Is an unwilling co-owner compelled to rebuild a demolished shared wall?
General Chapter
Al-Mughni
Book of Settlement
Primary text
There are two scholarly reports regarding the compulsion of a co-owner to rebuild a shared wall that has been demolished, when the other co-owner demands its reconstruction. The sounder opinion, narrated by Ibn al-Qasim, Harb, and Sindi, states that the unwilling party is compelled. This view is supported by Al-Qadi and Ibn Aqil, aligning with one report from Malik and the old opinion of Al-Shafi'i. The evidence rests on the principle that leaving the wall down constitutes harm (darar), necessitating compulsion, similar to compelling division upon request or demolition when collapse is feared. This is substantiated by the Prophetic saying, 'No harm nor requital of harm shall there be' (La darara wa la dirar). Both co-owners suffer harm by leaving the wall unrebuilt.
Supporting text
The opposing report holds that the co-owner is not compelled to rebuild. This view, supported by a report from Ahmad, aligns with the position of Abu Hanifa. The reasoning is that the wall is property without inherent sanctity, so its owner cannot be forced to spend on it, just as if he owned it exclusively. Furthermore, rebuilding a wall does not mandate compulsion, unlike initiating construction. Compulsion is unjustified because the obligation cannot be solely for the individual's right, nor for the neighbor's right exclusively, nor for both concurrently when neither independently necessitates it, differentiating it from division which removes harm without causing harm. Unlike the case where demolition is compelled due to fear of collapse causing damage to other property, leaving the wall down is deemed leaving a benefit, not inflicting harm, as the harm arose from the initial demolition.