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The question

If the defendant refuses to take the oath, is the oath then referred back to the plaintiff?

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Source: FtawySummary from Ftawy's records · added here Sep 2, 20261 min readAlso available in العربية
The answer

The scholars differed on the issue of returning the oath to the plaintiff if the defendant refused to swear. Abu Hanifa and a narration from Ahmad were of the opinion that it should not be returned, because refusal to swear is an admission of the right. Malik, Al-Shafi'i, and another narration from Ahmad were of the opinion that it should be returned to strengthen the right with the oath, and Malik limited this to claims of wealth. The Dhahiris were of the opinion that the oath should not be returned and that refusal to swear does not constitute a judgment. Al-Shawkani preferred this opinion, stating that the judge, after the refusal to swear, must compel the defendant to one of two things: the oath or admission. In summary, there is a disagreement on the matter, and the majority opinion is that the oath should be returned.

Summary from Ftawy's records · added here

Reviewed by El Fatwa's sharia committee.

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Ftawy
Original fatwa ID
34794
Added here
. This is when the answer was added to El Fatwa, not the fatwa's date.
Text
Summary from Ftawy's records, reviewed by El Fatwa's sharia committee.
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Read the full answer on Ftawy