The majority also differed over injuries an animal causes with its leg. Mālik said, “Nothing is payable provided the owner has done nothing to the beast that would provoke it to kick.” Al-Shāfiʿī held that the rider is liable for whatever the animal strikes with its fore-leg or hind-leg; the same was stated by Ibn Shubrumah and Ibn Abī Laylā, who made no distinction between injuries caused by the leg and those caused otherwise. Abū Ḥanīfah agreed, except that he exempted a sudden kick delivered with the leg or a lash of the tail. Those who impose no liability for the animal’s leg sometimes cite the report ascribed to the Prophet ﷺ, “The leg entails no liability,” yet al-Shāfiʿī judged the ḥadīth unsound and rejected it.
The jurists’ opinions regarding a person who digs a well and someone then falls into it are fairly close. Mālik said: If he digs in a place where digging is customarily done, he is not liable; but if he transgresses by digging where it is not customary, he is liable. Al-Layth maintained: If he digs on land he owns, he is not liable; but if he digs on land he does not own, he is liable—and when he is held liable, the case is treated as accidental harm.
They likewise disagreed about a tethered animal. Some—among them al-Shāfiʿī—said that if the owner ties it in a place where he is entitled to do so, he bears no liability; otherwise he is liable. Abū Ḥanīfah made him liable in every circumstance: tethering it in a permitted spot does not absolve him, just as riding the beast does not absolve him of liability for any injury it causes, even though riding it is permissible.
They also differed about two horsemen who collide and both die. Mālik, Abū Ḥanīfah, and others ruled that each owes the full diyah of the other, payable by his ʿāqilah. Al-Shāfiʿī and ʿUthmān al-Battī ruled that each owes half his companion’s diyah, for each rider died through his own act combined with that of the other.
The scholars unanimously agree that when a physician errs—such as cutting off the glans during circumcision—the diyah becomes obligatory on him, for he is analogous to one who causes unintentional injury. There is, however, a narration from Mālik absolving him when he is a qualified practitioner. All concur that if he is unqualified he is liable, for that is a transgression. In confirmation of the consensus is the ḥadīth of ʿAmr ibn Shuʿayb, from his father, from his grandfather, in which the Messenger of Allah ﷺ said, “Whoever undertakes medical treatment, though previously unknown for medicine, is liable.”
According to the majority, the diyah for a physician’s error is borne by his ʿāqilah, while some scholars charge it to the physician’s own wealth. There is no disagreement that if he lacks recognized medical competence, the payment comes out of his personal wealth, in keeping with the outward purport of the ḥadīth of ʿAmr ibn Shuʿayb.