." Ghazi ibn Qays: a great righteous Andalusian, having heard Malik, Ibn Jurayj and their generation. And Ibn Jurayj fell 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 who denies." That indicates this wording is authentic with them, argued. Many hadiths in the meaning. In the two Sahihs, from al-Ach'ath ibn Qays: between me and a man was dispute over a well, and we arbitrated to 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 swears and cares not? The Messenger of Allah (peace and blessings of Allah be upon him) said: "Whoever swears an oath rightfully taking wealth is a wrongdoer, meeting Allah angry with him." Then Allah sent down confirming that, and he recited the verse: "Those who trade Allah's covenant and their oaths for a small price" and the verse.

In a version of Muslim, after his word "if he swears": "You have nothing but that." Muslim reports it also in sense from 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." He said: criticism in its chain, and al-Irzami is weakened in hadith for his memory. Ad-Daraqoutni reports from the narration of Muslim ibn Khalid az-Zanji, with weakness, from Ibn Jurayj, 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 who denies, except in the qasama." And the hafiz report it from Ibn Jurayj, from Amr ibn Chou'ayb, mursal. He reports also from the narration of Mujahid, from Ibn Umar, from the Prophet (peace and blessings of Allah be upon him) that he said in his sermon of the Conquest day: "The defendant is more worthy of the oath, unless proof stands." 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 weak ways; 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 seeking from a man a debt: the sought one is more worthy of the oath." Abu Obayd and al-Bayhaqi report it, its chain trustworthy, except Houmayd ibn Hilal, I think he did not meet Zayd ibn Thabit. Ad-Daraqoutni reports it adding: "without witnesses." An-Nasai reports the hadith of Ibn Abbas: two litigants came to the Prophet (peace and blessings of Allah be upon him), one claiming a right upon the other. The Prophet (peace and blessings of Allah be upon him) said to the claimant: "Bring your proof." He said: "O Messenger of Allah, I have no proof." He said to the other: "Swear by Allah, no deity but Him: is my wealth upon you or with you anything."

It is reported from Umar he wrote Abu Moussa: the proof upon the claimant, and the oath upon who denies. And Zayd ibn Thabit judged so upon Umar against Obbayy ibn Ka'b, and they denied it not. Qatada said: the wisdom of the speech given Dawoud (peace upon him) and our Prophet, prayer and salvation upon him: the proof upon the claimant, and the oath upon who denies. Ibn al-Mounzir said: the people of science are unanimous: proof upon the claimant, and the oath upon the defendant.

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

The jurists of our companions and the Shafi'is differed on interpreting the claimant and the defendant. Some said: the claimant is he who is freed and whose silence is taken of the two litigants; the defendant, he not freed and whose silence is not taken. Others said: the claimant: who requests a hidden matter against the origin and apparent, and the defendant its contrary.

Derivations

Upon that they built a matter: if the two disbelieving spouses embrace Islam before consummation then differ: the husband says we islamized together, our marriage remains; the wife says one of us preceded to Islam: the marriage dissolves. If we say the claimant is he freed with silence taken: the wife is the claimant, and the word is the husband's, being defendant, not freeing and silence taken. If we say the claimant is who claims a hidden matter: the claimant here is the husband, the pairing in Islam contradicting the apparent, and the word is the woman's, the apparent with her.

As for the trustee claiming loss, like the depositary claiming the deposit's loss: said he is a claimant, for the origin contradicts his claim. And no proof was needed, for the depositor entrusted him, and entrusting requires accepting his word. Said: the claimant needing proof is who claims to be given of people's wealth or blood as mentioned in the hadith. As for the trustee, he claims not to be given anything. Said: rather he is a defendant, for if silent he is not left, but must return answer. And the depositor is claimant, for if silent he leaves; and should the trustee claim returning the deposit to his confider: the majority hold his word accepted also, like the loss claim. Al-Awza'i said: his word is not accepted, for he is a claimant. Malik and Ahmad in a narration say: if established his receiving the deposit by proof, his word at returning is not accepted without proof. Some of our companions oriented that: witnessing the returning of rights established by proof is obligatory, leaving it is negligence entailing guarantee; wherefore a portion of them say, in returning the orphan's wealth: proof is needed, for Allah commanded witnessing upon it: it would be obligatory.

