The jurists also disagreed, within this same chapter, over the stage of fetal development that makes a ghurrah obligatory.

Mālik said: “Whatever the woman expels—be it a lump of flesh (mudghah) or a blood-clot (ʿalaqah)—so long as it is known to be a child, a ghurrah is due.”

Al-Shāfiʿī said: “Nothing is payable until the fetus’s form is clearly distinguishable.” The sounder view is to link the ruling to the breathing of the spirit—that is, a ghurrah becomes mandatory once it is established that life had already existed in the fetus.

Upon whom, then, does the payment fall? Here, too, they differed. A group—Mālik, al-Ḥasan ibn Ḥayy, and al-Ḥasan al-Baṣrī—held that the ghurrah is paid from the offender’s own wealth.

Others maintained that it is borne by the ʿāqilah, and among those who said so are al-Shāfiʿī, Abū Ḥanīfah, al-Thawrī, and many others. Their chief argument is that the case is one of accidental injury, and therefore the liability rests with the ʿāqilah. They also cite the report from Jābir ibn ʿAbd Allāh: “The Prophet ﷺ imposed a ghurrah for the fetus upon the ʿāqilah of the assailant, beginning with his wife and his children.” Mālik, however, likened the matter to the diyah for deliberate homicide when the blow itself was intentional.

As for who receives the ghurrah, Mālik, al-Shāfiʿī, and Abū Ḥanīfah said that it goes to the heirs of the fetus and is treated like a diyah in that it is inheritable. Rabīʿah and al-Layth, by contrast, assigned it exclusively to the mother, on the grounds that they regarded her fetus as analogous to one of her limbs.

Another issue in dispute, besides the ghurrah itself, is whether an expiatory kaffārah is required. Al-Shāfiʿī holds that it is obligatory; Abū Ḥanīfah holds that no kaffārah is due; Mālik deemed it commendable (mustahsan) but did not make it binding. Al-Shāfiʿī obligates it because, in his view, a kaffārah is required for both intentional and accidental killings. Abū Ḥanīfah, treating the case as closer to deliberate homicide—and since in his school a kaffārah is not due for deliberate killing—does not require it. As for Mālik, because the kaffārah is not obligatory for deliberate homicide in his view yet is obligatory for accidental homicide, and because this case, to him, straddles the two categories, he recommended the kaffārah but did not impose it.

Among the varieties of accidental harm over which they disagreed is the liability of a mounted rider, a driver, or a leader of an animal. The majority held that they are liable for whatever injury the animal causes. They relied on ʿUmar’s ruling against a man who galloped his horse and it trampled another person, obliging him to pay the diyah.

The Ẓāhirīs said that no one bears liability for injuries inflicted by a dumb beast, basing themselves on the established report from the Prophet ﷺ, related by Abū Hurayrah: “The injury caused by an animal is without liability (jubar), the pit is without liability, the mine is without liability, and one-fifth is due on treasure trove.”

The majority, however, construed the ḥadīth to apply only when the animal has no rider, driver, or leader, because they hold that if the animal injures someone while it has a rider, or someone leading or driving it, then the rider, driver, or leader is the actual cause of the injury, albeit unintentionally.