باب ما لا يضمن من الجناياتOffenses That Do Not Require Compensation

¹ His statement: “The injury caused by a dumb animal is waived”: Abu Hanifah deduced from this that if livestock destroys another’s property without its owner present, there is no liability on the owner, whether at night or day. If the owner is present, if he is driving it, he is liable for what it destroys in any case. If he is leading or riding it, he is liable for what it destroys with its mouth or hand, but not for what it destroys with its foot unless he drives it to destroy or intends it, then he is liable due to his transgression. Al-Shafi’i said: "If livestock destroys another’s property by day without its owner present, there is no liability on the owner. If the owner is present, he is liable for what it destroys, whether riding, driving, leading, or it is standing with him, whether it destroys with its hand, foot, or mouth." Abu Hanifah’s companions answered that “the dumb animal is waived” is general, so its generality must be applied, and transgression is outside of it. (Umdat al-Qari and Al-Musawwa, excerpted from them). It is said in (Al-Ta’liq al-Mumajjad): "The waiver is not specific to injury but includes all destructions. Iyad said: 'He mentioned injury as it is the most common, or as an example indicating others.'"

² His statement: “The mine is waived, and the well is waived”: Meaning, if a man hires another to dig a well or mine, and the well or mine collapses on the digger, killing him, it is waived, with no liability, due to the absence of causation or direct action from him. (Muwatta’ Muhammad and Al-Ta’liq al-Mumajjad, excerpted from them).

¹ His statement: “He waived his incisor” etc.: The scholars differed on this. A group said: "If someone bites another’s hand, and the bitten one pulls his hand from the biter’s mouth, dislodging some of the biter’s teeth, there is nothing upon him for the tooth." This is narrated from Abu Bakr Al-Siddiq and Shurayh, and it is the view of the Kufans and Al-Shafi’i. They said: "If the bitten one injured him elsewhere, he is liable for it." Ibn Abi Layla and Malik said: "He is liable for the blood money of the tooth." The Hadith of this chapter is evidence for the first group. So it is in (Umdat al-Qari). It is said in (Nayl al-Awtar): "This Hadith indicates that if an offense occurs due to the victim, like the mentioned incident and similar, there is no retribution or compensation. The majority hold this view, but with the condition that the bitten one, for example, could not free his hand or similar by a lesser means, and that the bite was painful. The apparent evidence does not require this condition. It is said: 'It is from qualifying with general rules.'"

¹ His statement: “He said: 'What if I kill him?' He said: 'He is in the Fire'”: This permits killing one who intends to take property unjustly, whether little or much, due to the generality of the Hadith. This is the view of the majority of scholars. Some of Malik’s companions said: "It is not permissible to kill him if he demands something minor like a garment or food." This is nothing, and the correct view is that of the majority. It also indicates that if the aggressor is killed, there is no blood money or retribution for him, and if the defender is killed, he is a martyr. So it is stated in (Umdat al-Qari). It is said in (Al-Mirqat): "The general view of the scholars is that if a man’s property, life, or family is targeted, he may repel the aggressor by the best means. If he cannot prevent it except by fighting and kills him, there is nothing upon him." It is said in (Al-Durr al-Mukhtar): "Whoever transgresses against a man’s sanctities, it is permissible for him to kill him, even if he does not find evidence, so retribution applies in worldly rulings, and there is no sin in the hereafter." In another place: "If someone enters another’s house at night and steals, and the owner follows and kills him, there is nothing upon him, due to his (ﷺ) statement: 'Fight for your property.' Likewise, if he kills him before taking, if he intended to take his property and could not repel him except by killing." (Sadr al-Shari’ah).

² His statement: “Whoever is killed defending his property is a martyr”: It is said in (Al-Durr al-Mukhtar): "It is permissible to fight for one’s property, even if it does not reach the minimum amount, and to kill whoever fights him for it, due to the generality of the Hadith: 'Whoever is killed defending his property is a martyr.'" (Fath).

¹ His statement: “And you blind his eye, there is no sin upon you”: In (Al-Qunyah): "If someone looks through the door of another’s house and the man blinds his eye, he is not liable if he could not remove him without blinding him. If he could, he is liable." Al-Shafi’i said: "He is not liable in both cases. If he inserted his head and was hit with a stone, blinding him, there is no liability by consensus. The disagreement is only if he looked from outside." So it is in (Al-Durr al-Mukhtar). It is said in (Radd al-Muhtar): "In (Mi’raj al-Dirayah): If someone looks into another’s house through a hole or door crack or similar, and the owner stabs him with a stick or throws a pebble, blinding his eye, he is liable per our view. Per Al-Shafi’i, he is not liable, due to what Abu Hurayrah narrated that he (ﷺ) said: 'If a man peeks at you without permission and you throw a pebble at him, blinding his eye, there is no sin upon you,' and his (ﷺ) statement: 'For the eye, half the blood money,' which is general. Merely looking does not permit offending him, like looking through an open door or entering his house and looking or touching his wife short of intercourse; it does not permit blinding his eye. His (ﷺ) statement: 'The blood of a Muslim is not lawful except for one of three,' implies that his sanctity is not waived. The intent of what Abu Hurayrah narrated is to emphasize deterrence. Similar in Ta’ from Al-Shamni. His statement: 'Like if he entered his house,' etc., contradicts what the commentator, the author of (Al-Durr al-Mukhtar), mentioned, unless what he mentioned is when removal is not possible without it, and here when it is possible, so reflect, and Allah knows best."

¹ His statement: “Forbade guiding a sword” etc.: Ibn Al-Malik said: The prohibition in these two Hadiths is one of disapproval and compassion. So it is in (Al-Mirqat).

¹ His statement: Al-Qasama: With a fatha on the first letter, it refers to oaths sworn by the residents of a locality where a slain person is found, according to our view. According to Al-Shafi’i, it is sworn by the heirs of the victim claiming blood money due to the unknown identity of the killer. Its cause is the occurrence of a killing in the locality or its equivalent. Its condition is their statement: “By Allah, we did not kill him, nor do we know his killer.” Its requirement is that the oath-taker be a free, sane man. Malik said: Women are included in qasama for unintentional killing, not intentional. Its ruling is that the judgment is enforced, and blood money is imposed after the oath, whether the claim is for intentional or unintentional killing.