1699. The legal object of evidence is to prove a right.
consequently, purely negative evidence is inadmissible,as where someone states
that a certain person did not belong to a certain person, or that someone is not
in debt to a certain person.
Conclusively substantiated evidence of a purely negative character, however, is
admissible.yvT u Example:- A brings an action to recover a sum of money advanced
as a loan, alleging that he lent a certain sum of money,at a certain time, and
at a certain place, to a certain person. If conclusively substantiated evidence
is given proving that A was not in that place at that time, but was elsewhere,
such evidence is admissible and the plaintiff's case will be dismissed.
1700. It is a condition precedent to giving evidence that the
witness should be entirely impartial. Consequently, evidence by an ascendant on
behalf of a descendant or of a descendant on behalf of an descendant, that is to
say, the evidence of a father and a grandfather and of a mother and a
grandmother on behalf of their children and grandchildren and of children and
grandchildren on behalf of their father and grandfather and mother and
grandmother, and one of the spouses on behalf of the other, is not admissible.
Subject to these exceptions, however, the evidence of relations on behalf of one
another is admissible. The evidence of a man who is maintained at some other
person's expense, and that of a person in the salaried employment of another on
behalf of such person, is inadmissible. The evidence of fellow servants on
behalf of one another, however, is admissible. Again, the evidence of partners
on behalf of each other in respect to the partnership property, and of a surety
in respect to payment by the principal of the sum for which he stood surety, is
inadmissible. In other matters, however, the evidence of such persons on behalf
of one another is admissible.
1701. The evidence of a person on behalf of his friend is
admissible. But if the bonds of friendship uniting them are such that they use
each other's property, such evidence is inadmissible.
1702. It is a condition precedent to the validity of the evidence
that there should be no enmity of a temporal nature between the witness and the
person against whom he gives evidence. Enmity of a temporal nature is
ascertained by reference to custom.
1703. A person cannot be both plaintiff and witness.
Consequently, the evidence of a guardian on behalf of an orphan and of an agent
on behalf of his principal is inadmissible.
1704. A person may not give evidence of his own acts.
Consequently, agents and brokers may not give evidence as to any sales effected
by them. Similarly, if the judge of a town who has retired gives evidence as to
a judgement delivered by him before his retirement, such evidence is
inadmissible. But if he gives evidence after his retirement as to an admission
made before him prior to his retirement, such evidence is valid.
1705. A witness must be an upright person. An upright person is
one whose good qualities are greater than his bad qualities. Consequently, the
evidence of persons who habitually behave in a manner inconsistent with honour
and dignity, such as dancers and comedians, and persons who are known to be
liars, is inadmissible.
SECTION IV. RELEVANCY OF EVIDENCE TO THE POINT AT ISSUE IN THE ACTION.
1706. Evidence is admissible if it agrees with the nature of the
claim and not otherwise. There is no necessity, however, for mere conformity as
to the language employed. It is enough if there is conformity in fact. yvT
(1). The action concerns an object deposited for safekeeping and witnesses give
evidence that the defendant has admitted the deposit; or the action concerns
wrongful appropriation of property and witnesses give evidence that the
defendant has admitted the wrongful appropriation. The evidence is admissible.
(2). A debtor alleges in Court that he has paid his debt. Witnesses give
evidence that the creditor released the debtor from payment. The evidence is
1707. The evidence must agree with the claim, whether such
evidence goes to the whole or to part only of such claim.yvT x Examples:-
(1). A brings an action alleging that certain property has belonged to him for
the last two years. Witnesses give evidence that such property has belonged to A
for the last two years. Such evidence is admissible. It is also admissible if
they give evidence that such has belonged to A for one year.
(2). The plaintiff's claim is for one thousand piastres. Witnesses give evidence
as to five hundred. Their evidence in regard to the five hundred is valid.
1708. Evidence in respect to more than is claimed is inadmissible. If, however, the
divergence between the claim and the evidence is in fact capable of explanation
and the plaintiff does so explain such divergence, the evidence is
(1). A brings an action alleging that certain property has been his for the last
two years. Witnesses give evidence that such property has belonged to him for
the last three years. The evidence is inadmissible.