The jurists differed in this chapter on two sayings. The first: the proof upon the claimant ever, and the oath upon the defendant ever, Abu Hanifa's opinion, approved by a portion of jurists and traditionists like Boukhari, applied to every claim, even the qasama: they said none swears but the defendant, and saw judgment not by witness and oath, the oath being only upon the defendant, and saw the oath not returned to the claimant, it being only on the denier's side, the 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 that a number of them went to Khaybar and dispersed therein, finding one of them slain. He mentions the hadith, wherein the Prophet (peace and blessings of Allah be upon him) said: "Bring you a proof upon who killed him?" They said: we have no proof. He said: "Then do they swear?" They said: "We accept not the Jews' oaths." The Prophet (peace and blessings of Allah be upon him) disliked voiding his blood, and made the diya a hundred camels of the charity. Boukhari reports it. Muslim reports it abbreviated, not 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 slain's story, saying: they mentioned to the Messenger of Allah (peace and blessings of Allah be upon him) the killing of Abdallah ibn Sahl, and the Messenger of Allah (peace and blessings of Allah be upon him) said: "Fifty of you swear upon one man of them, and the diya of his slain is paid." And this is the famous established narration, reported with its complete wording in the two Sahihs. The imam memorizers mentioned Yahya ibn Sa'id's narration is more authentic than Sa'id ibn Obayd at-Ta'i's: he is nobler, more memorizing, more knowledgeable, Madinan, more knowledgeable of their hadiths than the Kufans. Imam Ahmad was mentioned the contradiction of Sa'id ibn Obayd to Yahya ibn Sa'id in this hadith; he shook his hand and said: "That is nothing: he narrated it as the Kufans say, and I go to the Madinans' hadith, Yahya ibn Sa'id." An-Nasai said: we know none following Sa'id ibn Obayd upon his narration, from Bouchayr ibn Yasar. Muslim said in the book of discrimination: Sa'id ibn Obayd memorized it not upon its form, for all the reports therein are the Prophet's asking (peace and blessings of Allah be upon him) of the qasama of fifty oaths, and nothing of their reports has the Prophet asking the proof. And Sa'id omitted the qasama, and the reports' concordance against him judges the error. Yahya ibn Sa'id contradicted him. Ibn Abd al-Barr said of Sa'id ibn Obayd's narration: it is the Iraqians' narration, from Bouchayr ibn Yasar; and the Madinans' narration from him is more established, they are more seated therein, and their transmission is more correct with the people of science.

I say: Sa'id ibn Obayd abbreviated the qasama story, preserved in the hadith; an-Nasai 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) sought of the slain's guardian two witnesses upon who killed him. He said: whence would I have two witnesses? He said: "Then they swear fifty qasama." He said: how swear upon what I know not? He said: "Then make fifty of them swear qasama." This hadith reconciles the two narrations of Sa'id ibn Obayd and Yahya ibn Sa'id, each omitting some story: Sa'id omitted the claimants' qasama mention, Yahya omitted the proof before the qasama demand, and Allah knows best.

