Is it permissible to construct a shop, project a balcony (rawshan), or an overhead passage (sabat) onto a non-thoroughfare alley (darb ghayr nafidh)?
General Chapter
Al-Mughni
Book of Settlement
Primary text
Construction of a shop, projecting a rawshan, or a sabat onto a non-thoroughfare alley is not permissible without the permission of the alley's residents. This position is held by Al-Shafi'i if the owner has no door opening onto the alley. The ruling rests on the basis that this construction involves building into the airspace belonging to specific individuals. If the residents grant permission, the action becomes permissible because the right belongs to them, analogous to the situation where the property owner is singular. It is also permissible if the residents enter into a settlement (sulh) regarding this matter for a known compensation.
Supporting text
Among the companions of Al-Shafi'i, there is a difference of opinion: some prohibit it even if the owner has a door onto the alley, while others permit the projection of the wing or the sabat, arguing that since the owner has a right of passage (istirāq) in the alley, he possesses the airspace, just as he would in a thoroughfare alley. This analogy is rejected.