If the defendant refuses an oath in a case where the oath could establish a penalty (Qisas), should the oath be returned to the claimants?
Chapter on Qasamah (Oaths regarding murder)
Al-Mughni
Book of Blood-Money (Diyyāt)
Primary text
The oath should not be returned to the claimants. This is because the oath was legislated for the benefit of the defendant, and it is not returned if the plaintiff refuses it after it has been turned over to them in other types of claims. Moreover, an oath returned to one of the two parties should not be returned to the one who returned it, as in a claim for money.
Supporting text
The Companions of Al-Shafi'i state that if the oath establishes monetary compensation, it is returned to the claimants. If they swear, they acquire their right; if they refuse, they receive nothing. If the oath establishes Qisas, there are two opinions on whether it should be returned.