the owner from 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 (38), 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.

Section: If (39) he hires a worker, and he digs in someone else's property without their permission, and the worker knows this, the liability is upon him alone, because he is a transgressor by digging, and he is not permitted to do so for a wage or otherwise; therefore, the liability is attached to him, just as if someone else ordered him to kill and he killed. If he did not know, the liability is upon the hirer, because he deceived him, so the liability is attached to him, as is the sin. The same ruling applies to building and the like. If he hires a worker to dig a well for him on his own property, or to build (40) a structure for him therein, and the worker is destroyed by that, the hirer is not liable. This was stated by 'Ata', al-Zuhri, Qatada, and the scholars of opinion (Ashab al-Ra'y). It resembles the school of al-Shafi'i, due to the saying of the Prophet (peace and blessings of Allah be upon him): "The well is a waste" (41). This is because he did not destroy him; rather, the worker acted of his own volition in a manner that led to his own destruction, so it is similar to the case where he did so voluntarily on his own accord. Unless the worker is a slave whom he hired without his master's permission, or a minor without his guardian's permission, in which case he is liable (42), because he is a transgressor by employing him, and is a cause leading to the destruction of another's right.

Section: If a person digs a well on his own property, and a person or animal falls into it, and is destroyed by it, and it was