Section: If a slave digs a well in someone else's property without their permission, or on a road where it causes harm, and then his master emancipates him, and subsequently something is destroyed by it, the slave is liable for it. Al-Shafi'i stated this. Abu Hanifa said: The liability is upon his master, because the offense is the digging which occurred during his state of enslavement, and the liability for his offense at that time was upon his master; thus, it does not cease upon his emancipation, just as if he had inflicted a wound while a slave, and the effects of that wound spread after his emancipation. Our argument is that the destruction that necessitates liability occurred after his emancipation, so the liability is upon him, just as if he had purchased a sword while a slave, and then killed with it after his emancipation. It differs from the case they compared it to, because the act of destruction that necessitates liability occurred during his state of enslavement, whereas here it occurred after his emancipation. The same ruling applies to the installation of a stone or any other causes that necessitate liability.

Section: If (34) a person digs a well on property owned jointly by him and someone else, without the other's permission, he is liable for everything that is destroyed by it (35). This is the analogical deduction of the Shafi'i school. Abu Hanifa said: He is liable for what corresponds to the share of his partner; if he had two partners, he would be liable for two-thirds of what was destroyed, because he transgressed regarding his partners' shares (36). Abu Yusuf said: He bears half the liability, because it was destroyed from two sides, so the liability is divided into two halves, as if one person inflicted a wound upon him and another person inflicted two wounds. Our argument is that he is a transgressor by digging, so he is liable for what falls into it, just as if it were on someone else's property; and the co-ownership made his act a transgression regarding the entire digging, so it necessitates full liability. The point mentioned by Abu Yusuf is invalidated by the case where one digs in a shared road, for he has a right in it, yet he is liable for everything. The ruling in the case where (37) some of the partners permit him to dig and others do not is the same as the ruling in the case of digging on property owned jointly by him and someone else, because neither digging nor exercising control is permitted until all give permission.

Section: If he digs a well on someone else's property, or places anything there upon which liability depends, and the owner absolves him of liability for what might be destroyed by it, there are two views regarding this: One is that he is absolved, because if the owner had permitted it from the outset, he would not be liable for what was destroyed by it; therefore, when he absolves him of liability and permits it, the liability is removed from him, just as if the permission had been contemporaneous with the digging. The other view is that the liability is not negated, because it is a cause that necessitates liability, so its legal effect is not removed by absolution, like all other causes; and because the realization of liability therein is due to his having transgressed by digging it, and absolution does not remove that, for the past cannot be altered from the state in which it occurred. Furthermore, the owner does not have the right to absolve him from the obligation of liability, just as if someone other than the owner were to absolve him, and because it is an absolution from that which has not yet become obligatory, so it is invalid, like absolution from pre-emption before the sale.