How is ownership determined if a shared wall is physically connected to the construction of only one of the claimants?

General Chapter

Al-Mughni

Book of Settlement

Book 16 · Issue 3 · Bab 1

Open in Qurani

Primary text

If the wall is connected to the construction of one party only, it belongs to that party, provided they take an oath. This is the view of Abu Hanifa and Al-Shafi'i. The rationale is that the appearance suggests the entire connected structure was built as one unit, thus the wall belongs to the owner of the connected construction. The connection that cannot be newly established (like mortar joints) is given precedence as evidence of established ownership, similar to the strength of possession (*yad*). The oath is required because the connection is only presumptive (*dhahir*) and not absolute certainty, as it is possible the owner built it as a gift or for compensation.

Supporting text

Abu Thawr holds that the connection to the construction does not grant preference; the connection itself should not be considered in the judgment.