When two claimants dispute finding a lost item (luqatah) and neither has physical possession, what is the ruling if neither presents proof?
General Chapter
Al-Mughni
Book of Foundlings
Primary text
If two individuals claim to have found an item, and neither holds physical possession, and neither has proof, the statement of the one who swears an oath that he found it is accepted, according to Abu al-Khattab and the position of Al-Shafi'i. The evidence supporting this is the saying of the Prophet (peace be upon him): 'If people were given [what they claimed] by their claims, a people would claim the blood of other people and their wealth; however, the oath is upon the defendant.' (Reported by Muslim).
Supporting text
Al-Qadi holds that derivation from the main school of thought suggests no oath is required, similar to rulings in divorce and marriage contracts. If the item is in the possession of one of them, the one possessing it swears and the other must surrender it. According to Al-Qadi's view, the oath is not legislated here, and it should be delivered based solely on the lot-drawing result.