The jurists also differed, under this heading, about the man who asks his neighbor to lend him part of his wall so that he may fix a beam in it for his own use—something that brings him benefit without harming the wall’s owner—and, more generally, about every case in which the borrower benefits while the lender suffers no loss.

Mālik and Abū Ḥanīfah maintain that the judge may not compel the owner, for a loan for use (ʿāriyah) is not enforceable in court. Al-Shāfiʿī, Aḥmad, Abū Thawr, Dāwūd, and a number of ḥadīth scholars hold the contrary: a court may order the owner to oblige.

Their evidence is the report transmitted by Mālik from Ibn Shihāb, from al-Aʿraj, from Abū Hurayrah: the Messenger of Allah—peace and blessings be upon him—said, “Let none of you prevent his neighbor from setting a beam in his wall.” Abū Hurayrah would then say, “Why do I see you turning away from this? By Allah, I will fling that beam between your shoulders!”

They further cite what Mālik narrates from ʿUmar ibn al-Khaṭṭāb: al-Ḍaḥḥāk ibn Qays channeled a canal from al-ʿArīḍ and wanted it to pass through the land of Muḥammad ibn Maslamah. Muḥammad refused. Al-Ḍaḥḥāk said, “You are stopping me even though it benefits you—you will water from it first and last, and it will not harm you.” Muḥammad still refused. Al-Ḍaḥḥāk took the case to ʿUmar. ʿUmar summoned Muḥammad ibn Maslamah and ordered him to let the canal pass. Muḥammad said, “No.” ʿUmar replied, “Do not withhold from your brother what benefits him and does not harm you.” Muḥammad again said, “No.” ʿUmar then swore, “By Allah, it will pass, even if over your belly!” He therefore commanded that the canal be allowed through, and al-Ḍaḥḥāk proceeded.

There is also the ḥadīth of ʿAmr ibn Yaḥyā al-Māzinī, from his father: “In my grandfather’s orchard there was a small watercourse belonging to ʿAbd al-Raḥmān ibn ʿAwf. He wished to move it to another part of the orchard, but the owner refused. ʿAbd al-Raḥmān appealed to ʿUmar ibn al-Khaṭṭāb, and ʿUmar ruled that he may relocate it.” Al-Shāfiʿī criticized Mālik for including these ḥadīths in his Muwaṭṭaʾ yet declining to rule according to them.

Mālik and Abū Ḥanīfah, for their part, rely on the Prophet’s statement: “It is not lawful to take a Muslim’s property except with his willing consent.” Others reply that the general import of this ḥadīth is qualified by the reports just cited, especially the ḥadīth of Abū Hurayrah. Mālik considers those reports merely recommendatory; and when a text can plausibly be construed either as a specific exception or as an exhortation, giving it the latter sense is preferable, because restricting a general text by a specific one is obligatory only when reconciliation is impossible and true contradiction exists.

Asbagh relates from Ibn al-Qāsim that ʿUmar’s judgment against Muḥammad ibn Maslamah in the canal case is not to be followed, whereas his ruling for ʿAbd al-Raḥmān ibn ʿAwf regarding the relocation of the watercourse is to be followed, for moving the watercourse was deemed easier than forcing a new path where none had existed before. This much suffices for our present purpose.