As for the matter of the witness with the oath: those denying the judgment by witness and oath argued the hadith: "your two witnesses, or his oath", and the word (peace and blessings of Allah be upon him): "you have nothing but that." The judge Ismail the Malikite spoke on this wording, saying: Mansour singled it from Abu Wail, contradicting the other narrators, who said: he asked him: hast thou proof, or not? And proof stands not upon the two witnesses only, but encompasses all establishing truth. Others said: he may intend by his two witnesses both kinds witnessing the claimant's claim's validity, the truth shown thereby: entering therein the two men's testimony, the man's with two women's, and the single's with the oath, Allah having established the claimant's oaths in the witnesses' station in the lian. And the word in the hadith's completion: "you have nothing but that", not a general negation came thereby, but the particular: what the claimant intended: that the word be his word without proof; He prevented him that, and refused it him. Likewise his word in the other hadith: "but the oath upon the defendant": intended thereby is the oath bare of testimony, and the hadith's opening indicates that, his word: "were people given according to their claims, men would claim people's lives and wealth", indicating his word "the oath upon the defendant" is only the oath cutting the dispute with no proof. As for the oath establishing truth with testimony present: another type, established by another sunna. As for returning the oath to the claimant: the famous of Ahmad agreeing Abu Hanifa, it returns not. Ahmad argued the hadith: "the oath upon the defendant." And he said in Abu Talib's narration from him: it is not far said to him: swear and you deserve. A portion of the companions' later ones chose that: Malik's, ash-Chafi'i's and Abu Obayd's opinion. Reported of a portion of Companions. A raised hadith therein came, reported by ad-Daraqoutni with debate in its chain. Abu Obayd said: this is not removing the oath from its place: removal is judgment not by the oath upon the sought; but if judged by it against him, he is content with his companion's oath, judging himself thereby, for had he willed he would swear, clear, and the claim void.

The second saying in the matter: the stronger litigant's side is weighed, and the oath placed at this side: Malik's madhab. Likewise the judge Abu Ya'la mentions in his divergence it is Ahmad's madhab. Upon this orient the earlier questions of judging by qasama, witness, oath: the qasama claimant's side having strengthened by the lawth, the oath placed at his side, judged for him. Likewise the claimant, establishing a witness, strengthened his side: he swore with him and judged for him.

These have two ways answering his word "the proof upon the claimant". The first: this is specified from this generality by proof. The second: his word "the proof upon the claimant" is not general, for intended is the usual claimant, having for proof only the claim, as in his word: "were people given according to their claims, men would claim people's lives and wealth", as for the claimant having proof strengthening his claim, he enters not this hadith. A third way, some followed: the proof is all showing the claimant's claim's validity, witnessing his truth: the lawth with qasama is proof, the witness with oath is proof. A fourth way, some followed: criticizing this wording's validity, that is "the proof upon the claimant", saying: the established is "the oath upon the defendant".

His word: "were people given according to their claims, people would claim people's lives and wealth" indicates the blood-and-wealth claimant needs proof showing his claim. Entering its generality: claiming against a man he killed his testator, having only the slain's word at death: so-and-so wounded me, sufficing not thereby, nor being lawth alone: the majority's opinion, against the Malikites making it lawth, the guardians swearing with it deserving the blood. Entering its generality also the wife's accuser with lian: her blood is not permitted by mere lian, the majority's opinion, against ash-Chafi'i, al-Jawzajani choosing his word for the apparent of the Most High's word: "and she averts from him the punishment, witnessing four witnesses by Allah he is of the liars." The first ones: some understood the blame as confinement, saying: if not lian, confined until attesting or lian. Therein a look; and were a woman claiming against a man forcing her to fornication: the majority holds nothing established against him by her claim. Ashhab of the Malikites said: she has her dower by her oath. Others of them said: she has the dower without oath. All that if of value, claiming against a suspect fitting the claim. Were the one accused of it of the righteous: her qadhf's limit, with Malik, two versions. And Chourayh and Iyas ibn Mou'awiya judged disputed wealth by mere indices showing one litigant's truth. Chourayh judged Harra's children, two women disputing, each saying he is my Harra's son. Chourayh said: cast him with this one: if she accords, nurses and sleeps upon him: he is hers; if she flees, mistreats and pushes him: not hers. Ibn Qoutayba said: his word "she extended": intending extended to nursing; and "bristled": shivered and sighed. Judging the like Abu Bakr ach-Chami of the Shafi'is, and Ibn Aqil of our companions preferred his word.

