What is the liability for damages caused by digging a well in jointly owned property without the full permission of all co-owners?
General Chapter
Al-Mughni
Book of Blood-Money (Diyyāt)
Primary text
The digger is fully liable for all damages caused by the well in jointly owned property when digging without the explicit permission of all co-owners. This liability stems from the fact that the act of digging itself constitutes trespass (ta'addi) over the entire property, similar to digging on entirely foreign land. The joint ownership structure necessitates the permission of all parties for such an action; therefore, the transgression covers the entirety of the damage.
Supporting text
Abu Hanifa states that the digger is only liable for damages corresponding to the share of the partners whose permission was lacking. Abu Yusuf argues that liability should be split in half, likening it to a situation where multiple parties contribute to an injury, suggesting a division of liability proportional to the dual nature of the damage causation.