Which claim of ownership prevails when one party claims ownership and another claims a subsequent transfer (sale, gift, endowment) of the same property?
General Chapter
Al-Mughni
Book of Claims and Evidences
Primary text
When one party establishes ownership with evidence (bayyina), and a second party claims that the first party subsequently sold, gifted, endowed the property to them, or if a spouse claims the owner gifted it to them or freed a slave belonging to them, the claim of the second party is upheld if they provide supporting evidence. This is because the second party's evidence proves a hidden or subsequent event (khāfi), while the first party's evidence proves the underlying original state. It is possible for the property to have been owned by the first party before the event testified to by the second party's evidence occurred. This ruling applies whether the evidence for the transfer mentions the seller owned the property or not, and whether it mentions possession (qabḍ) during the sale or not. This is the position of Al-Shafi'i.
Supporting text
Abu Hanifa holds that the ownership of the buyer is not established, and the seller's possession is not removed, unless the evidence specifically testifies that the seller sold what they owned or what was in their possession, because an unqualified testimony of sale is not conclusive proof, as one might sell what they do not own.