May a claimant request the defendant's oath after stating, 'I have present evidence and wish to swear the defendant,' but before presenting the evidence?
General Chapter
Al-Mughni
Book of Judicial Rulings
Primary text
There are two views regarding whether the claimant may request the defendant's oath after announcing the availability of evidence but prior to its presentation. The preferred view allows this, permitting the opponent to be sworn. This is supported by the principle that the claimant has the right to demand the oath when the evidence is distant (unavailable), and this right should similarly extend when the evidence is present but merely intended to be presented. Furthermore, if the claimant explicitly stated he would forgo presenting his nearby evidence, the right to demand the oath is established, and the same logic applies when he intends to present it.
Supporting text
The opposing view prohibits demanding the oath in this scenario because the existence of evidence, even if pending presentation, renders the oath unnecessary, as the evidence itself is sufficient. The evidence is the basis, and the oath is the substitute; one cannot combine the basis and the substitute, analogous to prohibiting ablution (tayammum) when water is available. The distinction is made from cases involving distant evidence, which is treated as non-existent due to the inability to produce it immediately.