Hostname: page-component-586b7cd67f-rcrh6 Total loading time: 0 Render date: 2024-11-23T21:27:05.218Z Has data issue: false hasContentIssue false
  • English
  • Français

Zionist Settlers and the English Private Trust in Mandate Palestine

Published online by Cambridge University Press:  06 September 2012

Adam S. Hofri-Winogradow
Get access Rights & Permissions [Opens in a new window]

Extract

The basic colonial encounter involved a colonizing power and colonized locals. Some colonial situations were more complex, involving a third element: settlers of nonlocal stock originating in an ethnos, or nation, different than that with which the colonizer was identified. Two prominent examples from the annals of the British Empire are the French inhabitants of Nouvelle France after France ceded it to the British in 1763, and the Dutch inhabitants of the Cape Colony after the British conquest of 1806. The British typically permitted such settler populations to retain at least parts of the laws to which they were accustomed, which laws were often based on the laws of the settlers' jurisdiction of origin. As regards settler use of English law, the English sometimes provided for the application of parts of it to non-British settlers, while blocking such settlers' attempts to use other parts. The part of English law most commonly applied to non-British colonial subjects, both settlers and natives, was commercial law, in order to facilitate commerce between different parts of the Empire. The parts least commonly applied to such inhabitants were family law, land law, and the law of inheritance.

Type
Articles
Information
Law and History Review , Volume 30 , Issue 3 , August 2012 , pp. 813 - 864
Copyright
Copyright © the American Society for Legal History, Inc. 2012

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

1. For colonial powers' conservative bias, keeping much of preconquest law in place as regards both the native population and settlers unassociated with the conquering power, see Benton, Lauren, Law and Colonial Cultures: Legal Regimes in World History, 1400–1900 (Cambridge: Cambridge University Press, 2002)Google Scholar, 2; for the British colonial preference for installing English commercial law in the colonies see Elias, Taslim O., British Colonial Law: A Comparative Study of the Interactions Between English and Local Laws in British Dependencies (London: Stevens & Sons, 1962)Google Scholar, 128; for the British colonial preference for keeping the preconquest family law, land law, and law of inheritance in place, see ibid., 50–51, 143, 199; and Merry, Sally Engle, “From Law and Colonialism to Law and Globalization,” Law & Social Inquiry 28 (2003): 572CrossRefGoogle Scholar. For the “continuum with respect to the likelihood of transplantation,” starting with commercial law as likeliest to be transplanted and ending with family law as the least likely, see Ron Harris and Crystal, Michael, “Some Reflections on the Transplantation of British Company Law in Post-Ottoman Palestine,” Theoretical Inquiries in Law 10 (2009): 561, 562–64 and sources citedGoogle Scholar.

2. For the reception of the English trust in Lower Canada (the later province of Quebec), see Waters, Donovan, The Law of Trusts in Canada, 3rd ed. (Toronto: Thomson, 2005)Google Scholar, 1339; for its partial reception in the Cape Colony, see Honoré, Tony and Cameron, Edwin, Honoré's South African Law of Trusts, 4th ed. (Cape Town: JUTALaw, 1992) 15–16Google Scholar; Honoré, Tony, “Trust,” in Southern Cross: Civil Law and Common Law in South Africa, ed. Zimmermann, Reinhard and Visser, Daniel (Oxford: Oxford University Press, 1996) 849, 851–63Google Scholar.

3. See discussion at notes 69–76 below.

4. For the history of Jewish Zionist immigration to Palestine during the Mandate era see Lissak, Moshe, Shapira, Anita and Cohen, Gavriel, eds, The History of the Jewish Community in Eretz-Israel since 1882: The British Mandate Period: Part One (Jerusalem: Mossad Bialik, 1993)Google Scholar.

5. Shamir, Ronen, The Colonies of Law: Colonialism, Zionism and Law in Early Mandate Palestine (Cambridge: Cambridge University Press, 2000)Google Scholar, 4.

6. Mandate for Palestine and Transjordan, s. 6. The text of the Mandate is printed in Bentwich, Norman, The Mandates System (London: Longmans, 1930) 137–45Google Scholar.

7. Ibid., s. 8.

8. The Palestine Order in Council, 1922, ss. 47, 51–57, 64–65 (hereafter: Palestine Order in Council). The text is printed in Bentwich, The Mandates System, 146–65.

9. Likhovski, Assaf, Law and Identity in Mandate Palestine (Chapel Hill: University of North Carolina Press, 2006), 55–58Google Scholar.

10. The process of partial Anglicization and the development of Mandate-era Palestinian law more generally have been the subject of several essays and monographs. Three highlights are Malchi, Eliezer, The History of Law in Eretz-Israel, 2nd ed., (Tel-Aviv: Dinim, 1953)Google Scholar; Shamir, Colonies of Law; and Likhovski, Law and Identity.

11. Shaham, Ron, “Christian and Jewish “Waqf” in Palestine during the Late Ottoman Period,” Bulletin of the School of Oriental and African Studies 54 (1991): 460–72CrossRefGoogle Scholar.

12. The Palestine Order-in-Council of 1922 gave non-Muslim communities' religious community courts exclusive jurisdiction over the “constitution and internal administration” of religious trusts constituted before those courts according to the religious legal traditions they applied: §53(3) to the Palestine Order-in-Council concerning Rabbinical Courts, §54(3) to the Palestine Order-in-Council concerning Christian Ecclesiastical Courts. The Shari'a courts were, similarly, granted exclusive jurisdiction in cases regarding the constitution or internal administration of a waqf constituted for the benefit of Muslims before a Muslim Religious Court: ibid., §52.

13. For the development of Palestinian waqfs during the Mandate era, see Reiter, Yitzhak, Islamic Endowments in Jerusalem under British Mandate (London: Frank Cass, 1996)Google Scholar.

14. The British government, in a declaration made on November 2, 1917, and again in the text of the Mandate for Palestine and Transjordan, declared its favorable view “of the establishment in Palestine of a national home for the Jewish people”: see Bentwich, The Mandates System, 137 (preamble).

15. Frederic William Maitland, revised by Brunyate, John, “Uses and Trusts,” in Equity: A Course of Lectures (Cambridge: Cambridge University Press, 1936)Google Scholar.

16. See text to notes 77–79 below.

17. For the workings of Mandate-era Palestinian case law, and their impact on the reception of English legal ideas in the law of Palestine, see Likhovski, Law and Identity, 61–83.

18. For Eliash's professional status see, for example, Brun, Nathan, Judges and Lawyers in Eretz Israel, between Constantinople and Jerusalem, 1900–1930 (Jerusalem: Magnes, 2008), 360, n. 51Google Scholar. For biographical information, see Strassman, Gabriel, ‘Ote ha-Glima: Toldot Arikhat ha-Din be-Eretz Yisra'el [Wearing the Robes: A History of the Legal Profession to 1962] (Tel Aviv: Israel Bar Press, 1984), 26–31, 303–4Google Scholar. For the Eliash papers see Central Zionist Archives (CZA), Mordechai Eliash Private Archive File List, available at http://www.zionistarchives.org.il/ZA/showpad.aspx?PageId=25&ParamId=A417Eliash,Mordecai&Flag=4, accessed January 18, 2011. The Eliash papers make class A417 at the CZA.

19. The trusts were: first to Alexander Eliash, to secure the collection of debts Mordechai owed to him; next the income to be paid to Mordechai for 20 years (his then-expected lifespan); then the income to be paid, in equal shares, to Mordechai's two children for life (his widow was to have a quarter of the income for her lifetime); and, finally, a share of capital equivalent to the share of income allocated to each of the two children to be distributed, on the death of each child, to his or her issue, in shares as that child should in his or her will direct, or if no direction, equally. Some drafting imperfections, such as the repeated use of “settler” for “settlor,” may be evidence of the draftsman's inexperience with such trusts. The draft trust deed is in Israel State Archives (ISA), case file for HCJ 77/31 Eliash v. The Director of Land (hereafter: Eliash case file). On Alexander Eliash see Rephael, Yitzhak, “Alexander Eliash,” in Encyclopedia of Religious Zionism, vol. 4 (Jerusalem: Rav Kook Institute, 1972), 185–86Google Scholar.