(2). The plaintiff's claim is for five hundred piastres. Witnesses give evidence
as to one thousand piastres. The evidence is inadmissible. But if the plaintiff,
by explaining that at one time one thousand piastres were in fact due to him
from the defendant, but that five hundred piastres of that amount have since
been repaid,of which the witnesses were unaware, shows that the action is in
conformity with the evidence of the witnesses, the evidence of such witnesses is
1709. If the plaintiff brings an action for absolute ownership
without stating how he became possessed of the property, alleging, for example,
that a vineyard belongs to him, and witnesses give evidence as to the origin of
the ownership, stating from whom the plaintiff bought the vineyard, the evidence
is admissible. Thus, if the witnesses give evidence as to ownership arising from
a definite cause and the Court asks the plaintiff as to whether his claim to the
property arises from that cause or from some other, and the plaintiff replies
that he does in fact claim the property by reason of such cause, the Court shall
accept the evidence given by the witnesses. If, however, the plaintiff states
that his claim is based upon some other cause, or that it is not based on that
cause, the Court shall reject the evidence of the witnesses.
1710. A plaintiff may validly bring an action claiming ownership
arising out of some definite cause, as for example, in the case of a vineyard.
If the plaintiff, without mentioning the vendor, states that he has purchased
such vineyard, or without stating the details, merely alleges that he has bought
such a vineyard from a certain person, such action shall be considered to be an
action for absolute ownership; and if the witnesses give evidence that the
vineyard in question us the plaintiff's absolute property, such evidence is
admissible. If the witnesses, however, give evidence as to absolute ownership of
property, stating that the plaintiff bought such property from a certain person
and describe the vendor, such evidence is inadmissible. The reason for this is
that once an absolute right of ownership is established, the effect thereof is
retrospective and will extend to matters incidental to such thing. For example,
the fruit formerly produced by the vineyard also becomes the property of the
plaintiff. If the right of ownership arises out of some definite cause, however,
it can only be effective as from the date upon which such right arose, for
example, as from the date of the sale. Consequently, a right of absolute
ownership is more extensive than a right of ownership arising out of some
definite cause and thus the witnesses have given evidence for more than the
plaintiff has demanded.
1711. Evidence given in an action with regard to debt which is
contrary to the claim is inadmissible.yvT Examples:-
(1). The plaintiff claims payment of one thousand piastres alleged to be due to
him as the price of a sale. If the witnesses give evidence to the effect that
the defendant owes such sum in respect to a loan, their evidence is
(2). The plaintiff claims that certain property has devolved upon him by way of
inheritance from his father. Witnesses give evidence that the property has
devolved upon him by way of inheritance from his mother. The evidence is
SECTION V. CONTRADICTORY EVIDENCE.
1712. The evidence of witnesses which is contradictory in respect to the matter regarding which the
evidence is given, is inadmissible. yvT Example:- One witness gives evidence
in respect to a thousand piastres gold; another witness gives evidence as to one
thousand piastres in silver MEDJIDIES. Their evidence is inadmissible.
1713. If there is a contradiction in the evidence given by
witnesses regarding matters incidental to the subject matter of their evidence
and such contradiction extends to the subject matter of the evidence itself,
such evidence is inadmissible. If the contradiction with regard to the
incidental matter does not affect the subject matter of the evidence, however,
the evidence is admissible. Consequently, if the evidence is given with regard
to a mere fact, such as wrongful appropriation, or payment of a debt, and one
witness gives evidence that the thing was done at another time or another place,
such evidence is admissible, since the conflict of evidence shows a discrepancy
to exist concerning the subject matter of the action. As regards matters,
however, which are placed on record, such as sale, purchase, hire, suretyship,
transfer of debt, gift, pledge, debt, loan, release and testamentary
disposition, any contradiction of witnesses as to circumstances of time or place
will not affect the validity of the evidence, since such contradiction does not
affect the subject matter of the evidence.yvT z Example:- A asserts that he has
paid a debt due. One witness gives evidence that A paid such debt in his house.
Another witness gives evidence that A paid the debt in his shop. The evidence of
the witnesses is inadmissible.
But if a person brings an action in Court claiming property in possession of
some third person, asserting that such person sold him the property for a
certain sum of money and claims delivery thereof, and one witness gives evidence
that such property was sold in a certain house and the other that it was sold in
a shop, such evidence is admissible, since an act once performed cannot be
repeated, but a matter put on record can be repeated.
