IN THE COURTS OF THE NATIONS - DataSpace - Princeton ...

In another instance of oath avoidance, the Jew Ḥaim b. Ya‘aqov Harosh sued the Muslim
Aḥmad b. ‘Abd al-Mālik al-Tabrānī over ownership of a mechanized mill (probably for grinding
flour). 186 Ḥaim claimed that he owned the mill even though it was in Aḥmad’s possession, but
he could not prove his case. Ḥaim resorted to demanding that Aḥmad take an oath establishing
that he—and not Ḥaim—was the true owner of the mill. Although Aḥmad could have easily
ended the case in his favor by taking an oath to this effect, Aḥmad and Ḥaim instead reached a
compromise (ṣulḥ). 187 They agreed to have the machine’s value appraised by an expert
(mu‘allim mawākinā) and whoever kept the machine would pay the other half its price. It is
essential to point out that Aḥmad’s advantage of having the possibility of taking an oath had
nothing to do with the fact that his opponent was a Jew. Rather, the dénouement of this case
followed the procedural guidelines laid out in Islamic law, which stipulated that if the plaintiff
could not provide proof then he could demand an oath from the defendant. Nonetheless, Aḥmad
refused to take an oath against the word of a Jewish plaintiff. This is another instance in which
Jews’ experience in sharī‘a court owed more to the nature of Islamic law than to the fact that
they were Jews. 188
Despite their shared aversion to oath-taking, Jews and Muslims appearing in the Assarraf
collection did sometimes take oaths. For instance, in a case in which Shalom had to confirm that
his debtor, Mālik b. Laḥsan al-Sūsī, still owed him an outstanding debt, Shalom went to the
186
TC, File #9, 1 Rabī‘ I 1301. In fact, the nature of the contested item is somewhat unclear; it was referred to as a
“French machine” (al-majānna afrānsīsī [sic]): in the Moroccan context, “machine” (usually written as mākīna)
typically meant an automated mill for grinding wheat into flour, olives into oil, etc. (see Holden, The Politics of
Food in Modern Morocco, 48). On the introduction of mechanized mills in Morocco more generally, see ibid.,
Chapter 2.
187
This is recorded in an entry on the reverse of the document.
188
For more instances of oath avoidance, see File #10, 7 Muḥarram 1302; File #1, 22 Dhū al-Qa‘da 1323. See also
the incident discussed above (in the discussion of releases), File #6, 8 Ṣafar 1327. At times, the legal document
specifically says that one or both parties dropped the requirement of the oath from the other: File #10, 9 Rabī‘ I
1296; File #2, 25 Rabī‘ I 1298; File #4, 13 Ṣafar 1302; File #1, 14 Dhū al-Qa‘da 1322; File #5, 9 Shawwāl 1332.
115