20. Letter of February 23, 1931, in Eliash case file.

21. Letter of July 10, 1931, in Eliash case file.

22. Goadby, Frederic M and Doukhan, Moses J, The Land Law of Palestine (Tel-Aviv: Shoshany's Printing Co., 1935), 94Google Scholar. The “general provisions” referred to were Art. 121 of the Land Code of 7 Ramadan, 1274 A.H., and Art. 8 of the Provisional Law on Holding Real Estate of 5 Jamada Awal, 1331 A.H. Both provide that miri land may not be dedicated as waqf. An English translation of the Ottoman Land Code is available: The Ottoman Land Code. Translated from the Turkish by Frederick Ongley (London: Clowes and Sons, 1892)Google Scholar. I thank one of the reviewers for the Law and History Review for referring me to Doukhan's book. For a discussion of the Ottoman miri regime see Bunton, Martin, Colonial Land and Policies in Palestine, 1917–1936 (Oxford: Oxford University Press, 2007), 36–37CrossRefGoogle Scholar.

23. I have found no trace of an earlier such application; later attempts would have been stymied by the Eliash precedent.

24. There is a rich literature on the use of waqfs in Palestine. The key work for the Mandate era is Reiter, Islamic Endowments.

25. An Ordinance to Regulate Charitable Trusts Established Otherwise than in Conformity with Religious Law, 1924, 1 Legislation Of Palestine, 1918–1925 (Norman Bentwich, compiler, 1926), 120.

26. The modeling of the Palestinian Ordinance on the Ceylonese one is mentioned in Norman Bentwich, “Memorandum on the Amendments of the Charitable Trusts Ordinance proposed by the Chief Justice,” United Kingdom National Archives (hereafter: UKNA), CO 733/75, 188. Bunton, Colonial Land, 15, mentioned the Ceylonese origins of the Palestinian ordinance, referring to page 185 of the same collection of minute sheets that contains Bentwich's memorandum. Goadby's draftsmanship is established by Robert H. Drayton, assistant attorney general, “Memorandum Regarding the Amendments Proposed by the Chief Justice,” UKNA, CO 733/73 (September 9, 1924), 1.

27. Letter of March 27, 1925, UKNA, CO 733/91/15719, 152, pp. 1–2, para. 3.

28. The Companies Ordinance, No. 18 of 1929, Official Gazette, May 15, 1929, 378, gives, in subsections (o) and (w) of Schedule II, all companies the power to act as trustees unless that power is specifically excluded in a company's memorandum of association. Section 98(1) (b) permits “the provision by a Company… of money for the purchase by trustees of fully-paid shares in the Company to be held by or for the benefit of employees of the Company.” Sections 124 and 128 mention trustees in the debenture context, and section 180 mentions them in the winding-up context. The term “trust” is further mentioned in sections 29(2) (“No notice of any trust express, implied or constructive shall be entered on the register or receivable by the Registrar in respect of any Company”), 77, voiding provisions exempting officers of companies from, or indemnifying them against, liability in respect of, e.g., breaches of trust in relation to the company, 78(1) and (3), giving the Court power to exempt directors and trustees from liability for, e.g., breaches of trust, and 79(1) and (3), which create two kinds of statutory constructive trusts. For the history of the Ordinance see Harris and Crystal, “Reflections.”

29. Partnership Ordinance, No. 19 of 1930, Official Gazette, Gazette Extraordinary, August 8, 1930, 646, ss. 20 and 29(2) respectively. For discussion of section 29(2) see Tzeltner, Ze'ev, “The Private Trust in Israel,” Ha'Praklit 15 (1960): 225–27Google Scholar.

30. The term ‘trust' was further mentioned in legislation referring to public-owned land. The parent provision in this context was §12(1) of the Palestine Order-in-Council, which provided that “[a]ll rights in or in relation to any public lands shall vest in and may be exercised by the High Commissioner for the time being in trust for the Government of Palestine.” Another prominent Mandate-era use of the term “trust” was in C.A. Hooper's much-used translation of the Mejelle, the Ottoman civil code: 1 Charles Hooper, Arthur, The Civil Law of Palestine and Trans-Jordan (London: Azriel Press, 1938)Google Scholar. Hooper translated the title to Book VI “Trusts and Trusteeship” (ibid., 185), despite its subject matter being, more generally, possession of another's effects, as of a found object by the person finding it; the Ottoman Turkish title to Book VI is “émanet,” Young's French translation being “Des choses confiées à autrui”: Young, George, Corps de Droit Ottoman, vol. 6 (Oxford: Clarendon Press, 1906), 278Google Scholar. The term was used in other Mandate-era English translations of Ottoman legislation applicable in Mandate Palestine: see article 236 of the Ottoman Penal Code of 1859, in both Walpole, Charles George, trans. (from the French), The Ottoman Penal Code, 28 Zilhijeh 1274 (London: Clowes and Sons, 1888)Google Scholar; and Bucknill, John Strachey and Apisoghom, Haig, trans. (from the Turkish), The Imperial Ottoman Penal Code (London: Humphrey Milford, 1913)Google Scholar. Both translators used the term “trust.”

31. The post-1931 case of the elaborate Income Tax Ordinance of 1941 seems to have been similar: see discussion at text to notes 61–62.

32. “[T]he Government of Palestine files on the drafting of that Ordinance have been lost… [t]he first in a series of four files created at the Colonial Office in London is also lost. The second covers… a stage at which the third draft of the ordinance was already distributed and a fourth was being drafted”: Harris and Crystal, “Reflections,” 571.

33. Cmd. 2657. For the drafting of the Palestinian Ordinance and its sources see Harris and Crystal, “Reflections,” 571–73.

34. Section 29 of the Palestine Ordinance is derived from section 27 of the Companies (Consolidation) Act, 1908, 8 Edw 7, c 69; section 78(1) of the former is derived from section 279 of the latter; section 124(2) of the former is derived from section 102(2) of the latter; and section 180 from section 164. S. 98(1) (b) of the Palestine Ordinance originated in paragraph 31 of the Report; section 77 originated in paragraph 47, and section 128 originated in paragraph 66.

35. He professed himself “certainly inclined to the opinion that it is desirable that the English and the Palestinian Law should, so far as possible, be formulated in the same phrases:” his letter to Lloyd of the Colonial Office, Middle East Department, October 20, 1927, in UKNA, CO 733/133. He took for granted that the law of the metropole and the Mandated territory should be substantially identical. As Nathan sent his fifth and final draft to Sir John Shuckburgh of the Colonial Office, he wrote, “[Y]ou will observe that I have revised [the draft Ordinance] so as to bring it as far as possible into accord with the English law as it now stands amended by the recent Companies Act 1928:” letter dated November 28, 1928, entitled “Your Ref. 57037/28,” UKNA, CO 733/145.

36. The correspondence is in UKNA, CO 733/145.

37. Norman Bentwich, “Explanatory Note on the Partnership Ordinance,” ISA, file M – 283/26.

38. Bentwich's comments are in his “Note on the Draft Partnership Ordinance,” in UKNA, CO 733/145/18, at 23–24; the first refers to section 19 of Nathan's draft (the later section 20), and the second to section 28(2) (the later section 29[2]). The comments in reply are in a document in the same file entitled “Memorandum by the Legal Advisor to the Colonial Office upon Mr. Bentwich's Note on the Draft Partnership Ordinance,” 6–7.

39. Samuel, letter, note 27 above.

40. The Palestine Order-in-Council, 1922, art. 46. For a careful study of this provision and its construction by Mandate era courts, see Likhovski, Law and Identity, 61–83; and id., “In Our Image: Colonial Discourse and the Anglicization of the Law of Mandatory Palestine” Israel Law Review 29 (1995): 291Google Scholar.