1714. Should witnesses contradict each other as regards the
colour of property wrongfully appropriated, or whether it is of the male or
female sex, their evidence is inadmissible.yvT r Example:- Wrongfully
appropriation of an animal. A witness gives evidence to the effect that the
animal is a grey horse. Another witness states that the animal is a dark-brown
horse. Another witness states that it is a chestnut horse. Another witness
states that it is a horse, while yet another states that it is a mare. The
evidence of these witnesses is inadmissible.
1715. Contradictions as to the amount of the price in the
evidence of witnesses in an action on a contract renders such evidence
inadmissible.yvT ' Example:- One witness gives evidence stating that certain
property was sold for five hundred piastres and another witness that it was sold
for three hundred piastres. Their evidence is inadmissible.
SECTION VI. INQUIRY INTO THE CREDIBILITY OF WITNESSES.
1716. When witnesses have given evidence, the Court shall ask the person against whom
evidence has been given whether he considers that the witnesses told the truth
when giving their evidence. If such person states that he considers the
witnesses are truthful or straight-forward as regards the evidence they have
given, he has taken to have admitted the matter in issue, and judgement is given
on his admission. If, however, he states that the witnesses have given false
evidence, or that, while being upright persons, they are mistaken in regard to
such matters or have forgotten the matter, or while admitting that the witnesses
are upright persons, at the same time denies the matter in issue, judgement
shall not be given =, but the Court shall take steps to ascertain, both publicly
and privately, whether the witnesses are upright or not.
1717. The inquiry as to the credibility of witnesses shall be
addressed either publicly or privately to the person having authority over such
Thus, if the witnesses are students, the inquiry shall be addressed to the
teacher of the school in which they are carrying on their studies, as well as
from reliable inhabitants. If they are soldiers, from the officers and clerks of
their battalion. If the witness is a clerk, from his superiors and from his
fellow clerks in the office. If a merchant, from reliable persons who are also
merchants. If a member of a guild, from the warden of such a guild and the
members of the committee thereof. If he belongs to any other class, then from
reliable inhabitants of the district or village.
1718. A private inquiry as to the credibility of a witness is
called in technical legal language a sealed writing. The Court shall insert in
the document the name of the plaintiff and defendant, the subject matter of the
action, the names and descriptions of the witnesses, their profession, their
identity,their place of residence, the names of their fathers and their
grandfathers, or their names only it they are persons of note, together with
their description, adding finally anything which will differentiate the
witnesses from any other persons. The document shall then be sealed and placed
in an envelope and sent to the persons selected to give information as to the
credibility of the witnesses. If such persons, after perusal of the document,
consider that the witnesses whose names are written therein are trustworthy,
they shall state in writing under the names of the witnesses in question that
they consider them to be trustworthy. They shall then sign the document and
return it to the Court, sealing the envelope without allowing the person who has
brought the document, or any other person, to ascertain the contents
1719. If the persons to whom the document is addressed for the
purpose of giving the information fail to certify in writing that the witnesses
are upright and that their evidence is admissible, or if in fact they state that
they are not upright, or that they do not know them, or that they know nothing
of the condition of such persons, or that it is matter beyond their knowledge,
or make some similar statement either directly or by implication, the effect of
which is that they are unable to certify the uprightness of the witnesses, or if
they return the documents to the Court duly sealed, but without having written
anything thereon, the Court shall not accept such evidence.
Upon the occurrence of such an event, the Court shall not tell the plaintiff
that his witnesses are disqualified for giving evidence, but shall merely
instruct him to produce other witnesses if he has any. If the document states,
however, that the witnesses are trustworthy and that their evidence is
admissible, a public enquiry shall thereupon be instituted as to the credibility
of the witnesses.
1720. The public inquiry as to the credibility of witnesses is
conducted as follows: the persons called upon to give the information are
brought before the Court and the inquiry is made in the presence of the two
parties; or the two parties, accompanied by a person specially deputed for that
purpose, proceed to the place where the persons called upon to give the
information reside, and the inquiry takes place publicly in their presence.
1721. Although in the case of a private inquiry one person may
validly be selected to give information as to the credibility of witnesses, at
least two should be appointed out of consideration of prudence.
1722. A public inquiry is in the nature of evidence.
Consequently, the rules relating to evidence and the number of witnesses are
applicable in this case also. It is unnecessary, however, for the persons
selected to give informations to the credibility of the witnesses, to use the
1723. If, in the opinion of the Court, the credibility of the
witnesses has been proved in one particular case, the Court need not again
inquire into the credibility of the same witnesses, if they give evidence with
regard to some other matter before the expiration of a period of six months from
the date on which they last gave evidence. If more than six months have have
passed, however, the Court must again proceed to the enquiry.
