Charities, Charity

Background

Charity, as a social construct and legal concept, is confined to and defined by the common law. It dates from the Statute of Charitable Uses 1601 in England (43 Eliz. 1. Cap. 4), which laid the legislative foundations for the development of modern charity law. Others have traced the origin of the laws of charity back to Judeo-Christian traditions molded by the arrangements of the Catholic Church and its fraternities and reconfigured by Protestant theology as exemplified by a 14th-century poem The Vision of Piers Plowman, which closely resembles the Statute of Charitable Uses. There are intriguing similarities to the Hindu math, and returning crusaders sometimes established institutions, later regarded as charitable, which incorporated notions from the Islamic waqf.

The preamble to the Statute of Charitable Uses 1601 defined charity in terms of the following charitable purposes:

Thereafter, neither a government nor a court would regard a purpose as charitable unless it appeared on that list or could be defined as coming within “the spirit and intendment” of the preamble.

The concept was imposed by default in most of the British colonies, including Canada, Australia, New Zealand, Singapore, Malaysia, India, and Hong Kong. The law has developed through judicial precedent with most of the 60 or so common law jurisdictions having varying degrees of reference back to developing English precedents. The most notable of these was the case of Commissioners for Special Purposes of Income Tax v Pemsel [1891] AC 531 (Pemsel's case) in which the Preamble's disparate items were distilled into four “heads” of charity: relief of poverty, advancement of education, advancement of religion, and other purposes beneficial to the community. In addition, to be charitable, a purpose had to benefit the public. Only since the turn of this century has there been significant proposed and actual statutory intervention in the United Kingdom and some former colonies.

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