41. Both decisions are unreported. The district court decision is quoted in the report of the Supreme Court decision that reversed it: CA 35/31 Israel Lieber v. Jacob and Sheftel Mirenberg 5 COJ 1811 (1931). The following description is based on materials in the case files (now in the ISA) for that case and CA 131/30 Israel Lieber v. Jacob and Sheftel Mirenberg. The parties having entered into partnership “for the manufacture of chocolate,” the partnership agreement setting up a “Board of Managers” of which Lieber and Sheftel Mirenberg were members, Lieber acted, in managing the firm, without his partners' consent, having physically expelled them from the factory. They filed suit, asking that the Tel-Aviv District Court either order Lieber to manage the firm subject to Sheftel Mirenberg's consent, or “restrain [Lieber] from the management of the undertaking and … appoint a receiver in order to manage [the factory].” The Court held that “[i]n view of the security [Lieber gave] and of the nature of the business we are of opinion that to appoint a receiver would not be a proper remedy… [n]either do we think it proper to restrain [Lieber] from the management,” and chose instead to constitute Lieber “trustee for all parties.” The Supreme Court reversed, holding that “[w]e know of no power either under English or Ottoman Law whereby such an appointment can be made, nor indeed, do we understand the effect of such an appointment” (all quotes from the Supreme Court decision in CA 35/31, p. 1812). The Supreme Court decision referred to in the text is CA 50/31 Ibrahim Eff. Kamal–Syndic in the Bankruptcy of Abdel Mou'ti Ghneim v. Adib Eff. Daudi, unreported, delivered October 14, 1931. As this decision was described in CA 92/29 (Jaffa) Arieh Gurevitz et al. v. The Anglo-Palestine Company Co. Ltd., 1 COJ 228, 230–231[1932]: “[i]n that case… Respondent… received and collected the proceeds of bills drawn in his favour by one Taher el Masri… Appellant, who was the Syndic in the bankruptcy of Abdel Mu'ti Chnesim, alleged that the Respondent [was] acting under instructions from Taher, who owed money to the bankrupt [and] was applying the proceeds of the bills for the benefit of the bankrupt, in fraud of his creditors… It was held in so far as it might be proved that the Respondent held such proceeds in trust, he did so as trustee not for the bankrupt but for Taher…”. The final sentence, from “in so far,” appears verbatim in the original decision, which I have located in the case file, available in the ISA. The Courts used the term “trust” in at least two more cases, but not in ways clearly implying their reception and use of the English concept of a private trust. In CA 42/29 Olaf Erickson Lind v. Vester & Co., the American Colony Stores 5 COJ 1808 [1930], the parties having agreed that defendants held property on trust for appellants, both the District and Supreme Courts held the trust not to be charitable, but did not specify what type of trust it was. Trusteeship was also mentioned in LJa 191/21 Arthur Henry Finn v. The Government of Palestine 5 COJ 1802 (1929) but in the context of the law of deeds of arrangement rather than in that of private trusts.

42. For a general description of the reception process, see Malchi, History of Law, 77–180.

43. Yosef Eliash's letter dated 16 Tammuz 5691 (according to the Hebrew calendar) and Mordechai's response dated 19.7.1931 are in CZA, A 417, file 749. In his response, Mordechai pretended that he was pursuing the matter for a client rather than in his own behalf. The rule that miri land could not be bequeathed appeared both in the Provisional Law on Holding Real Estate, Art. 8, referred to in note 22 above, and in the Succession Ordinance, No. 4 of 1923, Official Gazette, no. 88, April 1, 1923, section 19, which lent renewed force to the Provisional Law Regulating the Right to Dispose of Immovable Property of 1329/1913. Article 8 of the latter provided (in Richard Clifford Tute's translation: Ottoman Land Laws [Jerusalem: Greek Convent Press, 1927])Google Scholar, that “Mirie land owned by virtue of a formal title deed cannot be constituted waqf or left by legacy unless the State confers the absolute ownership by Imperial mulknama according to Sharia law.” The final section of the Charitable Trusts Ordinance emphasized that miri land could not be devised for charitable purposes: An Ordinance to Regulate Charitable Trusts, note 25 above, section 43.

44. The application is in the Eliash case file. Eliash referred to section 29(2), for which see note 28 above, as a particularly striking example.

45. The rule is in the Eliash case file.

46. My analysis of the oral arguments is based on the handwritten notes of Chief Justice McDonnell and Justice Khayat, in English and Arabic respectively; they are found in the Eliash case file. Doukhan's note in his property law textbook of 1935 (note 22 above), 94 fn, that the question of whether charitable trusts could be dedicated out of miri land was not argued in this case, is therefore not quite accurate.

47. HCJ 77/31 Eliash v. The Director of Land 1 PLR 735 (1932) (hereafter: Eliash case report).

48. Eliash case report, 736.

49. Reiter, Islamic Endowments, 13.

50. Reiter, ibid., lists in his Table 3.1, on pp. 50–51, all 61 waqfs established by Muslims in Jerusalem during the Mandate period, for which data were found in the records (sijill) of the Jerusalem Shari'a Court. Fifty-two of them were “family” waqfs, dedicated to benefitting the founder's relatives.

51. Eliash case report, 736–37; See also his penciled draft judgment, in Arabic, in the Eliash case file.

52. ISA policy currently makes a general search of unreported Mandate era decisions very difficult.

53. The three were CC 125/43 Malatzky v. Bawly, Selected Cases of the District Courts (SCDC) 265 (1945); LC 20/45 Albert Missri v. Itzhaq Raphael Eliashar, SCDC 180, 182 (1946); and CA 16–24/45 Bracha Ben-Ya'acov & ors. v. Joseph Forer 2 ALR 628 (1945) (reversed, on points irrelevant to present concerns, in Privy Council Appeals 30–32/47 Bracha Ben-Ya'acov & ors. v. Joseph Forer 2 Psakim 498 [1948]). None of the three was concerned with a family trust. The unreported decision was Estate Case 472/46 (Tel-Aviv) In Re Estate of Ya'acov Blum (unreported). Robert Eisenman cited Eliash and Ben-Ya'acov in his Islamic Law in Palestine and Israel: a History of the Survival of Tanzimat and Sharia in the British Mandate and the Jewish State (Leiden: E. J. Brill, 1978), 95–96Google Scholar, n. 41 and text, attributing the courts' rejection of the English private trust to their “[c]onscious[ness] of the great evil family waqf had become in the Middle East and the endless controversy surrounding them.” There is no trace of such consciousness, or indeed any mention of the family (dhurry or ahli) waqf, in the decisions discussed; but the judges concerned may have been conscious of the issue nevertheless.

54. Goadby and Doukhan, Land Law, 90 (footnote and text thereto). It was certainly Doukhan's own view—as distinct from his view of the holding in Eliash—that “[a] trust of Miri is, therefore, merely void:” ibid, 94. The phrase appears in a discussion of charitable trusts, but Doukhan's view of private trusts of miri seems, from context, to have been similar.

55. CA 117/40 Agudath Batey Yetomim Veyetomoth vs. The A-G et al. 9 PLR 291, 297 (1942). The Court (Gordon–Smith C.J.) noted that according to both legislation and case law, miri land could not be dedicated for charitable purposes, either by will or inter vivos.

56. ISA, file M–269/10.

57. ISA, file M–269/10.

58. See text to note 54 above.

59. ISA, file M–269/10.

60. Bankruptcy Ordinance, No. 3 of 1936, Palestine Gazette, Gazette Extraordinary, No. 566, January 24, 1936, Supplement No. 1, section 37(1). The origin of this section—the fact that it “follows s. 38 of the English Act”—is made clear in a “Note on the Bankruptcy Bill, 1935,” in the UKNA, CO 733/284, p. 4. The “English Act” referred to is identified as the Bankruptcy Act, 1914 in a letter by Hall, Officer Administering the Government, from October 12, 1935, in the same file. The English section 38 is identical in relevant detail to the Palestinian section 37.

61. Income Tax Ordinance, No. 23 of 1941, Palestine Gazette, No. 1126, August 22, 1941, sections 21 (married woman's trustee), 27 (trustee for an incapacitated person), 28(1) (trustee for a “person not resident in Palestine”), 29 (refers again to the two latter types of trustee), 34 (two or more joint trustees of one trust), and 22(1) (defines “disposition”). Gabriel Eichelgrün, a noted Palestine “tax consultant” of the 1940s, noted in his Palestine Income Tax Guide (Haifa: Paltax, 1945)Google Scholar that the definition of “disposition” in section 22(1) “is one of the standard-phrases of the Palestine Legislator “swallowed virtually holus bolus” (HC 77/31, Eliash v. Director of Lands) from English statutes (compare 1920 Finance Act, sec. 20[5])” (p. 143). The best study of married women's separate property under English law remains Staves, Susan, Married Women's Separate Property in England 1660–1833 (Cambridge, MA: Harvard University Press, 1990)CrossRefGoogle Scholar; see also Morris, Robert John, “Men, Women, and Property: the Reform of the Married Women's Property Act 1870,” in Landowners, Capitalists, and Entrepreneurs: Essays for Sir John Habakkuk, ed. Michael, FrancisThompson, Longstreth (Oxford: Oxford University Press, 1994), 171–91Google Scholar.

