Burden of proof and oath

البينة واليمين في الخصومات

The rule of litigation founded by Ibn Abbas's hadith — the thirty-third of the Forty — 'proof lies on the claimant and the oath on the one who denies': were people given by mere claims, some would claim others' blood and wealth, so the claimant must produce evidence for what he alleges and the denier swear to the negation of what is imputed to him; the two Sahihs word it 'but the oath is on the one against whom claim is made', the Prophet ﷺ so ruling in Nafi' ibn Umar al-Jumahi's route, and al-Isma'ili's wording has 'proof on the seeker and the oath on the one sought from' — the root of the Islamic evidentiary order in judgment (Jami' al-Ulum wal-Hikam p. 684).

Depth

At a glance

Era: The Prophetic Era
Region: Global / Diaspora
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Law and courts

Overview

The rule of pleading that the hadith of Ibn Abbas established, the thirty-third of the Forty, is "The burden of proof is on the claimant, and the oath on the one who denies." If people were given things on the mere basis of their claims, some would claim the blood and property of others. So the claimant must bring proof of what he claims, and the denier is made to swear to deny what is attributed to him. The wording in the two Sahihs is "but the oath is on the one who is accused"; Nafi' ibn Umar al-Jumahi relates that the Prophet decided so; and in the wording of al-Isma'ili it is "the proof is on the seeker and the oath is on the one sought." It is the basis of the system of proof in Islamic judgement. ¹ (Jami al-ulum wal-hikam, p. 684)

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