1724. If either before or after the inquiry into the credibility
of witnesses, the person against whom the evidence is given attacks the
witnesses, alleging that they are giving their evidence for some ulterior
motive, such as avoiding a loss or realising a gain, the Court shall call upon
him to furnish proof of his allegations. If such person is able to prove his
case by evidence, the Court shall reject the evidence of such witnesses. If not,
the Court shall hold an inquiry into the credibility of the witnesses, if this
has not already been done. If an inquiry has in fact been held, the Court shall
give judgement in accordance with the evidence.
1725. In the event of some of the persons selected to give
information as to the credibility of witnesses reporting against them and of
others reporting in their favour, the Court shall give preference to the hostile
report and shall refrain from giving judgement thereon.
1726. In the event of the decease of disappearance of witnesses
who have given evidence in civil matters, the Court may still hold an inquiry
into the credibility of their evidence and give judgement accordingly.
APPENDIX. SWEARING WITNESSES.
1727. Should the person against whom evidence is given ask the Court, before giving judgement, to put
the witnesses on their oath that their evidence is not false, the Court may, If
it deems it necessary, strengthen their evidence by administering the oath. The
Court may inform the witnesses that their evidence will not be accepted unless
they swear the oath.
SECTION VII. WITHDRAWAL OF EVIDENCE.
1728. Should witnesses
who have given evidence in Court, such evidence is considered not to have been
given and the witnesses shall be reprimanded.
1729. Should witnesses who have given evidence in Court withdraw
such evidence after judgement has been delivered, the judgement stands, but the
witnesses must pay the value of the subject matter of the action to the party
against whom judgement has been given. (See Article 80).
1730. Should any of the witnesses withdraw their evidence as
mentioned above, the evidence required being given by the others, those who
withdraw need not pay the value of the subject matter of the action, but shall
be reprimanded only. If the number of witnesses, however, is not enough to give
the evidence required, half the value of the subject matter of the action must
be paid by the witness who has withdrawn, if there is one only, or if there are
more than one, then by them all in equal shares.
1731. A withdrawal of evidence, to be valid, must be made in
Court. Any withdrawal made elsewhere is invalid. Consequently, a person against
whom evidence is given will not be heard to allege that the witnesses have
withdrawn their evidence out of Court. A witness who has given evidence in one
Court may validly withdraw his evidence in another Court.
SECTION VIII. CONCLUSIVELY SUBSTANTIATED EVIDENCE.
1732. No importance is paid to the mere number of witnesses; that is to say, that if one
of the parties has more witnesses than the other, he will not be preferred for
that reason alone. If the number of witnesses, however, is so large that they
conclusively substantiate the evidence, they will be preferred.
1733. Conclusively substantiated evidence is tantamount to
1734. There is no necessity for the word "evidence" to be used in
cases of conclusively substantiated evidence and there is also no need to insist
that the witnesses should be of upright character. Consequently, there is no
need for an inquiry as to the credibility of such persons.
1735. No definite number of persons is necessary to constitute
conclusively substantiated evidence. There number must be so considerable,
however, that it would be contrary to reason to conclude that they had agreed to
tell a lie.
CHAPTER II. DOCUMENTARY EVIDENCE AND PRESUMPTIVE EVIDENCE.
SECTION I. DOCUMENTARY EVIDENCE.
1736. No action may be taken on writing
or a seal alone. If such writing or seal is free from any taint of fraud or
forgery, however, it becomes a valid ground for action, that is to say,
judgement may be given thereon. No proof is required in any other way.
1737. The Sultan's rescript, and entries in the land registers
are considered to be conclusive, since they are not tainted by fraud.
1738. As is set forth hereinafter in the Book relating to the
Administration of justice by the Courts, registers kept by the Courts in such a
way as to be free from any irregular practice or deception are considered to be
1739. Documents instituting a pious foundation are not in
themselves considered to be conclusive. If registered, however, in Court
registers which are reliable as stated above, they are then considered to be
SECTION II. PRESUMPTIVE EVIDENCE.
1740. A presumption is also a ground for judgement.
1741. A presumption is an inference which amounts to positive
knowledge.yvT C Example:- A is seen leaving an empty house precipitately with a
blood-stained knife in his hand. B thereupon enters the house and find C, who
had just had his throat cut. It is certain that A is the murdered of C. No
attention is paid to any mere possibility such as the possibility that C killed
himself. (See Article 74).