62. Sections 21, 27, 28(1), and 29 of the Palestine Ordinance are identical to sections 20, 26, 27(1), and 28 of the Model Income Tax Ordinance, for which see Report of the Inter-Departmental Committee on Income Tax in the Colonies not Possessing Responsible Government, Cmd. 1788 (December 1922), 19 ff. Sections 22(1) and 34 of the Palestine Ordinance are identical to sections 23 and 41, respectively, of the Kenya Income Tax Ordinance, No. II of 1940, and were taken therefrom: “Income Tax Ordinance, 1941. Comparative Table,” in UKNA, CO 733/444, Part II. For the origins and Mandate-era history of the Palestine Income Tax Ordinance see Assaf Likhovski, “Is Tax Law Culturally Specific? Lessons from the History of Income Tax Law in Mandate Palestine,” Theoretical Inquiries in Law 11 (2010): 738, 747, 748, 751.

63. Civil Wrongs Ordinance, No. 36 of 1944, Palestine Gazette, No. 1380, December 28, 1944, Supplement No. 1, section 14(6). That this clause, numbered 15(6) in the bill version of the Ordinance, published in 1942, was based on section 1(6) of the English Law Reform (Miscellaneous Provisions) Act of 1934, 24 & 25 Geo. 5, c. 41, is noted in a “Memorandum on Draft Civil Wrongs Ordinance,” ISA, file M–279/29. That most of the Ordinance was based on the Cyprus Civil Wrongs Law of 1932 is noted in “Civil Wrongs Ordinance, 1942. Objects and Reasons,” dated December 20, 1941, signed by W.J. FitzGerald, Attorney General, in the ISA, same file.

64. The clause in question is section 29 of the Land (Settlement of Title) Ordinance, 1928, Official Gazette, June 1, 1928, 201–75, as amended by the Land (Settlement of Title) (Amendment) Ordinance, No. 48 of 1939, published in Supplement No. 1 to the Palestine Gazette, November 23, 1939. Similarly, section 29A, inserted in the amending Ordinance, provided that land used for, or assigned for, public purposes, shall be similarly registered “in the name of the High Commissioner in trust for the government of Palestine.” For Drayton's explanation, see “Memorandum by the Legal Draftsman, R.H. Drayton, on the first drafts of the [1933 versions of] the Land (Partition) Ordinance, Land (Settlement of Title) Ordinance and Land (Registration of Title) Ordinance, dated 29 September, 1933,” para. 23, in the ISA, file M-711/15. For Drayton's appointment in October 1931, see Report by His Majesty's Government … to the Council of the League of Nations on the Administration of Palestine and Trans-Jordan for the year 1931, available at http://domino.un.org/UNISPAL.NSF/a47250072a3dd7950525672400783bde/c2567d9c6f6ce5d8052565d9006efc72, accessed January 18, 2011.

65. CA 93/41 Hausdorf v. Metzger 1 SCJ 260, 261 (1941).

66. Income Tax Appeal 8/42 Ideal Motion Pictures vs. The Assessing Office of Income Tax, Tel-Aviv 9 PLR 481, 487 (1942).

67. CC 673/46 In Re Esther Baum, of Siberia, Russia, Absentee vs. Rachel Avivi et al., 2 District Court Decisions 418 (1950). The decision in this case was given after the establishment of the state of Israel, which fact had no impact on the jurisdiction's law of private trusts: section 11 of the Law and Government Ordinance, 2 Official Gazette, May 19, 1948, Appendix A, p. 1, issued by the provisional government of Israel 4 days after the state was established, provided that the law of Mandate Palestine, as it stood on the termination of the Mandate, was to continue in force, subject to express changes introduced by the new regime. No changes regarding private trusts were introduced by 1950.

68. Biancalana, Joseph, “Medieval Uses,” in Itinera Fiduciae: Trust and Treuhand in Comparative Perspective, ed. Helmholz, Richard Henry and Zimmermann, Reinhard (Berlin: Duncker & Humblot, 1998) 111Google Scholar.

69. I thank Mitra Sharafi for her advice on this point.

70. For an exhaustive treatment of the law of benami see the Law Commission of India, 57th Report, Benami Transactions (1973); and 130th Report, Benami Transactions—a Continuum (1988). Whereas the Indian courts of the Raj enforced benami transactions, noting their similarity to English resulting or bare trusts, which were similarly enforced in India, the Indian legislator, both under the Raj and since India's independence, repeatedly acted to repress, first, fraudulent benami transactions, and, eventually, any such transaction: the Benami Transactions (Prohibition) Act, No. 45 of 1988, made entering into a benami transaction an offence punishable with imprisonment of up to three years. Interestingly, some courts have held the benamidar—the ostensible owner—not to have legal title, and thus rejected the English trust analogy: see cases quoted in Law Commission of India, 57th Report, 10–11.

71. For India, see Kozlowski, Gregory C., Muslim Endowments and Society in British India (Cambridge: Cambridge University Press, 1985)CrossRefGoogle Scholar; for Ceylon, see Cooray, Anton, “Oriental and Occidental Laws in Harmonious Co-existence: The Case of Trusts in Sri Lanka,” Electronic Journal of Comparative Law 12 (2008)Google Scholar: http://www.ejcl.org/121/art121-5.pdf, 15.

72. For which see Sen, Asoke Chandra, B. K. Mukherjea's Hindu Law Of Religious and Charitable Trusts, 5th ed., (Calcutta: Eastern Law House Private Ltd., 2003)Google Scholar. For their use in Ceylon see Cooray, “Oriental and Occidental Laws,” 13.

73. Agnew, William F., The Law of Trusts in British India, 2nd ed., (Calcutta: Thacker, Spink & Co., 1920) 14–29Google Scholar; Gandhi, Bhanuprasad Manilal, Equity, Trusts and Specific Relief (Lucknow: Eastern Book Company, 1983)Google Scholar, 33, 236–240; and see cases such as Umes Chunder Sircar v. Mussumat Zahor Fatima 17 L.R., I.A. 201 (1890); Moosabhai Mohamed Sajan v. Jaccobhai Mohamed Sajan 29 I.L.R. 267 (Bom.) (1904); and Mumtaz–Un-Nissa v. Tufail Ahmed 28 I.L.R. 264 (1905). The Indian law of (nonreligious, English-type, private) trusts was eventually codified in the Indian Trusts Act, Act II of 1882. For Ceylon, see discussion in James, LeonardCooray, Mark, The Reception in Ceylon of the English Trust (Colombo: Lake House Printers and Publishers, 1971), 3–9Google Scholar, 21; the Ceylonese law of trusts was eventually codified in the Trusts Ordinance of 1917, adding significantly to the Indian model. For Zanzibar, see Case 28/30 The Public Trustee v. Her Highness, the Sultana 4 Zanzibar LR 14 (1930); and see discussion in Elias, British Colonial Law, 117. Interestingly, an obligational understanding of the trust relationship reminiscent of that of the Indian and Ceylonese codes has recently come into vogue among scholars of the common law: Smith, Lionel D., “Trust and Patrimony,” Revue Générale de Droit 38 (2008): 25–29CrossRefGoogle Scholar and passim; and Ben McFarlane and Robert Stevens, “The Nature of Equitable Property,” Journal of Equity 4 (2010): 1.

74. See sources in note 2 above.

75. For the non-English trust forms available in British-governed Quebec, see Waters, Law of Trusts, 1349–1352. For South Africa, see Fischer, Frederik W. D., “Trust, Fiducia, Bewind (administration), Stichting (foundation),” Tydskrif vir Heedendaagse Romeins-Hollandse Reg 20 (1957): 25Google Scholar.

