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Al-Mughni by Ibn Qudama - Edited by Al-Turki
Volume 14 · Page 2791935 - Issue: He said: (If someone claims a beast that is in the possession of another man, who denies it, and each of them brings forth evidence [bayyina], the ruling shall be in favor of the one whose evidence confirms his claim, and no regard is given to the evidence of the defendant, for the Prophet—peace be upon him—commanded us to hear the evidence of the claimant and the oath of the defendant, regardless of whether the defendant's evidence testifies that it is his, or says: 'It was born in his possession')

Translation · EN

entitlement to it, so he is not burdened with explaining it. It suffices for him to say: 'I am entitled to this specific object that is in his possession,' or 'I am entitled to such-and-such in his liability.' And in the case of a sale, he says: 'I bought this slave girl from him for a thousand dirhams,' or 'I sold it to him for that amount.' He does not need to say: 'And it is his property,' or 'it is my property'—or similar matters—and 'we parted with mutual consent.' Abu al-Khattab mentioned another view regarding contracts, which is that it is required to mention their conditions, by analogy to marriage. The companions of al-Shafi'i mentioned these two views, and a third view: if the sold item is a slave girl, it is required to mention the conditions of the sale because it is a contract through which intercourse is permitted, so it resembles marriage. If the sold item is other than that, it is not required due to the absence of that factor. The first [view] is more appropriate because it is a claim where a guardian and witnesses are not required, so it resembles the claim of a physical object. Whatever is necessary to mention in the claim, and he did not mention it, the judge shall ask him about it so that the claim becomes known, thus enabling the judge to rule upon it. We have already mentioned all other claims previously, in a way that makes repeating them here unnecessary.

1935 - Issue: He said: "And whoever claims an animal in the possession of a man, and he denies it, and both of them present evidence, it shall be ruled in favor of the claimant who provided evidence, and the evidence of the defendant shall not be heeded, because the Prophet (peace be upon him) commanded us to hear the evidence of the claimant and the oath of the defendant, and it is the same whether the defendant's evidence testifies that it is his, or states: 'It was born in his possession.'"

The entirety of this is that whoever claims something in the possession of another, and he denies it, and each of them has evidence, then the claimant's evidence is called the evidence of the 'outsider' (al-kharij), and the defendant's evidence is called the evidence of the 'insider' (al-dakhil). There is a difference of opinion reported from Ahmad concerning when they conflict; the famous view from him is the precedence of the claimant's evidence, and the defendant's evidence is not to be heard under any circumstances. This is the opinion of Ishaq. From him is a second report: if the evidence of the 'insider' testifies to the cause of ownership and states: 'It was produced in his possession,' or 'He bought it,' or 'He wove it,' or if his evidence...

Notes

(17) Omitted from: B. (18) In the manuscripts: "and we are permissible" (wanahnu ja'iz). (1) In A: "and he denied it". (2) In A: "to the hearing of". (3) In M, there is an addition: "against him". (4) In the original: "so he said". And in B: "so she said".

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