ABSTRACT
Unlike some areas of law, such as family and human rights law, it is often stated that private law should not care about the resources of the parties or consequences of the court’s decisions on their financial welfare. For example, in the arena of remedies private law is notoriously unconcerned with the impact of an award of damages on the individual defendant; they must place the claimant in the position they were before the harm occurred (in tort) or satisfy her expectations (in contract). In this sphere, the notion of justice at work is corrective justice. The approach taken is commonly justified on the grounds that concerns of poverty and financial hardship are matters for the State in its provision of welfare, or ones falling within the jurisdiction of insolvency processes and not the judiciary. This paper aims to challenge this belief, showing why private law can, and indeed should, care about these issues by highlighting the important role of the social minimum. There are three substantive sections. The first outlines the concept of the social minimum, including its definition and limits. The second shows how this concept is provided and maintained by the government. The third develops the relationship between the social minimum and private law. It highlights how judge-made law is already concerned with poverty and hardship by reviewing different cases in contract, tort, and property. This section finishes by sketching the benefits that flow from a more open and transparent recognition of the social minimum in judicial decision-making.
Gardner, Jodi, Private Law and the Social Minimum (May 29, 2026), University of Auckland Faculty of Law Research Paper Series 2026.
Leave a Reply