76. The general codification of trust law, which came relatively early (Act relating to Trusts, S.Q. 1879, c. 29) in Quebec and late (Trust Property Control Act, Act 57 of 1988) in South Africa, was preceded, in both jurisdictions, by a great number of special Acts making use of the trust for particular purposes. A key context of this early legislative activity in the private trusts field was the use of trustees for holding assets securing loans to companies; see the Cape Ordinance no. 13 of 1846, and, in Quebec, hundreds of private Acts enacted from the mid-nineteenth century until the eventual enactment of a general Act on the subject in 1914. See, for South Africa, Honoré, “Trust,” note 2 above, 851–859; for Quebec, John B. Claxton, Studies on the Quebec Law of Trust (Toronto: Thomson, 2005) 10–12.

77. The Public Trustee v. Her Highness, the Sultana, note 73 above. Despite the trust being a non-personal-law subject in colonial India, Muslims challenged other Muslims' use of the English trust as void because inconsistent with Mohammedan law. It is, thus, not surprising that the colonial judges hearing those cases tended to be permissive in their interpretation of Mohammedan law on this point; see the cases cited in n 73. I thank Mitra Sharafi for reminding me that in discussing the application of Muslim law in Anglo-Colonial India, terms such as “Anglo-Muhammadan Law,” rather than Shari'a, should be used.

78. That might have been the right question to ask: the Palestine Order in Council, while giving the various religious community courts of Palestine “exclusive jurisdiction” over the “constitution or internal administration” of religious endowments constituted before those courts according to the religious law they apply (arts. 52, 53(3), 54(3)), was silent regarding the allocation of jurisdiction over questions concerning English private trusts, and the law to be applied in such cases. A family trust such as Eliash attempted to create could be seen as a matter of “successions, wills and legacies,” which under article 51 were seen as matters of “personal status,” but were not (per article 53(1)) under the exclusive jurisdiction of the Rabbinical Courts. According to article 47, the civil courts were to exercise their jurisdiction over such matters “in conformity with any law, Ordinances or regulations that may hereafter be applied or enacted and subject thereto according to the personal law applicable.” Whether Eliash could, under Jewish law, create an English family trust could therefore be seen as the right question to ask.

79. Eliash case report, 735. For McDonnell's general approach see Likhovski, Law and Identity, 66, and his “In Our Image,” note 40 above, 320–21; Brun, Nathan, “Palestine, Duel at the Summit: High Commissioner Wauchope and Chief Justice McDonnell's Quarrel over the “Jaffa Demolition Case” – 1936,” Bar-Ilan Law Studies 25 (2009): 285, 288, 292–94Google Scholar.

80. For the Mandate government's “land settlement” efforts, see Sandberg, Haim, Land Title Settlement in Eretz-Israel and the State of Israel (Jerusalem, Sacher Institute, 2000) 167–202Google Scholar and passim; Stein, Kenneth, The Land Question in Palestine, 1917–1939 (Chapel Hill, University of North Carolina Press, 1984)Google Scholar; and Bunton, Colonial Land, passim.

81. Bunton, Colonial Land, 187.

82. For the planned Legislative Council, its failure, and the Advisory Council that replaced it, see Mogannam, Mogannam E., “Palestine Legislation under the British,” Annals of the American Academy of Political and Social Science 164 (1932): 47–49CrossRefGoogle Scholar. See, further, Likhovski, Law and Identity, 24–25.

83. English company law started providing, by statute, that every company incorporated under the Companies Acts, except charities, could hold land, in the Companies Act of 1862, 25 & 26 Vict., c.89, s. 18. This exception to the Mortmain Acts was repeated in later recodifications of English company law, down to and including the Companies Act of 1948, 11 & 12 Geo. VI, c. 40, s. 14(1). The abolition of the law of Mortmain in the Charities Act, 1960, 8 & 9 Eliz. II, c. 58, ended the need for such an exception. For more detail on the decline and end of the English law of mortmain see Oosterhoff, A.H., “The Law of Mortmain: an Historical and Comparative Review,” University of Toronto Law Journal 27 (1977): 257–334CrossRefGoogle Scholar, esp. 288–95; and Dawson, Ian, “The Rule against Inalienability—a Rule without a Purpose?” Legal Studies 26 (2006): 414–36CrossRefGoogle Scholar, esp. 426–29. For the more restrictive Palestinian regime see Companies Ordinance, note 28 above, section 15, which provided that “the Registrar shall not register any Company which has as its object or one of its objects the acquisition and development of land generally in Palestine unless such Company produces a certificate under the hand of the High Commissioner empowering it to hold lands generally.”

84. For the use of waqfs in Mandate Palestine see Reiter, Islamic Endowments, 49–50. Arguments five and six build on comments by a referee for the Law and History Review, for which I am thankful.

85. CZA, file KKL5/14060 (original in Hebrew; my translation). Barth's letter was mentioned by Alexander, Gavriel, “The Foundation of Himnuta Ltd. and Its Earliest Uses (1938–1940),” Kathedra 68 (1992): 80, 87Google Scholar. The history of the Anglo-Palestine Bank was described in Nahum Gross, Nadav Halevi, Efraim Kleiman and Marshall Sarnat Banker to an Emerging Nation: the History of Bank Leumi Le-Israel (Jerusalem: Masada, 1977); for Barth and his career at the bank, see ibid., 173–74. For “Himnuta” see text to notes 123–132 below.

86. Evidence of such family trusts, which could easily be created without having been brought to the attention of any public authority, may certainly elude researchers working in public, rather than private, archives. My searches, however, included the dozens of private archives, including those of leading Mandate era lawyers, which have been deposited in the ISA and the CZA. Still, I found no evidence of family trusts on the English model.

87. See note 28 above. The same power was only, in England, legislatively recognized in 1906: Public Trustee Act, 1906, 6 Edw. VII, c. 55, s. 4(3).

88. On the rise of corporate trusteeship in the United States, see Friedman, Lawrence M., “The Dynastic Trust,” Yale Law Journal 73 (1964): 563–72CrossRefGoogle Scholar; on the equivalent process in the United Kingdom see Marshall, David R., Corporate Trustees (London: Europa Publications, 1952)Google Scholar; Moffat, Graham, Bean, Gerry and Probert, Rebecca, Trusts Law, 5th ed., (Cambridge: Cambridge University Press, 2009): 429–30CrossRefGoogle Scholar. Trust companies first appeared in Massachusetts “in 1818 or 1822,” and then, a decade or two later, in South Africa, where “[t]he management of private trusts was often [since the mid-nineteenth Century] undertaken by trust companies:” Honoré, “Trust,” note 2 above, 855.

89. For the free nineteenth-century American use of the term “trust,” see Scott, Austin Wakeman, “Fifty Years of Trusts,” Harvard Law Review 50 (1936): 73–75CrossRefGoogle Scholar. For the “trust [shintaku] companies” of early twentieth century Japan, which were, in substance, lending institutions rather than trusts, see Dogauchi, Hiroto, “Trusts in the Law of Japan,” in La Fiducie Face au Trust dans les Rapports D'affaires, ed. Cumyn, Madeleine Cantin (Bruxelles: Bruylant, 1998)Google Scholar, 106; see, further, Arai, Makoto, “Japan,” in Trusts in Prime Juridictions, 3rd ed., ed. Kaplan, Alon (London: Globe Business Publishing, 2010), 234–36Google Scholar.

90. Palestine Post, “Trust Company for Tel Aviv Port Development: Utility Corporation opens Subscription Lists,” May 28, 1936, 1. Similarly, the Builders' Trust Limited was a bank, not a trust: Palestine Post, “Help for the House-owner: Builders' Trust Limited formed in Tel-Aviv,” January 26, 1938, 3. Other trust companies with few, if any, traits distinguishing them from non-trust companies were the Ramelana Trust Co., Carmel Investment Trust, and Joseph Loewy & Co., for records of which see ISA, files P-7/919, P-8/919 and P-9/919 (Joseph Loewy or Löwy, a Jewish engineer and entrepreneur of German birth, who was active in the Palestinian land market since before World War I, was instrumental in the 1930s extension of Jewish Haifa and the establishment of settlements to the north, such as the town of Nahariya; see Yoav Gelber, New Homeland: Immigration and Absorption of Central European Jews, 1933–1948 [Jerusalem: Ben Zvi Institute, 1990] 358–59, 364. The Carmel Investment Trust purchased and developed land on the central Carmel plateau; see Palestine Post, “Central Carmel Plateau between Athlit and Nesher,” November 12, 1948, 14). The archival materials the three companies left make possible a characterization of their activities. No activities particularly characteristic of a trust—rather than a company or corporation—were found.