CHAPTER III. ADMINISTERING THE OATH.
1742. One ground of
judgement is taking or refusing to take the oath. Thus, should the plaintiff be
unable to prove his case, the defendant shall take an oath at the instance of
the plaintiff. If A, however, brings an action against B asserting that B is the
agent of some third person, and B joins issue, it is not essential for B to be
put on oath. Similarly, should two persons bring an action both asserting that
they have bought from C property in the possession of C, and C later admits that
he has sold the property of one of them but joins issue with the other, the oath
shall not be administered to him. In this connection,hire, and receiving a
pledge or a gift, are assimilated to purchase.
1743. Should it be intended to put one of the parties on his
oath, he shall be caused to take the oath in the name of Allah.
1744. The oath may be sworn only before the Court or before some
person representing the Court. A refusal to take oath before any other person is
of no effect.
1745. A representative may validly be employed to place a person
upon oath, but no substitution is permissible in swearing an oath. Consequently,
the advocate of a party in an action may place the other party upon his oath,
but when his client is put upon his oath, such client must swear the oath
personally and not through his advocate.
1746. The oath is only administered upon the application of the
opposite party. In four cases, however, the oath is administered by the Court
without any application:-
(1).When a person lays claim to and proves that he has an interest in the estate
of a deceased person, the Court shall require the plaintiff to swear an oath
that he has not received anything in any way whatsoever in satisfaction of his
interest from such deceased person, either directly or indirectly, nor that he
has given a release thereof, nor transferred it to any other person, nor
received anything in satisfaction thereof from any other person, nor received
any pledge by way of security for his interest from the deceased person. Such
form of oath is known as ISTIZHAR.
(2). When a person appears claiming to be entitled to certain property and
proves his case, the Court shall require an oath to be taken by such person that
he has not sold such property, nor disposed of it by way of gift, nor divested
himself in any way of the property therein.
(3). When a person wishes to return a thing purchased on account of defect, the
Court shall require him to take an oath that he did not, either expressly or
impliedly, by reason of any disposition of such a thing as if it were his own
property-- as is set forth in Article 344-- assent to the defect in the thing
(4). When the Court is about to give judgement in a case of pre-emption, the
Court shall require the person claiming the right of pre-emption to swear an
oath that he has not waived the right of pre-emption in any way whatsoever.
1747. If the defendant swears the oath at the instance of the
plaintiff without the oath being administered by the Court, such oath is of no
effect and must again be administered by the Court.
1748. When a person is about to swear an oath concerning his own
act, he must swear such oath positively, stating that the matter is so, or is
not so. But when a person is about to swear an oath concerning the act of some
other person, he must be made to swear that he has no knowledge of such matter,
that is to say, that he does not know such thing.
1749. The oath has reference either to cause or to effect. Thus,
an oath that a certain thing has or has not happened is an oath as to cause; and
an oath as to whether a thing is still continuing or not is an oath as to
effect.yvT _ Example:- An oath in an action for sale and purchase to the effect
that the contract of sale was never made at all is an oath as to cause; but an
oath as to whether the contract is still continuing is an oath as to effect.
1750. When different action are joined together, one oath is
sufficient. there is no necessity for a separate oath in each case.
1751. When in a civil action the oath is duly tendered to a
person who is called upon to take the oath and such person refuses to take the
oath, either expressly by refusing to swear, or impliedly by keeping silence
without excuse, the Court shall give judgement on such refusal. If such person
seeks to swear an oath after judgement has been delivered, the Court shall pay
no attention thereto, and the judgement shall remain intact.
1752. A dumb man may validly take or refuse to take the oath by
use of general recognised signs.
1753. A plaintiff who has stated that he has no witnesses will
not be heard to say that he intends to call witnesses. And if he has stated that
he intends to call a certain witness and no other, he will not be allowed to
call any other witness.
CHAPTER IV. PREFERRED EVIDENCE AND ADMINISTRATION OF THE OATH TO BOTH PARTIES.
