Express trusts in Israel/Palestine a pluralist trusts regime and its history

Adam Hofri-Winogradow*

*Corresponding author for this work

Research output: Chapter in Book/Report/Conference proceedingChapterpeer-review

Abstract

Introduction The law of express trusts, as currently applied in Israel/Palestine, strikes the beholder as a normative patchwork. Settlors create both business and family trusts, drawing on normative traditions and sources from Islamic law to offshore trust regimes. Some Israeli Muslims still create and administer Islamic waqfs before the Jewish state’s Shari’a courts. Other settlors rely either on Israel's idiosyncratic Trusts Act of 1979, which, while tracing much of the common law of trusts, refrains from identifying trustees’ right in the trust property, or on the foreign trust regime of their choice. Still others administer – and, more rarely, create – trusts according to traditional Jewish law and the Canon law. This varied practice has since 2006 been overlaid with a complex trusts taxation regime. The draft Civil Code of Israel promises to replace the Act of 1979 with trust provisions defining the ‘trustee’ as owner of the trust corpus. The courts, on their part, have enriched the maelstrom with an active law of constructive trusts. The late Ottoman Palestine of 1914, on the other hand, though fast developing as far as population, technology, transportation and many fields of law were concerned, knew only one form of trust: the Islamic waqf. The present chapter follows the process of normative sedimentation since, showing how different elements of the colourful Palestinian panoply of legal actors - traditional and modernizing Jews, Muslim and Christian Arabs, Ottoman and British administrators - have now received, now rejected the common law trust. This process serves as a mirror in which many of the complex social, economic, political and cultural processes which have taken place in the territory during this period are reflected, including the importation of Jewish monies into Palestine so as to realize the Zionist enterprise, the struggles of pro- and anti-Zionists in the British Mandatory Administration of Palestine, and debates among Jewish Palestinian legal scholars as to whether the law of the future Jewish state should be based on the common law, the civil law or Jewish legal traditions.

Original languageAmerican English
Title of host publicationRe-Imagining the Trust Trusts in Civil Law
PublisherCambridge University Press
Pages83-118
Number of pages36
ISBN (Electronic)9780511894879
ISBN (Print)9781107011328
DOIs
StatePublished - 1 Jan 2012

Bibliographical note

Publisher Copyright:
© Cambridge University Press 2012.

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