91. For the Palestine Orchestra Trust see Teplitz, Uri, The Story of the Philharmonic Orchestra (Tel-Aviv: Keter, 1992), 15–16Google Scholar; and Palestine Post, “Reply to Musicians' Complaints,” June 28, 1946, 3. The orchestra's musicians rebelled in 1946, deciding not to renew their contracts with the trust, but rather to form a self-governing cooperative to replace the trust as the orchestra's managing body; see Palestine Post, “Palestine Orchestra to turn into Cooperative,” May 28, 1946, 3.

92. Several construction projects where this practice was used provided the factual background to Ben-Ya'acov (note 53 above), where Shaw J declared it to be ineffective (the quoted phrase is drawn from the Court's quotes from contracts signed by individual purchasers; ibid., at 631). Eliash, appearing for the purchasers, argued that the committee members could be seen as trustees for every purpose except registration, but the court, unsurprisingly, rejected this contention. The registration of rights in flats, separately from the rights in the land they stood on, first became possible during the Ottoman era, by way of analogy from section 25 of the Ottoman Land Code of 1858 (which referred to rights in gardens, orchards, and vineyards rather than in flats). The possibility of such registration was abolished by the British in the Land Law (Amendment) Ordinance, 1937, section 1, although existing registered rights in “trees,” “buildings,” and “rights to build or add to existing buildings” were preserved. Flat owners were thus left in need of devices such as the scheme described in the text, until the enactment of the Condominium Act of 1952. See a brief review of the history of the subject in Ben-Shemesh, Shimon, “On the Abolition of the Separate Registration of Buildings and Plants,” HaPraklit 26 (1970): 403Google Scholar.

93. This trust, created in 1935, provided the factual scenario behind CA 87/50 Liebman v. Lifshitz 6 PD 57 (1952).

94. See, for example, the Palonath Trust and Agency Ltd., incorporated in order to “manage a trust investment company business:” Palestine Gazette, Hebrew Version, No. 517, June 6, 1935, p. 477. The English version of that same issue of the Gazette included, for example, a notice of the incorporation of the Oriental Trust & Investment Company Ltd. (OTIC), incorporated in order “to account lands and any estate or interest therein and to develop and turn to account same.” These were not the only trust companies the incorporation of which was noticed in this issue of the Gazette, which I have picked as a sample. The Palestine Post published a weekly report on the “weekly list of new enterprises” published in the Gazette; many of those reports feature trust companies. See, for example, the following reports: “Incorporation of 13 Private Companies,” January 14, 1937, 10 (one trust company); “New Companies and New Investments,” July 23, 1937, 12 (two trust companies); “LP.64,000 Invested in Local Industry and Trade,” March 16, 1939, 9 (four trust companies); “Investments of LP.200,000 in August: 10 New Firms Commence Business,” September 27, 1939, 6 (four trust companies); “Investments,” May 18, 1941, 4 (one trust company); and the apparent record holder, “New Financing in Palestine: 23 Investment Trusts Formed at One Time,” June 13, 1935, 1. The archives yield many further examples, such as the following trust companies, all of which specialized in purchasing, holding, and selling real estate: the Union Holding and Trust Co., Ltd: ISA, files M-24/319, M-21/856, M-11/857, M-52/4355; Ramelana Trust Co., Ltd., Carmel Investment Trust Ltd., and Joseph Loewy & Co., Ltd (for which see note 90 above); Fidelity Emun Investment and Trust Co. Ltd: CZA, file KH4 7626; and the Palestine Trust Corporation: ISA, file M-20/309.

95. For the requirements of the Companies Ordinance, section 15, see note 83 above and text thereto. Kantorovich's description of his prewar practice is in the ISA, file M 714/19: Minutes of meeting held in office of Administrator General on Monday, 29th April, 1946. Participating were Administrator General Kantorovich, H.E. Baker, acting solicitor general, and J.F. Spry, assistant director of land registration.

96. Palestine Post, “A.P.B. Trust Company Established: £P.50,000 Fully Paid Share Capital,” August 13, 1939, 7; a Hebrew version of the same story was published in Davar, August 14, 1939, 3.

97. Palestine Post, “Foreigners' Local Property: Activity of A.P.B. Trust Company,” September 8, 1939, 4.

98. Palestine Post, “Local Deposits for Financing War: Anglo-Palestine Bank's 1943 Report,” May 11, 1944, 2.

99. Gross, Banker, 269.

100. As illustrated by the facts of Hausdorf v. Metzger, note 65 above. Banks also served as debenture trustees: see, for example, notice of a general meeting of the debenture holders of Teltsch House Ltd., Palestine Post, August 10, 1939, 4, mentioning the Kupat Am Bank Ltd. serving as trustee.

101. Insurance company “Tzion” participated in the forming of the “Mortgage Trust Company, Ltd.,” to which some mortgages “Tzion” held were transferred: Davar, “'Tzion' Rising: Income Doubled in 1941,” April 26, 1942, 4.

102. See, for example, the “Zorfan” Trust Company, established to offer “prompt mutual assistance for war-time damage from a special Compensation Fund formed through the cash subscriptions of members:” Palestine Post, “War Risk Fund,” September 20, 1940, 6 (properties in Palestine were damaged during World War II by Italian air bombings, which also claimed numerous Palestinian lives). At the end of the “first accounts period,” “allocation of compensation will be made or, if the property registered with the Fund is not damaged, money will be repaid:” ibid. The directors included Shmuel Tolkowsky, M.B.E., Ernst Kahn, the founder of PIA (see text to note 104), and Menachem Dunkelblum, a leading lawyer and future justice of the Supreme Court of Israel.

103. For its history see Doron, Shalom, “From Exchange Bureau to Stock Exchange (1933–1962),” Riv'on Le'Banka'ut 137 (1997): 43–83Google Scholar.

104. For the appearance of demand for investment opportunities and services, and the establishment of the Tel-Aviv stock exchange, see Gross, Banker, 178–79; Gelber, New Homeland, 419–23. For the establishment of PIA see Gelber, ibid., 422; and Michaelis, Alfred, “A Hundred Years of Banking and Money in Eretz-Yisrael,” Riv'on Le'Banka'ut 91 (1984): 87Google Scholar.

105. Gelber, New Homeland, 419–20; Michaelis, “A Hundred Years of Banking and Money in Eretz-Yisrael,” last note, 88.

106. L. C. B. G, “Fixed and Flexible Trusts,” Modern Law Review 1 (1937): 68–69Google Scholar.

107. Palestine Post, “Half-Million Pound A.P.B. Trust,” September 30, 1945, 2; see also Gross, Banker, 209.

108. Many earlier investment trusts, such as those mentioned in note 94 above, were evidently disregarded, perhaps for marketing purposes, by A.P.B. top brass. Siegfried Hoofien, General Manager from 1925 to 1947, seems to have thought of establishing A.P.B.-controlled trust companies for several years before the first such company was eventually formed in 1939. In 1935 he proposed that the bank sell its Palestine Electric Company (P.E.C.) stock to a trust company formed for that purpose. The scheme was supposed to enable the bank to realize its profits on its P.E.C. holdings without relinquishing its voting rights. It was dropped on the advice of London solicitors, Cazenove, Akroyds & Greenwood & Company, and Linklaters and Paines. See correspondence in CZA, file L51\404.

109. Palestine Post, Advertisement, May 18, 1934, 20.

110. It advertised in February 1936 that it had “Funds Available for conservative mortgage loans to responsible building owners:” Palestine Post, February 16, 1936, 2.

111. It advertised an “exquisite family home in Rehovoth:” Palestine Post, May 30, 1935, 12.

112. “Business Offer,” Palestine Post, December 24, 1936, 11.

