dirhams—and he wishes to forgo the cultivation to which he is entitled and sell the water to someone else to irrigate the latter’s land, then this water may be sold. This differs from water that flows through his property without payment, as when someone brings uncultivated land into use and it contains a flowing spring.

Scholars hold two views on whether water of this kind may be sold, both transmitted from Ahmad. According to the first, it may be sold; this is the position of al-Shāfiʿī and Mālik. According to the second, it may not be sold; this is the position of Abū Hanīfa and the well-known position transmitted from Ahmad. As for water and pasture found on land open to common use, scholars agree that neither may be sold.

He—may Allah have mercy on him—was asked:

A man owns a flowing spring. May he sell one “finger” of its water, or a similar share, even though the water is not visible but emerges little by little?

He replied:

Someone who owns water issuing from the ground—for example, someone who owns a well dug on his property (the term “well” includes both those fitted with a waterwheel and those without one), or who owns a spring on land belonging to him—may sell the well