What is the legal weight of the Hadith stating 'The oath is upon the defendant' in cases contradicting the oath of the claimants in murder claims?
Chapter on Qasamah (Oaths regarding murder)
Al-Mughni
Book of Blood-Money (Diyyāt)
Primary text
The established rule is that the oaths of *Qasamah* (retaliation oaths) are fifty repeated oaths, as established by sound Ahadith and agreed upon by the scholars without known dissent. Evidence supporting the claimants swearing first includes the sound, agreed-upon Hadith of Sahl, which Malik practiced upon. Arguments against contradicting narrations include that a negation does not override an affirmation; Sahl was a Companion who witnessed the event, unlike others relying on opinion; and the primary narration is in the two sound collections (*Sahihayn*). Furthermore, the tradition 'The oath is upon the defendant' was not intended for this specific scenario (*Qasamah*) because it implies people are not given what they claim without proof, whereas here they are given blood-money based on their claim. Another narration, reported by Ibn 'Abd al-Barr via 'Amr bin Shu'ayb, specifies: 'The evidence is upon the claimant, and the oath is upon the denier, except in *Qasamah*.' This specific addition is accepted because the addition from a trustworthy source is valid, and because these are repeated oaths, necessitating starting with the claimants' oaths, similar to mutual cursing (*li'an*).
Supporting text
The Hadith attributed to Sulayman bin Yasar, from some men of the Ansar, stating the Prophet (PBUH) ordered the Jews to swear fifty oaths, is deemed weaker because the narrators are not explicitly mentioned as Companions. Furthermore, some countered the narration of Sahl by claiming the Prophet (PBUH) wrote to the Jews ordering them to pay *diyah* if they swore they did not know the killer, which the Prophet (PBUH) then paid from his own treasury when they swore.