SECTION I. ACTIONS REGARDING POSSESSION.
case of a dispute relating to real property, possession thereof must be proved
by evidence. Judgement will not be given that the defendant is in possession
merely as the result of the affirmation of the two parties, that is, an
admission made by the defendant in reply to the plaintiff,s claim. If the
plaintiff, however, brings an action alleging that he has brought certain real
property from a certain person, or that a certain person has wrongfully deprived
the plaintiff of possession thereof, there is no need for the defendant to prove
by evidence that he is in possession of such property. Again, if movable
property is in the possession of a person, he is the possessor thereof, and
there is no need for proof of that fact by evidence as stated above. The
statement of the two parties on this point is sufficient.
1755. In the event of a dispute arising between two persons in respect to real
property, each alleging that he is in possession of such property, the parties
shall first of all be required to prove by evidence which of them is in
possession. Should both parties produce evidence proving that they are in
possession, such proof is taken to mean that they are in joint possession.
Should one of the parties be unable to prove that he is in possession, while the
other produces satisfactory proof thereof, judgement is given for possession in
favour of the latter, and the former is considered to be out of possession. If
neither party is able to prove that he is in possession, either may demand that
the oath be administered to his opponent to the effect that he is not in
possession of such real property. If both refuse to take the oath, they are
taken to be jointly in possession of such property. If one person takes an oath,
the other refusing to do so, judgement shall be given that the person taking the
oath is in sole possession of such property and the other is considered to be
out of possession. If both persons take oath, judgement shall be given that
neither is in possession, and the real property in question shall be seized
until such time as the true facts are established.
SECTION II. PREFERRED EVIDENCE.
1756. If two persons are
joint owners of certain property, that is to say, if the two are in joint
possession thereof, and bring an action, one party alleging that such property
belongs to him alone, the other alleging that he is joint owner thereof, the
evidence given of sole ownership shall be preferred. That is to say, if the two
parties produce evidence in support of their case, the evidence of the person
claiming absolute ownership is preferred to that of the person claiming joint
ownership. If both of them claim to be absolute owners and produce evidence in
support thereof, judgement shall be given that they are joint owners thereof. If
one of the parties can produce no evidence and the other proves his case,
judgement shall be given that the latter is sole owner of such property.
1757. In an action for absolute ownership, the evidence of the person not in
possession is preferred if no date is mentioned.yvT | Example:- A brings an
action with regard to a house in the possession of B, alleging that the house is
his property and that B is wrongfully in possession thereof and asking that B
should be evicted and the house restored to him. If B alleges that the house is
his property and that consequently he is lawfully in possession thereof, the
evidence of A will be preferred and heard.
1758. Actions relating to ownership arising from causes which are
capable of repetition, as for example purchase, are regarded as identical with
actions arising out of absolute ownership, if the date is not mentioned. In such
cases, also the evidence of the person who is not in possession is preferred to
that of the person in possession. Should both parties, however, claim that their
right of ownership is held from one and the same person, the evidence of the
person in possession is preferred.yvT L Example:- A brings an action claiming a
shop in the possession of B, alleging that he bought such shop from one Veli
Agha, and that B in this connection wrongfully took possession of the shop. B
comes into Court and alleges that he bought the shop from one Bakir Effendi, or
that he inherited it from his father, which is the reason for his being in
possession. The evidence of A, the person not in possession, is preferred and
heard. But if B, the person in possession, alleges that he bought the shop from
Veli Agha, B's evidence is preferred to that of A, the person not in
1759. In actions relating to ownership arising out of a cause which is
incapable of repetition, as in the case of an animal giving birth to young,
evidence of the person in possession is preferred. Consequently, in the event of
a dispute relating to a colt between a person not in possession and one who is,
and each party alleges that the colt is his property born from his own mare, the
evidence of the person in possession is preferred.
1760. in a claim for ownership dependent on date, the evidence of
the person giving the earliest date will be preferred.yvT U Example:- A brings
an action relating to a plot of land in the possession of B, alleging that he
bought such land a year ago from C. B by his answer states that the land
developed upon him by way of inheritance from his father, who died five years
ago. The evidence of the person in possession is preferred. But if B states that
he inherited the land from his father who died six months ago, the evidence of
the person not in possession is preferred. If each of the two parties alleges
that he has bought the subject matter of the action from different persons, and
each gives the date at which the person selling to them acquired the thing in
question, the evidence given by the person giving the earliest dates will be
1761. In actions relating to the young of animals, no attention
is paid to date, the evidence of the person in possession being preferred, as
stated above. But if there is a discrepancy between the age of the animal which
is the subject of the action and the date given by the person who is not in
possession, the evidence of the latter is preferred. If the age of the animal is
unknown, however, or if it is different from either date given, the evidence of
neither is accepted, and the animal shall not be taken away from the person in
1762. The greater claim is preferred.yvT - Example:- Vendor and
purchaser disagree as to the quality or price of the thing sold. The evidence
given by the party claiming most will be preferred.
