Can a creditor swear an oath alongside the witness to establish a debt owed to a deceased debtor whose estate is entirely consumed by debts, if the heirs refuse to swear?
General Chapter
Al-Mughni
Book of Judicial Rulings
Primary text
If a deceased person leaves behind an estate entirely covered by debt, and the heirs refuse to swear an oath along with the witness establishing the debt, the creditor cannot swear the oath alongside the deceased's witness to establish the debt and claim it. This position is held by Ishaq, Abu Thawr, and Al-Shafi'i in his later opinion (Al-Jadid). The reasoning is that the debt belongs to the heirs, not the creditor, so the creditor cannot swear on it, just as if the debt did not consume the entire estate. The evidence that the right belongs to the heirs is that their oath is sufficient, whereas the oath of another party would not suffice. Furthermore, the creditor's right is against the deceased's estate, and the debt itself belongs to the deceased, which is why the witness testifies that the debt is owed to the deceased.
Supporting text
Al-Shafi'i in his earlier opinion (Al-Qadim), along with Malik, held that the creditor has the right to swear the oath and claim the debt. Their reasoning is that the creditor's right is connected to the estate, evidenced by the fact that if the money were established, the creditor's right would take precedence over the heirs, and the creditor should possess the oath like an heir.