Unjust Enrichment: A Feminist Critique of Enrichment

Sydney Law Review, The, Vol. 36, No. 1, Apr 2014: 69-98

UNSW Law Research Paper No. 2014-03

30 Pages Posted: 15 Apr 2014

See all articles by Simone Degeling

Simone Degeling

University of New South Wales, Australia - Faculty of Law

Mehera San Roque

University of New South Wales (UNSW) - Faculty of Law

Date Written: April 2014

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.

Keywords: Unjust Enrichment, Feminist Critique, Private Law

Suggested Citation

Degeling, Simone and San Roque, Mehera, Unjust Enrichment: A Feminist Critique of Enrichment (April 2014). Sydney Law Review, The, Vol. 36, No. 1, Apr 2014: 69-98, UNSW Law Research Paper No. 2014-03, Available at SSRN: https://ssrn.com/abstract=2424578

Simone Degeling (Contact Author)

University of New South Wales, Australia - Faculty of Law ( email )

Kensington, New South Wales 2052
Australia

Mehera San Roque

University of New South Wales (UNSW) - Faculty of Law ( email )

Kensington, New South Wales 2052
Australia

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