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In comparative legal studies, the concept of a “trust” often represents a distinct legal mechanism found primarily in common law jurisdictions. A trust enables one party to hold and manage property for the benefit of another, typically involving a division between legal ownership and beneficial entitlement. However, in jurisdictions such as Palestine—where civil obligations are shaped by Islamic jurisprudence and codified Ottoman-era law—the legal infrastructure does not mirror the features associated with common law trusts.
This article explores how Palestinian law treats entrusted property and explains why the doctrine of Amanah (entrustment) does not equate to a trust. It draws on the applicable legal sources in the West Bank, including the Majallat al-Aḥkām al-‘Adliyya (hereafter, the Majalla), as well as relevant doctrinal commentaries and historical context, to highlight the fundamental differences.
Understanding Trusts in Legal Context
In common law jurisdictions, a trust is a legal relationship whereby one party (the trustee) holds property not for their own benefit, but for the benefit of another (the beneficiary). This arrangement is characterized by the separation between legal title and beneficial ownership. The trustee bears fiduciary duties—such as loyalty, care, and impartiality—and the beneficiary holds enforceable rights to compel the trustee’s compliance with the terms of the trust.
The most common form is the express trust, which arises from a settlor’s intention to transfer property to a trustee for the benefit of a beneficiary. Express trusts require certainty of intention, subject matter, and object, and are often documented in writing. They are widely used in estate planning, charitable structures, and asset protection.
There also exist non-express forms of trusts in common law systems. A resulting trust arises by operation of law where property is transferred under circumstances suggesting the transferee was not meant to benefit. A constructive trust is imposed by courts to address wrongdoing or prevent unjust enrichment. While these forms of trust do not depend on a settlor’s intent, they still entail fiduciary responsibilities and a division between legal title and equitable benefit.
In all cases, trusts in common law systems entail fiduciary obligations, equitable remedies, and enforceable rights on the part of the beneficiary—features which are absent under Palestinian civil law.
The Legal Basis in Palestine: The Majalla
Palestinian civil law in the West Bank follows a different path. The foundational legal framework governing civil obligations is the Majalla, a 19th-century codification of Hanafi legal principles. The Majalla addresses matters such as contracts, torts, and property rights, including rules on entrusted property, or Amanah.
Articles 762 to 798 of the Majalla address situations where one party possesses property belonging to another, whether under a contract (e.g., deposit), incidentally (e.g., a leased object), or without contract (e.g., lost property). These rules establish duties of custodianship and safekeeping, but not fiduciary management or trust-based responsibility.
This framework plays a particularly important role in practical matters such as inheritance and estate distribution, where custodianship and safekeeping are often misinterpreted as conferring beneficial ownership in the absence of a legal trust regime.
The Nature of Amanah
In the Majalla, Amanah refers to the entrustment of property under circumstances that impose a duty of preservation and return, without transferring ownership. It is a passive obligation, not a fiduciary one. The recipient may not use, benefit from, or dispose of the property unless specifically authorized.
Classical commentaries, such as those in Sharḥ al-Majalla by Munir Qadi and Saleem Rustum Baz, classify Amanah into three main types:
- Entrustment by contract – such as a formal deposit (wadi‘ah);
- Entrustment arising incidentally – such as goods held by a lessee (musta’jir) or borrower (musta‘ir);
- Entrustment without contract – such as found property (luqata) or unexpected possession through no act of the possessor.
In all cases, the entrusted person is not liable unless negligence or misconduct can be proven. There is no division of title, no recognition of beneficial interests, and no enforceable rights for third parties. The concept is functional in nature and focused solely on protection of physical possession, not beneficial ownership.
Historical and Legal absence of Trusts in Palestine
From a historical and doctrinal standpoint, Palestinian civil law has never incorporated the legal institution of the trust as developed in common law systems. This absence is not incidental—it stems from the historical evolution of the legal system, which has been shaped primarily by Islamic jurisprudence, Ottoman legal codification, and later civil law adaptations.
The Majalla, enacted in the late 19th century as a civil code derived from the Hanafi school, served as the foundational legal text for personal and commercial obligations in the region. It did not codify the concept of a trust or introduce any framework allowing for a division between legal and beneficial ownership, nor did it create enforceable fiduciary obligations toward third-party beneficiaries.
Following the collapse of the Ottoman Empire, Palestinian law underwent several transitions—from the British Mandate to Jordanian and Egyptian rule, and later to the Palestinian Authority. At no point was a formal trust law regime introduced in the West Bank. Even during British administration—despite selective adoption of English legal principles—trusts were not formally received into local law.
To date, there is no statute in the West Bank establishing or recognizing trusts under Palestinian law, nor is there any judicial doctrine equivalent to fiduciary equity or equitable ownership. While administrative laws may refer to entrusted positions, these are not “trusts” in the technical legal sense.
When disputes arise over property held by one person on behalf of another, the legal framework varies depending on the subject matter. In cases involving real estate and property development, the governing laws include the applicable land registration and ownership laws in Palestine. For cases involving capital market shareholding and securities, such disputes fall under the jurisdiction and regulatory framework of the Palestinian Capital Market Authority (PCMA), whose instructions and disclosure regulations govern the recording, transfer, and ownership of shares. While the Majalla remains a source of general civil obligations, it does not govern these sectors specifically. Thus, the resolution of such disputes depends on the statutory and regulatory instruments in force, not on trust-based doctrines.
Conclusion
Palestinian civil law, as governed by the Majalla and interpreted by classical scholars and legislative practice, does not recognize a legal institution equivalent to the common law trust. The doctrine of Amanah serves a limited custodial role and lacks the fiduciary obligations, dual ownership structure, and enforceable third-party rights that define a trust.
Legal practitioners, scholars, and policymakers should exercise caution when drawing parallels between entrustment in Palestine and trusts in common law jurisdictions. Superficial analogies risk introducing confusion into contractual interpretation, legal drafting, and cross-border enforcement. Property held by one party for another must be analyzed according to the structure and vocabulary of Palestinian civil law, not through imported or borrowed legal frameworks.
This Article was researched and written on Apr 26th, 2025 by Mariam Shqair.
