Requirement of complete constitution of property in express trust: whether relevant in waqf

• Main Authors: Ali, Zuraidah, Abdul Manaf, Zati Ilham
• Other Authors: Mohamad, Nor Asiah
• Format: Book Chapter
• Language: English; English
• Published: Global Waqf Conference 2021
• Subjects: BPH741 Waqf; K Law (General); K559 Comparative Law
• Online Access: http://irep.iium.edu.my/95392/1/95392_Requirement%20of%20complete%20constitution%20of%20property.pdf; http://irep.iium.edu.my/95392/6/95392_requirement%20of.pdf; http://irep.iium.edu.my/95392/

Waqf has often been compared to the common law concept of trust. Scholars have noted common traits in terms of their conceptual, structural as well as functional frameworks. However, each concept possesses certain features which set them apart and treating them alike may lead to the invalidation of the other. The validity of an express trust requires more than the satisfaction of the test of three certainties, it is also trite law that an express trust must also be properly constituted; either by a settlor’s act of transferring title of the property to the trustees to be held on trust for an indicated beneficiary or charitable purpose, or by declaring himself trustee of the property for a person or purpose. While this is necessary for the validity and enforcement of an express trust, the need to ensure that the Waqf property is properly constituted in the hand of the mutawalli (trustee) is also vital. This paper, through a doctrinal comparative analysis, aims to analyse the requirement of the constitution of express trust under the common law and assess whether such requirement, if unfulfilled, will also affect the validity of a Waqf. The concept of effective transfer as well as the intention of the donor in making an express trust or Waqf will be explored and compared based on the principles of common law and equity as well as under the principles of Waqf in Islam. The disparity in requirements will further show the differences between Waqf and trust and reinforce the notion that they should not be treated alike and therefore issues on validity of these two concepts can be addressed in both Shariah and civil court.