It is reported of ash-Chafi'i and Ahmad: preferring the Qafa's word in stealing wealth, adopting it. Ibn Mansour transmits from Ahmad: should the fielder say: your flock corrupted my field by night, the effect seen; were the flock's effect not in the field, the fielder must come with proof. Ishaq ibn Rahawayh said: as Ahmad said, for he is a claimant. That indicates their accord of contenting with seeing the flock's effect, proof sought only at effect's absence.

His word: "and the oath upon the defendant" indicates every defendant of a claim, denying: the oath upon him, most jurists' opinion. Malik said: the oath is due only the denier, should there be a kind of mixing between the litigants, fearing the fools of chiefs belittle seeking their oaths. With him: should one claim against a man usurping or stealing, the defendant not suspected thereof, the defendant is not made to swear. He also cites from al-Qasim ibn Muhammad, Houmayd ibn Abd ar-Rahman, and some cite it of Medina's seven jurists. Were he of virtue's people, or not pointed at thereby: the claimant is disciplined at Malik's. And argued his word "the oath upon the defendant": the claimant has no oath, but upon him the proof, the majority's opinion. Reported of Ali he made the claimant swear with his proof that his witnesses witnessed truly. Doing so too Chourayh, Abdallah ibn Outba ibn Mas'oud, Ibn Abi Layla, Sawwar al-Anbari, Obaydillah ibn al-Hasan, and Muhammad ibn Abdallah al-Ansari. Reported of an-Nakha'i also. Ishaq said: should the judge wonder, that becomes due. Mahna asked Imam Ahmad of this matter; Ahmad said: Ali did it. He said: is this right? He said: Ali did it, and the judge established it. A narration of Ahmad: but he carried it upon the claim against the absent and the child, invalid, for Ali made the claimant swear only with proof upon the present with him. These say: this oath is for strengthening the claim when weak by witnesses' wonder, like the oath with the single witness. Some Ancients made witnesses swear, wondering them too, among them Sawwar al-Anbari, Bassora's judge; and the judge Abu Ya'la of our companions permitted it to the grievances' governor without judges.

Ibn Abbas said of the woman witnessing nursing: she is made to swear. Imam Ahmad took it. The Quran indicated making witnesses swear at wonder by their testimony in the testament in travel, in His word: "O you who believe, testimony between you when death approaches one of you at the bequest: two just of you, or two others from beyond you", to His word, "then they swear by Allah: if you doubted, we buy not thereby a price, though he be of kin, nor hide Allah's testimony." And this verse's application is abrogated per the Ancients' majority. Abu Moussa and Ibn Mas'oud acted by it. Ali and Ibn Abbas answered: Chourayh's, an-Nakha'i's, Ibn Abi Layla's, Soufyan's, al-Awza'i's, Ahmad's, Abu Obayd's and others' madhab: they said: the unbelievers' testimony is accepted in the Muslims' bequest in travel, and the two are made to swear with their testimony. Is their oath of completing testimony's chapter, judgment not by their testimony without oath? Or of reinforcement at doubt? That is carried. Our companions made it a condition: apparent of what reported of Abu Moussa and others. A portion of the Ancients went to the oath with the single witness being reinforcement: should the judge see contenting with the single witness by his justice's prominence and truth's manifestation, content with his testimony without the claimant's oath. His word: "If discovered they both deserved a sin, two others stand in their place of those most worthy, and swear by Allah: our testimony is truer than their testimony" indicates that should defect show in the unbelievers' testimony, the dead's guardians swear their treachery and lie, deserving what they swore: Mujahid's opinion and others of the Ancients. Its orientation: the oath at the stronger litigants' side; here the heirs' claim strengthened by the unbelieving witnesses' lie manifest: the oath returned to the claimants, swearing with lawth deserving their claim, as the guardians swear in qasama with lawth deserving thereby the diya and blood too, at Malik's, Ahmad's and others'. And Ibn Mas'oud judged for a Muslim man overtaken by death, bequeathing to two Muslim men with him, delivering his wealth, witnessing his bequest disbelievers; the executors came, paying the heirs part and concealing part; the disbelievers came witnessing what they concealed. He called the Muslim executors, made them swear more was delivered than they paid; called the disbelievers, witnessing and swearing their testimony; then ordered the dead's guardians swear what the Jews and Christians witnessed true: they swore, judging against the executors what they swore. That was in Outhman's caliphate. Ibn Mas'oud interpreted the verse thereby, as opposing the executors' oath and the disbelieving witnesses [dropping both, remaining with the heirs the disbelievers' testimony]: swearing with it and deserving, their side having weighed by the disbelievers' testimony for them: he placed the oath with the stronger litigants and judged thereby. The jurists differed: swear in all men's rights, ash-Chafi'i's opinion and a narration of Ahmad? Or not, except judged by successive denials, a narration of Ahmad? Or not, except what validates by serment, famous of Ahmad? Or not, except every claim needing no two witnesses, cited of Malik? As for Allah the Mighty and Majestic's rights: of the scholars saying: never sworn therein at all, our companions' opinion and others; Ahmad stated it in zakat, and said Tawous, ath-Thawri, al-Hasan ibn Salih and others. Abu Hanifa, Malik, al-Layth and ash-Chafi'i said: "if suspected, he swears." Likewise cited of ash-Chafi'i of one marrying unlawfully then claiming ignorance: he is sworn upon his claim. Likewise Ishaq said of the drunkard's divorce: he swears he had no reason. Of the forgetful's divorce: swearing his forget. Likewise al-Qasim ibn Muhammad and Salim ibn Abdallah said of a man telling his wife: you are thrice repudiated, he swears intending not the three, and she returns.

