If the defendant were to claim it, his claim and his evidence would be heard. If he is present and legally accountable, his silence regarding such a claim is evidence of its negation, and thus the evidence suffices. If he is absent, or is someone who has no capacity for speech, the possibility of that is negated without any evidence pointing to its exclusion, so an oath is ordained to negate it. If the claimant has no evidence, but the denier has evidence, his evidence is heard, and he does not need to take an oath along with it; for if we say it is given precedence despite the conflict, and that he does not take an oath with it, then it is more appropriate when it stands alone. If we say the evidence of the defendant is given precedence, it must suffice in place of an oath, because it is stronger than an oath; and if an oath suffices, then that which is stronger than it is more fitting. It is possible that an oath might also be ordained; because the basis for the evidence here might be possession and control, and thus it provides no more than what possession and control provide, which does not dispense with the need for an oath, and the same applies to that which stands in its stead.

Section: If the outsider claims that the animal is his property and that he deposited it with the insider, or lent it to him, or leased it to him, and neither of them has evidence, the statement is that of the denier along with his oath, and we know of no disagreement regarding this. If each of them has evidence, the evidence of the outsider is given precedence. This is the opinion of al-Shafi'i. Al-Qadi said: The evidence of the insider is given precedence because he is, in meaning, the outsider; for it has been established that the claimant is the possessor, and that the possession of the insider is on his behalf. Our argument is the statement of the Prophet (peace be upon him): "The burden of proof is upon the claimant." Furthermore, since the oath is the right of the defendant, the evidence belongs to the claimant, just as if he had not claimed the deposit; this is reinforced by the fact that his claiming the deposit is an addition to his proof, and the testimony of the evidence regarding it is a strengthening of it, so it is not permissible for it to invalidate his evidence. If the outsider claims that the insider usurped it from him, and they both produce evidence, it belongs to the outsider. Al-Qadi's statement would necessitate that it belongs to the insider, but what we have mentioned is more appropriate.

Section: If a man is in possession of the hide of a skinned sheep, and its head, remains, and the rest of it are in the possession of another, and each of them claims the whole of it, and neither of them has evidence, then each of them has what is in his possession along with