113. Such as the Palestine Plate Glass and Paint Works (Shepherd, Tobias and Co.) Ltd. of Haifa: Palestine Post, “Glass and Paint Factory: New £15,000 Company for Haifa,” November 4, 1935, 5.

114. See a letter by Moses to potential clients, marketing his services, in CZA, file S7\2108. Moses, chairman of the Organization of German Zionists (Zionistische Vereinigung fuer Deutschland) from 1933 to 1937, later became the first comptroller of the State of Israel, serving from 1949 to 1961.

115. Gelber, New Homeland, 422; and see the “company history” page on the PIA web site, http://www.pia.co.il/pia/Front/Document.asp?ID=520505. PIA paid a dividend of 8.4% p.a. for 1940: Palestine Post, “Progress of Palestine Unit Trust,” December 30, 1941, 2.

116. As to Kibbutz Beit-Alpha: see contract of May 1941 between the Kibbutz and Palinvest, the Palestine Investment Service Ltd., and deed of charge granting the GTC a charge over the Kibbutz's crop of wheat and barley: both in CZA, file A376\288.

117. For the debate regarding the legal form to be given to the JNF, see Herbert Bentwich, “Zur Legalisierung des jüdischen Nationalfonds,” Die Welt, September 28, 1906, 27–32; and Max Bodenheimer, “Zur Legalisierung des jüdischen Nationalfonds,” Die Welt, October 3, 1906, 13–14, and October 12, 1906, 12–14. See, further, Doukhan-Landau, Leah (Moses Doukhan's daughter), The Zionist Companies for Land Purchase in Palestine (Jerusalem: Ben Zvi Institute, 1979) 63–85Google Scholar; Shiloni, Tzvi, The Jewish National Fund and Settlement in Eretz-Israel, 1903–1914 (Jerusalem: Ben Zvi Institute, 1990) 26–29Google Scholar; and Margery and Bentwich, Norman, Herbert Bentwich: The Pilgrim Father (Jerusalem: Hozaah Ivrith, 1940) 139–40Google Scholar.

118. The archive of “Ha'avara” now forms Class L57 at the CZA. For the history of the “Ha'avara” transfer operation, see Feilchenfeld, Werner, Five Years of Jewish Immigration from Germany and the Haavara-transfer (Tel-Aviv: ‘Haaretz' Press, 1938)Google Scholar; Feilchenfeld, Werner, Michaelis, Dolf and Pinner, Ludwig, Haavara-transfer nach Palästina und Einwanderung Deutscher Juden 1933–1939 (Tübingen: J. C. B. Mohr (Paul Siebeck), 1972)Google Scholar; Pinner, Ludwig, “Vermogenstransfer nach Palästina, 1933–1939,” in In Zwei Welten: Siegfried Moses Zum Funfundsiebzigsten Geburtstag, ed. Tramer, Hans (Tel-Aviv: Bitaon, 1962)Google Scholar, 133; Gelber, New Homeland, 26–35, 154–175; Bondi, Ruth, Felix: Pinchas Rosen and his Time (Tel-Aviv: Zmora Bitan, 1990)Google Scholar 120, 247, 290; Rosenzweig, Rafael N., The Economic Consequences of Zionism (Leiden: E.J. Brill, 1989) 81–89Google Scholar; Strauss, Herbert A., “Jewish Emigration from Germany, Nazi Policies and Jewish Responses (II),” Leo Baeck Institute Yearbook 26 (1981): 343CrossRefGoogle Scholar; Gross, Banker, 176–78; and Black, Edwin, The Transfer Agreement: the Dramatic Story of the Pact Between the Third Reich and Jewish Palestine (New York: Carroll & Graf, 2001)Google Scholar. For the subsidy “Ha'avara” paid Palestinian purchasers of German goods to reimburse them for the prices demanded by German vendors, see the documents in CZA file A417/422, including statements of claim and judicial decisions in lawsuits depositors filed against “Ha'avara” for deducting a larger fraction of sums deposited than was agreed; Ha'avara had to pay larger subsidies as the Germans demanded higher and higher prices.

119. In furthering those purposes, it established other trust companies, such as the Near East Trust Co., established in 1934 as a “Ha'avara” affiliate. In 1937, the Near East Trust Co. proposed “to grant second-transfer mortgages… from money placed at its disposal by … Ha'avara,” and “issue LP.30,000 of 6% certificates which will be offered to transfer immigrants.” “Preference” was to “be given to prospective immigrants who can thereby obtain an [immigration] certificate”: Palestine Post, “Second-Transfer-Mortgages managed by the Near East Trust Co.,” April 14, 1937, 10. Once immigration from Germany was cut short by the war, the Near East Trust Co. shifted its activities to supporting the “middle class” farming settlements founded in Palestine by Jewish emigrants from Germany (being “middle class” principally meant, among late Mandate era Palestinian Jews, not being a member of the powerful Jewish Labourers' Federation, the histadrut). It became “a purchasing organization for a number of grocery stores,” “a subsidiary enterprise of the Rural and Suburban Settlement Company (RASSCO),” itself a Ha'avara affiliate: Palestine Post, “LP.50,000 Debenture Issue of ‘Rassco,’” June 25, 1945, 2. It collectively marketed the produce of “middle class” communities to both grocery stores and industrialists, who contracted with the trust to buy such produce from the trust exclusively: see overview, dated December 16, 1943, of the trust's first year of renewed operations, and other pertinent documents, in CZA, file 415\422.

120. After the anschluss of March 1938, operations similar, although not identical, to “Ha'avara” were put in place for Austrian and (later) Czechoslovak Jews. These operations, like “Ha'avara” itself, only lasted until the opening of World War II; see sources in note 118 above.

121. For data on the sums transferred through “Ha'avara” and on capital imports to 1930s Palestine generally, see Gelber, New Homeland, 152, 172; Michaely, Michael, Foreign Trade and Capital Imports in Israel (Tel-Aviv: Am Oved, 1963)Google Scholar 1, 3; Beenstock, Michael, Metzer, Jacob and Ziv, Sanny, “Immigration and the Jewish Economy in Mandatory Palestine,” Research in Economic History 15 (1995): 149–213Google Scholar; and Gozansky, Tamar, Formation of Capitalism in Palestine (Haifa: University Projects Press, 1986) 99–107Google Scholar.

122. On the treuhand see, for example, Grundmann, Stefan, Der Treuhandvertrag. Insbesondere die werbende Treuhand (München: C. H. Beck, 1997)Google Scholar; Löhnig, Martin, Treuhand: Interessenwahrnehmung und Interessenkonflikte (Tübingen: Mohr Siebeck, 2006)Google Scholar; and Hein Kötz, “Trusts in Germany,” in La Fiducie, 175.

123. Alexander, “Foundation of Himnuta,” 86.

124. For the non-Jewish German community of late-Ottoman and Mandate-era Palestine, and its “German Colonies,” see Ben-Artzi, Yossi, From Germany to the Holy Land (Jerusalem: Ben Zvi Institute, 1996)Google Scholar.

125. For “Mheiman” see Alexander, Gavriel A., “Land Transactions in Haifa between Germans and the Jewish National Fund, 1936–1937,” Kathedra 48 (1988): 164Google Scholar; and Katz, Yossi, The Battle for the Land: the Jewish National Fund before the Establishment of Israel (Jerusalem, Magnes, 2002) 56–59Google Scholar. My description omits several additional complexities that characterized the transactions to which “Mheiman” was a party, but are unnecessary for present purposes.

126. Alexander, “Land Transactions in Haifa between Germans and the Jewish National Fund, 1936–1937,” 178–81.

127. On “Himnuta” see, generally, Alexander, “Foundation of Himnuta,” passim. For the winding-up of “Mheiman” see Alexander, “Land Transactions,” 175, n. 43. For the many 1940s uses of “Himnuta” see Alexander, “Foundation of Himnuta,” 93–95; and Katz, Battle for the Land, 196–98, 242–55. For later (post-1967) uses of “Himnuta” see Ehrlich, Ayal, “West Bank Land Fraud,” Journal of Palestine Studies 15 (1986): 161CrossRefGoogle Scholar.