1763. Evidence as to ownership is preferred to evidence as to
loan for use.yvT
Example:- A claims the return of property in the possession of B, alleging that
he lent the property to B for B's use. B by his reply alleges that A sold the
property to him or bestowed it upon him by way of gift. The evidence as to the
sale of the gift is preferred.
1764. Evidence as to sale is preferred to evidence as to gift, or
pledge, or hire, and the evidence of hire to the evidence of pledge.yvT
Example:- A demands payment for certain property from B, which A alleges he
sold B. B replies that A made a gift of such property to him and gave delivery
thereof. The evidence of sale id preferred.
1765. In cases of a loan for use, the evidence in favour of a
general loan is preferred.yvT Example :- A lends his horse to B to use. The
horse dies while in the possession of B. A sues B for the value of the horse,
alleging that he lent B the horse for a period of four days and on the fifth day
it died without having been returned. B by his reply alleges that A did not
limit the loan of the horse to a period of four days, but made the loan in
general terms. The evidence of the person to whom the horse was lent is
1766.Evidence given as to good health is preferred to evidence
given as to a mortal sickness.yvT 8 Example:- A makes a gift to one of his heirs
and dies. Another heir alleges that the gift was made during the course of a
mortal sickness. the person in whose favour the gift was made alleges that the
gift was made while in good health. The evidence of the person in whose favour
the gift was made is preferred.
1767. Evidence of soundness of mind is preferred to evidence of
madness of imbecility.
1768. In the event of evidence being given concurrently as
regards new and old things the evidence as to the new things is preferred.yvT
Example:- A possesses a right of flow upon the lands of B held in absolute
ownership. A difference of opinion arises between them as to whether such right
is of ancient or recent origin. The owner of the house alleges that it is of
recent origin and demands the extinction of the right. The owner of the right of
flow claims that such right is of ancient origin. The evidence of the owner of
house is preferred.
1769. In the event of the person whose evidence is preferred
being unable to prove his case by production of evidence, evidence is asked for
from the person whose evidence has not been preferred. If he proves his case,
his evidence shall be accepted; if he fails to do so, the oath shall be
administered to him.
1770. In the event of the person whose evidence is preferred
being unable to prove his case by the production of evidence as stated above,
and if the party whose evidence is not preferred produces evidence, judgement
shall be given in his favour. If the person whose evidence has been preferred
wishes to produce evidence thereafter, such evidence shall not be heard.
SECTION III. PERSONS WHOSE EVIDENCE IS PREFERRED. JUDGEMENT BASED
ON CIRCUMSTANTIAL EVIDENCE.
1771. If a husband and wife disagree as to the
things in the house in which they dwell, the nature of the things must be
examined. In the case of things suitable for the husband only, such as gun or a
sword, or of things suitable for both, such as domestic utensils and furniture,
the evidence of the wife is preferred. If both are unable to advance any proof,
the husband may make a statement on oath. That is to say, if he states on oath
that the things in question do not belong to his wife, judgement shall be given
in his favour.
The evidence of the husband is preferred as regards things suitable for women
only, such as clothing and jewellery. If both are unable to advance any proof,
the wife may make a statement on oath. If one of the two makes and sells things
which are suitable for the other, that person in any case may make a statement
on oath.yvT , Example :- An earring is a piece of jewellery suitable for a
woman. If the husband is a jeweller, he may make a statement on oath.
1772. Upon the death of one of the spouses, the heir stands in
the place of the person from whom he inherits. If the two parties, as stated
above, are unable to produce any proof as regards things suitable for both, the
surviving spouse may make a statement on oath. Should both spouses have died at
the same time, the heir of the husband may make a statement on oath as regards
things suitable for both of them.
1773. Should a donor wish to revoke a gift and the beneficiary
alleges at the trial of the action that the subject matter of the gift has been
destroyed, the beneficiary may make statement not on oath.
1774. A person to whom a thing has been entrusted for safekeeping
shall make a statement on oath as regards any question of his release from
liability. Thus,if a person who has entrusted his property to another for
safekeeping, brings an action against such person, and the latter by his reply
alleges that he has returned the thing entrusted to him for safekeeping, such
person shall make a statement on oath. But if he wishes to bring evidence in
order not to swear an oath, such evidence shall be heard.
