Is it permissible to agree upon a settlement (*sulh*) for the continued presence of the branches in exchange for compensation?
General Chapter
Al-Mughni
Book of Settlement
Primary text
There is a difference of opinion among our associates regarding the validity of settling for the branches remaining. Ibn Hamid and Ibn Aqil permit such a settlement whether the branch is fresh (*rutab*) or dry (*yabis*). They argue that uncertainty concerning the subject of the settlement does not invalidate the agreement, provided that delivery (allowing the presence) is possible, unlike the compensation, which requires certainty for its delivery. They justify this by necessity, as this issue frequently arises between adjacent property owners, and cutting involves destruction and harm. They also note that newly generated growth is excused, similar to newly generated fat on a rented mount or new offspring for one renting a room, or the growth of rented trees.
Supporting text
Abu al-Khattab holds that settlement is invalid in all cases, fresh or dry, because fresh branches increase and change, while dry ones diminish or disappear entirely. Al-Qadi permits the settlement only if the branch is dry and rests directly on the wall, as the resulting change is predictable, but denies validity if the branch is fresh (due to continuous change) or if it does not rest on the wall (as it is merely a dependent of the airspace). The view conforming to the madhhab of Ahmad supports the validity because uncertainty in the subject of the settlement is permitted when its certainty cannot be ascertained due to necessity and because delivery is not required; the airspace is treated like the physical property, making settlement permissible.