Thursday, March 20, 2014
As a Remedies professor, this spoke to me. Simone Degeling and Mehera San Roque, Unjust Enrichment: A Feminist Critique of Enrichment. Sydney Law Review, Volume 36, Number 1, March 2014.
This article commences a feminist critique of the unjust enrichment liability model. 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 by feminist scholars 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. Our analysis interrogates the extent to which gendered assumptions, patterns or structures are instantiated within enrichment.
In examining the tests of enrichment, we pay particular attention to the ways in which unjust enrichment responds to the provision of domestic services and care. A paradigm concern within feminist scholarship is private law's treatment of women's work, including domestic services, and the recognition of non-financial contributions in the ownership of property within a domestic relationship. There are thus useful comparisons to be made between the treatment of such services in unjust enrichment and, for example, tort and other sources of rights and obligations in private law, which have already been the subject of feminist analysis. Research reveals cases in which these services have been the subject of claims in unjust enrichment. Our initial conclusion is that while the tests of enrichment are vulnerable to gendered assumptions and structures, they also appear to provide protections against these assumptions and their consequences. The same can be said of the methods of valuation of that enrichment, which show a strong commitment to market valuation. The obvious limit to this observation is that the market price must be attentive to embedded hierarchies, including the gendered division of labour. Nonetheless, unjust enrichment's commitment to this market measure has the potential to limit a defendant's ability to devalue women's work.