Comment by Avisheh Avini
The origin of the English trust, or the use, as it was known before the passage of the Statute of Uses in 1535, has been the subject of debate among some of the greatest legal minds of historical jurisprudence. From these debates, several theories emerged concerning the origin of the trust: the Roman Fideicommissum, the Germanic Salmannus, the hybrid Romano-Germanic, and the Islamic Waqf. The Roman theory holds that the fideicommissum, a device which permitted a testator to devise property to a legally incompetent beneficiary by transmitting the property to a capable legatee, was introduced into England by the ecclessiasts seeking to circumvent the governmental restrictions on land ownership. The German theory posits that the Salmannus, a third party who agreed to carry out the specific wishes of a transferor of property either inter vivos or post mortem, was introduced into England during the Norman conquests of the eleventh century. Finally, the Islamic theory on the influence of the waqf, an endowment created by a donor for use by designated beneficiaries and under the administration of a trustee, holds that the waqf was imported by the Franciscan Friars returning from the Crusades in the thirteenth century and that they adapted this device to the needs of their mendicant order. The trust, like the Fideicommissum, Salmannus, and Waqf, emerged as a result of positive-law deficiencies and restrictions concerning the ownership and devolution of property. However, although these institutions all addressed similar needs in the law, it does not necessarily follow that they shared a common ancestry. Thus, this Comment proposes that the origin of the trust is to be properly found in the historical circumstances in which it arose rather than in preceding legal institutions which are, at best, only superficially similar in structure. However, if an outside paradigm for the English use is to be located, the Islamic waqf's parallel structure and historical proximity indicate that it was the waqf which most prominently influenced the development of the use. This Comment demonstrates how the two devices are so parallel in purpose, theory, and structure that it can hardly be accidental that the waqf did not inspire the trust.
About the Author
Avisheh Avini. Associate, Healy & Baillie, New York, New York. B.A. 1989, Barnard College; M.A. 1990, Columbia University; M.I.A. 1992, School of International and Public Affairs, Columbia University; J.D. 1995, Tulane Law School.
Citation
70 Tul. L. Rev. 1139 (1996)