is earlier in date, it is given precedence; otherwise, the claimant's evidence is given precedence. This is the opinion of Abu Hanifah and Abu Thawr regarding the offspring (of an animal) and the weaving of cloth, for that which does not have its weaving repeated. As for that which has its weaving repeated, such as wool and khazz (silk-wool blend), his evidence is not to be heard; for if it testifies to the cause, it has provided what possession alone does not provide. Jabir ibn Abdullah narrated that two men disputed before the Prophet (peace be upon him) over an animal or a camel, and each of them brought evidence that it was his, and that he had produced it, and the Messenger of Allah (peace be upon him) ruled it for the one in whose possession it was.

Abu al-Khattab mentioned a third report that the evidence of the defendant is given precedence in every case. This is the opinion of Shurayh, al-Sha'bi, al-Nakha'i, al-Hakam, al-Shafi'i, and Abu 'Ubayd. He said: It is the opinion of the people of Medina and the people of al-Sham. This has been narrated from Tawus. The Qadi (Abu Ya'la) denied that this is a report from Ahmad, and said: It is a single report that the evidence of the 'insider' is not accepted if it does not provide anything other than what his possession provides. Those who adopted this view argued that the position of the defendant is stronger because the original state (al-asl) is with him, and his oath is given precedence over the oath of the claimant. Thus, if the two pieces of evidence conflict, it is obligatory to maintain his possession of what is in it and to give him precedence, just as if there were no evidence for either of them. The hadith of Jabir points to this, for his evidence was only given precedence due to his possession.

Our argument is the statement of the Prophet (peace be upon him): "The burden of proof is upon the claimant, and the oath is upon the defendant." He placed the category of evidence on the side of the claimant, so no evidence remains on the side of the defendant. Furthermore, the evidence of the claimant is more beneficial, so it must be given precedence, just as the evidence of impugnment (jarh) is given precedence over authentication (ta'dil). The proof of its greater utility is that it establishes something that did not exist, whereas the evidence of the denier only establishes an outward appearance that possession already indicates, so it is not beneficial. Additionally, it is permissible that the basis of testimony regarding ownership is the observation of possession and control, for this is permissible according to many of the scholars. Thus, the evidence becomes in the position of mere possession, and therefore the evidence of the claimant is given precedence over it, just as it is given precedence over possession itself, just as the two secondary witnesses, when they are built upon the two primary witnesses, have no advantage over them.