at night, and the custom of those who own walled gardens is to guard them by day, not at night. Therefore, when they go out at night, the negligence lies with their owners for failing to guard them during the time it is customary to do so. If they cause destruction by day, the negligence lies with the owners of the crops, so they are liable for it. The Prophet (peace and blessings of Allah be upon him) distinguished between the two, and decreed that every person must guard their property at the time of its customary protection. As for property other than crops, there is no liability; for livestock do not customarily destroy such things, so there is no need to guard against them, unlike crops.
Section: Some of our companions said: Their owner is only liable for what they destroy at night if the negligence was on his part by sending them out at night, or sending them out by day and not securing them at night, or securing them in a way that allows them to get out. But if he secured them and someone else let them out without his permission, or opened their gate for them, then the liability is upon the person who let them out or opened the gate; for he is the one who caused the destruction. Al-Qadi said: In my view, this issue applies to a location containing farms and pastures. As for inhabited villages where there is no grazing land except for small plots, such as an irrigation canal, a road, or the edge of a crop field, the owner does not have the right to send them out without someone to guard them from the crops. If he does so, he is liable due to his negligence. This is the opinion of some of the Shafi'i companions.
Section: If the livestock destroys something other than crops, their owner is not liable for what they destroyed, whether by night or by day, unless he had possession (yad) over them. It is narrated from Shurayh that he ruled in a case where a sheep fell into a weaver's yarn at night that the owner of the sheep was liable. Shurayh recited: "When the sheep of the people grazed therein" (21:78). He said: "Nafsh" (grazing) only occurs at night. From al-Thawri: He is liable even if it is by day, because he was negligent
(3) In the original manuscript: "al-zuru'" (the crops). (4) In the original manuscript: "arsalaha" (he sent them out). (5) In manuscript M: "yadummuha" (secures them). (6) In manuscript M: "dammaha" (he secured them). (7) A "qarah" of land is a plot cleared for cultivation without buildings on it. (8) In the original manuscript: "fa'ala" (he did). (9) Surah al-Anbiya, 78.
