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The first Charitable Trusts - A Light in the Dark Ages

Image of the crusades
The First Crusade to the Holy Land

Medieval Europe was a dark place, perhaps because we had learnt that drinking beer was safer than drinking water (alcohol kills bacteria, as well as brain cells). Drinking can also make one aggressive, and it is perhaps unsurprising that it was at this time that the great and the good of England decided it would be a good idea to attack the Holy Land. Alas, at that time Islam was entering its renaissance.

In Islam, the waqf is an inalienable charitable endowment, which typically involves donating a building, plot of land or other assets for charitable purposes with no intention of reclaiming the assets.

One of the earliest waqf deeds date back to the 9th century and relate to the status of an inn. In such instances the property or the land itself would not be sold, inherited or donated. It had been given away for the poor, the relatives, the slaves, the jihad, the travellers and the guests. The role of trustee was also spelled out, with the pronouncement that “… it will not be held against him who administers it if he consumes some of its yield in an appropriate manner or feeds a friend who does not enrich himself by means of it”.

Whilst not actually in the Quran, the waqf is a feature of Islamic law and the timing and geographical locations most likely relate to the development of trust law in the UK.

Our modern trust law originated in the 12th century, from the time of the Crusades. At that time, the common law, taken from Rome, regarded property as an indivisible entity. The owner had absolute rights. However, at that time, many a nobleman and wealthy land owner decided to wage a Church approved Holy War with a view to recapturing Jerusalem from Islamic rule.

These land owners needed to appoint a trustee to watch over their lands, manage their estate and pay and receive feudal dues whilst they were gone, often for several years. Yet, on their return some of these trustees, having grown accustomed to the good life, decided to hold on to their assets. There was nothing in law to say they had to rescind their ownership. This was the common law from Rome, the most advanced society at that time and still at the height of its powers.

The returning knight had little recourse but to petition the King. The King would defer to his Lord Chancellor to hear such cases. He had the discretion to declare that the real owner in all fairness was the returning Crusader, rather than the trustee. In time it became known that the Lord Chancellor would always declare in favour of the legal owner, who would be compelled to convey the assets back to the original land owner. The Crusader was the "beneficiary" and the acquaintance the "trustee". The notion of ‘trust’ was elevated, as the Lord Chancellor would consider it "unconscionable" that the legal owner could go back on his word and deny the claims of the Crusader.

There are numerous examples of cultural appropriation across the eleventh and twelfth centuries as Europe had more exposure to Islam. With significant advances in alchemy, astronomy, mathematics, physics, medicine, music and even carpets, it is hard to imagine that their legal structures did not have an influence as well.

Indeed, the language is particularly telling, as under a waqf "property is reserved for the benefit of specific individuals, or for a general charitable purpose; the estate becomes inalienable and without regard to the law of inheritance or the rights of the heirs; and continuity is secured by the successive appointment of trustees”. A definition which was born in Islam but still holds true in modern western law today.

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