Is the plaintiff required to take an oath when presenting evidence against an absent person or one not legally accountable?
General Chapter
Al-Mughni
Book of Judiciary
Primary text
The plaintiff is not required to take an oath alongside their evidence when the defendant is absent or not legally accountable (such as a minor or an insane person), according to the more prevalent of the two narrations. This is based on the Prophet's saying: "The evidence is upon the claimant, and the oath is upon the one against whom the claim is made." Furthermore, when valid evidence is presented, an oath is not mandatory alongside it, similar to the case when the defendant is present.
Supporting text
The second narration states that the plaintiff must take an oath even with evidence. This view is held by Al-Shafi'i because it is possible that the defendant, if present, could have already obtained what the evidence confirms or owned the item in question, thus requiring an oath. Since this self-defense is impossible due to absence or lack of legal capacity, the judge must stand in their place regarding what can be claimed. Additionally, the judge is commanded to exercise caution (ihtiyat) regarding the minor, the insane, and the absent, as they cannot speak for themselves.