What is the ruling regarding the return of the oath to the plaintiff upon the defendant's refusal?
General Chapter
Al-Mughni
Book of Judicial Rulings
Primary text
The position favoring the return of the oath to the plaintiff is held by the people of Madinah, attributed to Ali, Shuraih, al-Sha'bi, al-Nakha'i, Ibn Sirin, and Malik specifically concerning financial matters. Al-Shafi'i applies this to all claims, based on the report that the Prophet (peace be upon him) returned the oath to the claimant of the right (narrated by al-Daraqutni). The reasoning is that the defendant's refusal validates the plaintiff's side, necessitating an oath from the plaintiff, similar to the defendant before their refusal or the plaintiff with only one witness. The refusal may stem from ignorance or piety, not necessarily falsehood, so the plaintiff's oath becomes evidence in the absence of stronger proof.
Supporting text
The counter-argument relies on the Prophet's saying, "But the oath is upon the side of the defendant," confining it there, and the statement, "The evidence is upon the plaintiff, and the oath is upon the defendant." Furthermore, an incident involving Ibn Umar and Uthman suggests the oath was not returned to the plaintiff when Ibn Umar refused to swear concerning a defect in a slave he sold.