What is the ruling when the outgoing party claims ownership of an animal currently possessed by the incoming party, claiming it was merely deposited, lent, or rented, and neither party has evidence?
General Chapter
Al-Mughni
Book of Claims and Evidences
Primary text
If the outgoing party claims the animal is his property, which he entrusted (deposited), lent, or rented to the incoming party, and neither possesses conclusive evidence, the binding statement belongs to the denier, accompanied by his oath. This ruling is undisputed. The evidence for the outgoing party prevails if both parties present evidence, which is the position of Al-Shafi'i. The evidence rests upon the claimant according to the prophetic saying: "The evidence is upon the claimant." Since the oath is incumbent upon the defendant, the evidence belongs to the claimant, even if the claim of entrustment or rental had not been made. Moreover, the claim of entrustment is an amplification of the claimant's case; evidence supporting it strengthens it, and it cannot invalidate the claimant's primary evidence.
Supporting text
Al-Qadi holds that the evidence of the incoming party takes precedence because, in essence, the incoming party is the one leaving (or acting as the possessor departing), and it is established that the claimant is the true owner, meaning the possession of the incoming party is merely a proxy for the owner.