Abstract:
This article commences a feminist critique of the unjust enrichment liability model that is informed by a modern taxonomic approach to private law. Together with other legal categories — such as contract, tort, and equity — unjust enrichment is an independent source of rights and obligations. However, unlike areas of private law that have been the subject of sustained feminist analysis and critique, there has been little attention paid to understanding the pattern and impact of gender in unjust enrichment reasoning. This article offers some first steps towards filling that gap. We explore the concept of enrichment, evaluating from a feminist perspective how the tests of enrichment are constructed and applied, paying particular attention to the ways in which unjust enrichment responds to the provision of domestic services and care. Our tentative conclusion is that the gendered norms that operate in other areas of private law, such as torts, do not manifest in unjust enrichment in the same way(s). Further, just as there are critical benefits that flow from attention to how gendered reasoning manifests in unjust enrichment cases, so a taxonomic approach has the capacity to enhance the feminist engagement with private law.
Simone Degeling and Mehera San Roque, Unjust Enrichment: A Feminist Critique of Enrichment. Sydney Law Review, Volume 36, Number 1, March 2014.
First posted 2014-03-14 09:44:51
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