Trusts And Trustees:

By: Executive Committee of the Editorial Board. , Lewis N. Dembitz

It has been shown under Guardian and Ward and under Community how the Jewish law took notice of the various powers and duties of those to whom the property of orphan children or of the community was entrusted for management. But a fiduciary relation might also be sustained toward other parties, as, for instance, a betrothed or married woman; and then the trustee was known as (lit. "a third man"). There is, however, no wide development of the law of trusts, such as is found in modern, especially Anglo-American, law.

The Mishnah (Ket. v. 8) puts the case of a husband who maintains his wife in food and clothing through a trustee, and prescribes the least amount of food, raiment, and pin-money which he must furnish annually. A much more important passage for this purpose, however, is Ket. vi. 7, which presents a case like that of a trust for the separate use of a married woman under the English equity system:

"When one puts money in the hands of a trustee for his daughter and she says, 'I have full confidence in my husband,' the trustee should nevertheless carry out the trust placed in him [that is, he should disregard her wish and invest the money in land for the daughter's use]. Such is the opinion of R. Meïr; while R. Jose says, even if the field has been already bought and she is willing to sell it, it is sold right then. When does this apply? In the case of an adult woman; but the wishes of an infant amount to nothing."

In the Talmud (Ket. 69b), on the basis of a baraita, the position of the sages is thus explained: A betrothed damsel may not, according to R. Meïr, turn the trust fund over to her betrothed. R. Jose says she may. Both, however, agree that, when actually married, the wife, if of age, may turn the fund over to her husband. Later authorities (see Bertinoro ad loc. ) hold that the Halakah is with R. Meïr.

In Giṭ. 64a a trustee ( ) is entrusted by the husband with a bill of divorcement, and a dispute arises between the husband and the trustee as to whether the bill was merely deposited with the latter, or was given to him for delivery to the wife, to dissolve the marriage bond. Two amoraim differ on the point whether the husband or the trustee should be credited in his assertion in such a case; but the question is broadened to apply to the more frequent case in which a bond or deed for money or property is deposited with a trustee for both parties to the instrument. The conclusion arrived at is that the word of the trustee must be taken, without any oath, against the assertion of either of the parties who appointed him; for by making him their trustee they have vouched for his truthfulness. It is so ruled in the codes; e.g. , in Maimonides, "Yad," Malweh, xv. 8; Shulḥan 'Aruk, Ḥoshen Mishpaṭ, 56, 1.

E. C. L. N. D.