Does a person who digs a well on another's land, placing something that incurs liability within it, become exempt from liability if the landowner absolves him from the liability for damage caused by it?
General Chapter
Al-Mughni
Book of Blood-Money (Diyyāt)
Primary text
One view holds that the digger is absolved from liability. This is because if the landowner had permitted the digging initially, the digger would not have been liable for subsequent damages. Thus, when the landowner absolves him from liability and permits the act, the liability is removed, similar to a situation where permission is given concurrently with the digging.
Supporting text
The opposing view maintains that the liability does not cease because digging is a cause that necessitates liability, and this effect is not removed by absolution, similar to other causes. Liability is imposed because the digger committed an act of transgression by digging, and absolution does not remove this past act. Furthermore, the obligation of liability is not a right that the landowner may absolve, just as if a non-owner had absolved him. Moreover, it is an absolution concerning something not yet obligatory, which is invalid, akin to absolving oneself from the right of pre-emption before a sale occurs.