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

As for the trustee in men's rights where his word is accepted: oath upon him or not? Three imams' opinions. The first: no oath upon him, for he believed him by entrusting, no oath with believing, by analogy to the judge: al-Harith al-Akli's opinion. The second: the oath upon him, for he is a denier, entering the generality of his word: "and the oath upon who denies": Chourayh's, Abu Hanifa's, ash-Chafi'i's, Malik's in a version, most of our companions'. The third: no oath upon him except suspected: Ahmad's text, Malik's opinion in a version, for the prior entrusting. Were an indication contradicting the entrusting state to stand: the entrusting's meaning altered.

His word: "the proof upon the claimant and the oath upon who denies": intended is when claiming against a man what he claims for himself, he denying it be for whom claimed. Wherefore he said at the hadith's start: "were people given according to their claims, men would claim people's lives and wealth." As for claiming what he has not, no defendant for himself denying his claim: easier than the first, and the claimant here needs proof, but contented of the proof is what suffices not in the claim against the claimant for himself, the denier. Testifying that matters: the foundling, when comes its descriptor: returned not without proof by accord; but some say return permitted if his truth predominates opinion, not obligatory, against ash-Chafi'i and Abu Hanifa. And some say: return obligatory by mentioning the matching description: Malik's and Ahmad's opinion. Among them: the booty, when comes claiming part of it being his, disbelievers seizing it, establishing what shows it his: contented. Ahmad was asked thereof: does he intend thereby proof? He said: indication showing it his is needed, even knowing the emir delivered it to him. Al-Khallal reports by his chain, from ar-Roukin ibn ar-Rabi', from his father: he unharnessed for his brother a horse at the dates' eye, seeing it in Sa'd's stable, saying: my horse? Sa'd said: hast thou proof? He said: no, but I call him: he pants. He called him, he panted, and he gave him him. Possible he had joined the enemy, then Muslims appeared to him; or he was known lost, placed among the lost beasts, becoming like the foundling.

Among them: usurpation, when governors' injustice is known, and restitution sought from the treasury. Abu az-Zinad said: Umar ibn Abd al-Aziz returned injustices to their people without the cutting proof, contenting with the little, knowing the man's injustice's face, returning it to him, charging him not establishing the proof for the governors' squeeze known before him. He sent Iraq's treasury in returning injustices until brought from Syria. Our companions mention usurped wealth with brigands and thieves suffices their claimants by description, like the foundling. The judge mentions it in his divergence, it being apparent of Ahmad's word, and Allah knows best.