When is testimony regarding a debtor's insolvency admissible, and what is the ruling on requiring an oath from the debtor when evidence is presented?
General Chapter
Al-Mughni
Book of the Insolvent (Bankruptcy)
Primary text
Testimony regarding insolvency is heard immediately, according to Al-Shafi'i. If accepted evidence proves the debtor is insolvent, the debtor is not required to swear an oath alongside it. If the creditor demands the debtor swear an oath alongside the accepted evidence, this is not required because the evidence is accepted, similar to when evidence proves ownership of a slave or house. The ruling that the burden of proof lies with the claimant and the oath with the denier is applied here. The justification for not requiring an oath when evidence is presented is that the evidence is accepted; if the evidence testifies to the loss of wealth, it is treated as if no original wealth was established, or as if the creditor admitted the loss and then claimed other wealth existed or was newly acquired. If evidence testifies to insolvency without mentioning loss, and the creditor requests an oath on insolvency, the oath may be required because the evidence only addresses loss (in one interpretation), which means the debtor must still swear regarding his current overall lack of wealth, as the evidence does not cover everything. The reasoning for requiring the debtor's oath when evidence only testifies to loss is that this is equivalent to the creditor admitting the loss and then claiming the debtor still has other wealth or newly acquired wealth; in the absence of evidence, if the creditor admitted loss and claimed other wealth, the debtor would have to swear, so the same applies when evidence confirms the loss.
Supporting text
Abu Hanifa holds that testimony is not heard immediately, but the debtor is imprisoned for one month, or three months, or four months, until the judge is reasonably certain that if the debtor had wealth, he would have displayed it. The basis for hearing testimony immediately is that any testimony permitted to be heard after a period should be heard immediately, like all other testimonies. The view suggesting a waiting period is flawed because if it were correct, it would negate the need for evidence altogether. A second view from Al-Shafi'i suggests the debtor should be required to swear an oath regarding his insolvency even when evidence of loss is presented, because it is possible the evidence missed hidden wealth. It is considered correct (in one scholarly opinion) to require the oath concerning insolvency only when evidence proves loss, but not when evidence proves outright insolvency, because testimony of loss is like an admission of loss followed by a claim of other wealth, which necessitates an oath from the debtor.