1775. If a person is indebted to another in respect to various sums of money
and such person makes a payment to the creditor and an action is brought to
determine in respect to which particular debt the payment has been made, the
debtor shall make a statement.
1776. If a lessee of a mill seeks to deduct a portion of the rent
of such mill after the expiration of the term of the lease by reason of the
water having been cut off for a certain period during the currency of the lease
and the lessor and lessee disagree thereon, and there be no evidence available,
the nature of the case must be examined.
If the point at issue is the period of time during which the water was cut off,
for example, if the lessee claims that it was ten days and the lessor five only,
the lessee may make a statement on oath.
If the point at issue is as to whether the water has been cut-off at all, that
is to say, if the lessor absolutely denies that the water was cut off, judgement
shall be given based on the circumstantial evidence of the case. Thus, if the
water is running at the time the action is instituted and heard, the lessor
shall make a statement on oath. If the water is not running at the time, the
lessee shall make a statement on oath.
1777. If a dispute arises as to whether the channel along which
water is flowing to a person's house is old or new, and the owner of the house
alleges that it is new and wishes to remove it neither party can produce any
evidence, the nature of the case must be examined. If the water is flowing at
the time the case is instituted, or if it is a well-known fact that the water
was flowing there formerly, no change shall be made in such channel. The owner
of the channel may make a statement on oath, that is to say, he shall be caused
to take an oath that the channel is not new.
If at the time the case was instituted there was no water running in the channel
and it is not known whether water flowed there formerly, the owner of the house
may make a statement on oath.
SECTION IV. ADMINISTRATION OF THE OATH TO BOTH PARTIES.
1778. If a dispute occurs between vendor and purchaser as to the amount of the
price, or the amount of the thing sold, or both, or as to the description or
type thereof, judgement is given in favour of whichever of the two produces
evidence. If both of them produce evidence, judgement is given in favour of the
party who produces evidence for the greater amount.
If neither of the parties can prove their case, they shall be informed that
either one party must admit the claim of the other, or the sale will be declared
void. If neither party admits the claim of the other, the Court shall put each
party upon his oath as to the claims of the other party, beginning with the
purchaser. If either party refuses to take the oath, the other is taken to have
proved his case. If both parties swear an oath, the Court shall declare the sale
1779. If a person taking a thing on hire has a dispute with a
person giving a thing on hire with regard to the amount of the rent before
taking possession of the thing hired, and an action is instituted in Court in
connection therewith, judgement shall be given in favour of the person who
produces evidence, as, for example, where the person taking the thing on hire
alleges that the rent is so much and the person giving the thing on hire alleges
that the rent is so much.
If both produce evidence, judgement shall be given in favour of the person
giving the thing on hire.
If neither of the parties can prove their case, both of them are put on oath,
beginning with the person taking the thing on hire, judgement being given
against the person who refuses to take the oath.
If both parties take the oath, the Court shall declare the contract of hire to
Should a dispute arises as to any question of time or distance, the matter shall
be dealt with in the same manner. Provided, however, that if both parties
produce evidence, judgement shall be given on the evidence of the person taking
the thing on hire. If the oath is administered to both parties, the person
giving the thing on hire shall first be put on oath.
1780. In the event of a dispute arising between the person giving
and the person taking a thing on hire, as is set forth in the preceding Article,
after the period of the contract of hire has expired, the oath is not
administered to both parties. The person taking the thing on hire alone may make
a statement on oath.
1781. If the person giving a thing on hire and the person taking
a thing on hire have a dispute as to the amount of the rent during the period of
the contract of hire, both parties shall be put on oath, and the contract
cancelled as regards the remainder of the period. The person taking the thing on
hire may make a statement as to the portion relating to the period which has
1782. If a dispute arises between vendor and purchaser as to a
thing sold which has been destroyed while in the possession of the purchaser, or
if a defect of recent origin has been revealed which prevents such thing being
returned, the oath is not administered to both parties, but to the purchaser
1783. If an action is brought with regard to the due date of any
particular thing, that is to say, whether the time for the performance of such
thing has arrived or not, or with regard to a right of option, or as to whether
the whole amount or part only of the price has been received, the oath is not
administered to both parties, but in these three cases only to the person who
PROMULGATED BY ROYAL IRADAH, 26TH SHAABAN, 1293.