128. The memoranda and statutes of “Mheiman” have been lost, but not the contract it concluded with the JNF; I follow Alexander, “Land Transactions,” 175–76. For the memoranda and statutes of “Himnuta,” see Alexander, “Foundation of Himnuta,” 86. The contract “Himnuta” concluded with the JNF is quoted by Katz, Battle for the Land, 59; the original is at the CZA, file L1/597.

129. See examples in notes 90 and 94 above.

130. Segev, Tom, Palestine under the British (Jerusalem: Keter, 1999) 353–59Google Scholar.

131. For the share allocation see Alexander, “Land Transactions,” 176; and Alexander, “Foundation of Himnuta,” 91–93.

132. For Barth's letter, see Alexander, “Foundation of Himnuta,” 88.

133. Land Transfers Regulations, 1940, Palestine Gazette, Gazette Extraordinary, No. 988, February 28, 1940, Supplement No. 2.

134. For Palestinian Arabs' sales of land to Zionist settlers, both individuals and organizations, throughout the Mandate period, and for Arab agitation against such sales, see Cohen, Hillel, An Army of Shadows: Palestinian Collaborators in the Service of Zionism (Jerusalem: Ivrit, 2004)Google Scholar.

135. For the practice described see CZA, file KKL5/15927, minutes of a meeting between Y. Stroumza, T. Wolf and A. Danin (all JNF operatives), held November 5, 1947 (the phrase “trusted persons” appears in this document); ibid., file KKL5/15929, letter dated January 4, 1948, by JNF land department to Advocate Yoav Sugarman. See also Katz, Battle for the Land, 129, 232, n. 87 and text; and Katz, Yossi, Jewish Settlement in the Hebron Mountains and the Etzion Bloc (Ramat Gan: Bar-Ilan University Press, 1992) 31Google Scholar.

136. See note 68 above and text thereto.

137. This prominence of lawyers and bankers principally familiar with German law and finance made for curious Anglo-German hybrids, such as the Fidelitas Investment & Trust Co. Ltd. advertising its Treuhand services in the Palestine Post, March 9, 1934, 7.

138. Statistics of the German immigrants in Haifa, 1936, found in CZA, file S7\377. The data quoted are from Table 8.

139. Banks St., Deposit St., and Account St. are nearby.

140. See, for Quebec, Claxton, Studies on the Quebec Law of Trust, 12–25.

141. See, for example, Quebecois jurist Pierre-Basile Mignault's essay “A propos de fiducie,” Revue du Droit 12 (1933): 78Google Scholar, and the opinions by Chief Justice De Villiers of the Cape Colony discussed by Honoré, “Trust,” note 2 above, at 860 (incorporating into the law of the Cape “the English conception of a trustee de son tort”) and 862 (incorporating into the law of the Cape the English rule that on the insolvency of a registered owner of land, who held it as trustee although the register did not reflect this fact, the beneficiaries have priority over the trustee's private creditors as regards the trust land). De Villiers clothed his reception of English ideas in civilian terminology; there was no explicit reception.

142. See, for example, decisions by James Rose Innes, Chief Justice of South Africa, cited in Honoré, “Trust,” note 2 above, 862 and 868 (“the English law of trusts forms, of course, no portion of our jurisprudence… but it does not follow that testamentary dispositions couched in the form of trusts cannot be given full effect in our own law”).

143. Tedeschi, Guido, “Contemporary Trust Business,” HaPraklit 1 (1943) 78Google Scholar. He could also have cited Ceylon, which adopted the English trust on top of a Roman–Dutch legal stratum: Cooray, Reception in Ceylon. For biographical information on Tedeschi see Sagy, Yosef, “Interview with Gad Tedeschi,” in Essays in Private Law, in Memory of Gad Tedeschi, ed. Barak, Aharon, Englard, Yitzhak, Shalev, Gavriela and Rabello, Mordechai A., (Jerusalem: Sacher Institute, 1995), 23Google Scholar.

144. For biographical information, see Landau, Moshe, “In Memory of Alfred Witkon,” in Justice and the Judiciary, ed. Barak, Aharon, Landau, Moshe and Ne'eman, Ya'acov, (Tel-Aviv: Schocken, 1988)Google Scholar, 11 (a collection of Witkon's articles); Haim Cohn, “On Alfred Witkon,” in ibid., 15.

145. See a listing of “the chief custodial purposes of [medieval] uses” in Getzler, Joshua, “Duty of Care,” in Breach of Trust, ed. Birks, Peter and Pretto, Arianna, (Oxford: Hart, 2002)Google Scholar, 43. Wielding power to dispose of land, including testamentary disposition, and escaping the Crown's fiscal claims are the last two.

146. Witkowski, Alfred, “Private Trusts in Palestine,” HaPraklit 3 (1947–48): 99, 102Google Scholar.

147. The quotes are from The Palestine Order-in-Council, 1922, article 46.

148. Ibid.

149. For the introduction of this principle into Ottoman law see Malchi, History of Law, 62–63.

150. Tedeschi, Guido, “On English-style Private Trusts in Eretz-Yisrael,” HaPraklit 3 (1947–1948) 306Google Scholar.

151. For Dickstein see Likhovski, Law and Identity, 127–153.

152. Dickstein, Paltiel, “On Ways for Completing Our Law and on the Private Trust,” HaPraklit 4 (1948): 4Google Scholar. Another group of 1940s publications to discuss the applicability of the common law private trust in Palestine were textbooks and practitioners' manuals on income tax law. The juxtaposition of the references to private trusteeship in the Income Tax Ordinance with Eliash and the mid-1940s cases applying it made for great uncertainty, which is reflected in the income tax literature. Whereas some treatises, looking squarely at the provisions of the 1941 Ordinance, simply assumed, without argument, that private trusteeship was part of the law of Palestine (Siegfried Moses, The Income Tax Ordinance of Palestine [Jerusalem, Tarshish: 1942] 96; Abraham Fellman, The Palestine Income Tax Law and Practice [Tel-Aviv: Lapid, 1946], 82, 128–29, 232, 254, 288, 292, 378), other works, being aware of the conflicting line of case law, were driven to ambiguous statements on the subject. Gabriel Eichelgrün opined in 1945 that “One can say that the applicability of the English law of trusts is not yet explored at all in Palestine… It is … not impossible that the Palestine courts might today be more inclined to accept the substance of the English law of trusts in Palestine”: Palestine Income Tax Guide (Haifa: Paltax, 1945) 136Google Scholar. Moses reflected in the second edition of his treatise that “[t]he legal possibility of validly creating in Palestine a trusteeship in cases other than those provided for in statutes … has been in the past somewhat doubtful, but in general assumed as existing. This view has been confirmed by section 21A, introduced by the Income Tax (Amendment) Ordinance, 1945, which pre-supposes the possibility of creating a trusteeship for the purpose of a “settlement” in favour of minors”: Moses, Siegfried and Schwarz, Walter, The Income Tax Ordinance of Palestine, 2nd ed., (Tel-Aviv: Bitaon, 1946) 78Google Scholar.

153. Miller, Jonathan M., “A Typology of Legal Transplants: Using Sociology, Legal History and Argentine Examples to Explain the Transplant Process,” American Journal of Comparative Law 51 (2003): 839–85CrossRefGoogle Scholar.

154. For which see Bechor, Guy, The Sanhuri Code, and the Emergence of Modern Arab Civil Law (1932 to 1949), (Leiden: E. J. Brill, 2007)CrossRefGoogle Scholar.

155. The ordinance exempts “religious trusts regulated by the Buddhist Temporalities Ordinance” and “religious trusts regulated by the Muslim Intestate Succession and Wakfs Ordinance:” An Ordinance to Define and Amend the Law Relating to Trusts, No. 9 of 1917, 4 of 1918, s. 109.

156. Palestine Order in Council, Arts. 52, 53(3), 54(3).

157. Another example would be some Africans' enthusiastic use, during the early twentieth century, of the newly established British colonial courts, for which see Chanock, Martin, Law, Custom, and Social Order: The Colonial Experience in Malawi and Zambia (Portsmouth, NH: Heinemann, 1998) 103–4Google Scholar, cited in Merry, “From Law and Colonialism,” 574.