we say here that the liability falls upon their owner, because people sleep at night and do not keep watch over their property. During the day, however, the livestock owner is not liable, because those who own property are responsible for protecting it.

The established position of the school also distinguishes between one who is negligent in securing his livestock and one who is not. That is, if a person has secured his livestock at night—whether by tethering, shackling, fencing, or enclosing them with a wall—and they nevertheless escape despite his having taken every precaution, then he is not liable, because he was not negligent. It is customary for people to secure their livestock and then sleep. Thus, if they escape, for example, by chewing through their tether until it breaks, or by scaling a wall that livestock would not normally be able to scale, then there is no liability. In fact, it may be said that this is a sound view, since the person has neither been negligent nor committed a transgression. If he has neither been negligent nor transgressed, then he bears no liability. This falls under the general meaning of the Prophet’s statement, peace and blessings be upon him: “Damage caused by an untended animal is not subject to compensation” (1).

The basis of the disagreement is whether the determining factor in the ruling is the negligence of the livestock owner or the negligence of the owner of the damaged property. If we say that the determining factor is the negligence of the owner of the damaged property, then we distinguish between crops and other property. We say that, by customary practice, things other than crops are kept behind doors and protected in dwellings, unlike crops, which are out in the open. But if we say that the determining factor is the negligence of the livestock owner, then we say that there is no distinction between crops and anything else, because the livestock owner upon whom liability is imposed is the one who was negligent. This is closer to the view that the determining factor is the negligence of the property owner.