Mortmain: Definition and Meaning

There are certain types of immovable property (especially in terms of ownership) that cannot be transferred to any other person or other such legal authorities. For example, the religious property, like temple, mosque, church, etc. such types of property always remain in the same condition. Secondly, the nature of the activities performed on such property that also does not change ever. Likewise, the term mortmain, in law, defines such type of property.

What does Exactly Mortmain Define?

Mortmain, in law, refers to a perpetual or inalienable ownership of property, usually by a religious place or corporation or other such legal entity, in which the ownership cannot be transferred or taken away by will, or descent, or even sale. The term is commonly used in the context of prohibition in English property law.

Literal Meaning of Mortmain

The term mortmain is basically derived from Medieval Latin term “mortua manus,” and its literal meaning is "dead hand."

Definition of Mortmain

Merriem-Webster dictionary defines mortmain as,

“An inalienable possession of lands or buildings by an ecclesiastical or other corporation” or “the condition of property or other gifts left to a corporation in perpetuity especially for religious, charitable, or public purposes.”

Historical Background

During the Middle period, in some of the the Western European countries (especially in England), the Roman Catholic Church started making real estate property, which area gradually becoming larger and larger. On the other hand, the religious places like Churches, legally recognized as a legal person, and hence, separate from its care taker or administrator (such as the abbot or the bishop), the Church land would not escheat on the death of the administrator, rather goes in the hands of other care taker or administrator. Likewise, the ownership of such property remains same, no changes at all and the land was held in perpetuity. Over period in time, the Church made a large share of real estate in many feudal states, which created issues between the Church and the Crown. The crown was afraid that the huge amounts of property that church owns, would not be available for the use and benefit of the local communities.

So, in order to regulate such practice, in late 13^th century, Kind Edward I enacted “Statutes of Mortmain.” Under this statutes, the King imposed limit on the church’s holding of property. However, such limitation act can also be seen in Magna Carta of 1215 and the provision of the Westminster of 1259. Likewise, the law of mortmain was established to prevent this concentration of property and to ensure that it would eventually be returned to the Crown or to the local community.

Over period in time, the law of mortmain was not remaining limited to religious organizations, but rather expanded to apply to all corporations and legal entities. The idea behind the law was that property should not be allowed to remain permanently in the hands of a single entity without the possibility of transfer or change. This legislation helped to ensure that land and other such property would be used for the benefit of the wider community instead of remained concentrated in the hands of a few.

Mortmain in Modern Times

In modern times, the concept of mortmain is often used to refer to the idea that property or wealth should not be allowed to remain permanently in the control of a single entity that may cause imbalance in society; so there must be the possibility of change or transfer. Likewise, this principle is often embodied in laws that regulate the transfer of property and wealth, as well as in laws that govern the activities of corporations and other legal entities.

Furthermore, in some countries, the concept of mortmain is also used to prevent the concentration of wealth and property in the hands of a few, and ensures that these properties are being used for the benefit of the wider community. To accomplish this idea and propagate the concept of mortmain, various means are practiced, such as taxation, regulation, and restrictions on the transfer of property and wealth.

Conclusion

The term mortmain continues to be relevant today, although its application has evolved over time. In many countries, including the United Kingdom, the legal validity of mortmain has been amended or not in use, but the general principle remains in place. Moreover, the term mortmain still plays an important role in modern legal systems, serving as a reminder of the importance of ensuring that property and wealth are used for the benefit of the society at large and not just for the benefit of a few.

FAQs

Q1. What is meaning of Cestui que?

Ans. Cestui que, in law, refers to the beneficiary or recipient of a trust, will, or other legal arrangement. In fact, cestui que, which also pronounced as “cestuy que, cestui a que” is a shortened version of “cestui a que use le feoffment fuit fait,” literally means, the person for whose use or benefit the arrangement was made, in one word a beneficiary.

The term commonly used in English common law, is derived from the Old French phrase "cestui que use," meaning "he who has the use." So, the term is usually used to refer to the person for whose benefit a trust has been created or who is going to receive the benefits of an estate or will.

Q2. What does exactly Statutes of Mortmain define?

Ans. The Statutes of Mortmain fundamentally were two enactments, which were first passed in 1279 and then in 1290. Edward I of England passed these two statutes with objective to preserve the kingdom's revenues by preventing land from passing into the possession of the Church. Because possession of property by a Church means “mortmain,” which literally meant "dead hand,” the property stuck there forever.