Is there liability for opening a cage or loosening a tether resulting in the creature escaping?
General Chapter
Al-Mughni
Book of Usurpation
Primary text
Liability for damages is established upon opening a cage from which a bird flies away or untying a tethered animal that then leaves. Imam Malik holds this view. The basis for this is that the escape occurred due to an action initiated by the individual, which is analogous to actively driving the creature away or the escape immediately following the action. Since the creature acts according to its natural disposition to flee once the restraint is removed, the responsibility falls upon the one who removed that restraint, similar to someone cutting the cord of a lamp causing it to fall and break.
Supporting text
Imam Abu Hanifa and Imam Al-Shafi'i hold that there is no liability unless the individual actively agitated the creature causing it to leave. Scholars within the Shafi'i school offer a nuanced view: if the bird or animal remains stationary after the cage is opened or the tether is released, and then leaves later, there is no liability. However, if the escape occurs immediately following the act, there are two differing opinions within that school. Their evidence rests on the principle that the creature exercised a choice, and the opener performed a direct act without being compelled.