If two equal, conflicting proofs are established, is an oath required for the division of the item?
General Chapter
Al-Mughni
Book of Claims and Evidences
Primary text
There are two narrations regarding the oath. The first narration states that each party must swear regarding the half awarded to them. This is mentioned by Al-Khiraqi, based on the principle that when proofs conflict equally without preference, they are nullified, rendering the situation as if neither had proof, thus requiring an oath on the awarded half. This is one view attributed to Al-Shafi'i, based on the requirement that the possessor swears even with their proof.
Supporting text
The second narration holds that the division occurs without any oath being required. This is the view of Malik, Abu Hanifa, and one position of Al-Shafi'i, considered sounder due to the established Hadith and reasoning, as each proof is considered superior regarding half the item, and superior evidence does not require an oath.