Gender Equality in the Different Fields of Private Law

Abstract

In the field of private law, gender inequality takes many different shapes. It may at times be easily noticed from the text of the legal rules, for instance, when certain legal rights are reserved for members of a certain gender (i.e. independency to enter a marriage) or when they are available to both genders but in a discriminatory manner (i.e. men inherit twice as much as women). However, in many legal systems equality is guaranteed by law, but inequality still appears in practice. This may be seen from the fact that, on average, land assets are much more often owned by men or that a higher percentage of men run a business. Various social factors may induce gender inequality, like stereotypical division of gender roles in society (i.e. men as breadwinners and women as caregivers) or the persistence of patriarchal customs and practices (i.e. women should renounce their inheritance rights in favour of male inheritors). The consequences of such factors may also be felt in the field of tort law, especially when it comes to damages suffered by women performing unpaid domestic work or indirect damages suffered by women who have to provide the “informal support” for the person who suffered serious bodily harm that resulted in a situation of dependency. Finally, in the field of contract law, the most difficult tasks seem to be to reconcile the prohibition of discrimination with the freedom of contract and to determine the most suitable legal consequence in case of discrimination.

Authors are listed in alphabetical order. Amalia Blandino authored Sect. 15.4, Letizia Coppo and Gabriele Carapezza Figlia authored Sect. 15.3. Sections 15.1, 15.2 and 15.5 are written by Snežana Dabić Nikićević and Katarina Dolović Bojić.

1 Introduction

Despite the evolution of human awareness and the efforts made to prevent gender discrimination, especially in the last few decades, in the field of private law we may still encounter numerous examples of gender inequality. It appears in many different shapes. Sometimes gender inequality is quite obvious: when certain legal rights, such as inheritance rights, are regulated in such a manner which leads to a direct discrimination on the basis of gender. Sometimes the traces of discrimination may be seen from the very language used by the legal system: like the standard of pater familias or the “reasonable man”. However, it should be noted that most legal systems today actually do have a satisfactory legal framework for achieving formal gender equality. And a source of gender inequality is not so much in the legal norms but in their application or, on the contrary, in the lack of application. The crux of the problem seems to lie in the mentality of people, their tradition and the persistence of patriarchal customs and practices which often affect the capacity of women to enjoy their rights.¹ It is often socially expected, especially in developing countries, that women should not use the opportunity to enjoy certain rights even when they are provided by the law. Furthermore, even though the situation has improved over the last decades,² women are on average still much more engaged when it comes to housekeeping, childcare and other caring responsibilities.³ This yields unequal opportunities for men and women because these women cannot be as economically active and engaged outside the family environment as men can. Therefore, they sometimes have limited opportunities and resources to invest in their career and generate income.

The direct results of such stereotypical views of the role of women in society may be seen in the field of proprietary relations. As will be explained in the first section of this chapter, men are, in general, in a better position than women when it comes to enjoyment of property rights and access to land and other assets and financial services. The focus will also be given to the problem of acquisition and division of marital property since it is the terrain on which one may clearly evidence gender discrimination.

As far as contract law is concerned, one of the most difficult tasks is to reconcile the principle of party autonomy and freedom of contract with the prohibition of discrimination, including gender discrimination, since not every unequal treatment, even though based on the typical risk factors (gender, religion and the like) amounts to discrimination. The goal is, therefore, to identify where the threshold beyond which unequal treatment results into discrimination should be fixed. Or in other words, what are the parameters that must be followed to distinguish unequal treatment, which can be legitimate if based on reasonable grounds, from discrimination, which is on the contrary prohibited.

Finally, when it comes to tort law, a general concern is whether gender roles and stereotypes are of any relevance when it comes to claims for damages and their insurance. The attention will firstly be given to the problem of compensation for pecuniary and non-pecuniary damage suffered by the victim and its connection to the problem of gender inequality. The second part is dedicated to the analysis of an action for compensation for the damage actually suffered as a result of direct or indirect discrimination on the grounds of gender. And finally in the last part, a question is raised whether the use of sex as a factor in the calculation of premiums for the purposes of insurance should be considered as a form of gender discrimination.

A more thorough analysis on these issues has also the purpose to clarify why it is important to reconsider private law from a gender equality perspective and why gender competent private law should be introduced into a legal studies’ curriculum. Importantly, it should be done as it would lead to a better understanding of the causes of gender inequality in practice, a changed view of the traditional gender roles in society and, subsequently, an appropriate way of how it could be prevented.

Learning Goals

• Students can recognise the difference between formal and substantive gender equality

• Students can analyse and explain which social factors contribute to gender inequality

• Students master the ability to reconcile important principles governing Private Law with the principle of non-discrimination

• Students can understand the importance of gender mainstreaming of Private law in all its dimensions, as well as in creating and implementing laws.

2 Gender Equality and Proprietary Relations

2.1 Introduction

Women property rights are still highly circumscribed in many countries.⁴ Some legal systems even today do not grant women equal rights as men when it comes to obtaining, keeping or controlling property. But even when women do have the same legal rights as men, the application of such legal norms could in practice still lead to the unenviable position of women: laws are sometimes ignored or weakly enforced. Thus, women are often unable to claim their rights in the face of social and economic pressures.⁵ Therefore, the first part of the “Gender Equality and Proprietary Relations” section will be dedicated to the explanation of how the legal capacity of men and women may differ with respect to acquisition and enjoyment of (property) rights.

The amount of assets women can own and control may highly be impacted by the regimes regulating property in marriage or extramarital union,⁶ not only during the marriage or extramarital union but also in cases of divorce/separation. Thus, they shape the bargaining power a woman has within her household.⁷ Therefore, the second section will be dedicated to the analysis of the impact of specific marital regime implemented in a legal system on spouses’ property rights, especially the acquisition and division of property acquired during marriage or extramarital union.

Finally, in the last two sections attention will be given to the question of how legal norms, but also stereotypical expectations and the division of gender roles in society, may have an impact on gender equality with respect to the access to land and other immovable assets and access to other assets and financial services.⁸

2.2 Legal Capacity of Men and Women

Until just a few decades ago, the status of men and women in almost all legal systems in the world differed in terms of their legal capacity. The same range of rights was not available to women as to men.⁹ This applied not only to civil rights but also political rights. In some cases women could not be the owners of immovable property, they were often excluded from the right to inherit, in marriage all acquired property belonged to the husband, women did not have the right to vote, to act as politicians, become judges, etc. Daughters were under the patronage of the father, and married women under their husband’s patronage. Even when they could own real estate, the estate was managed by the husband and all the fruits of labour belonged to him. Likewise, they often could not conclude any contract on their own, without the permission of the husband.¹⁰

Although the situation is far better today, discrimination between men and women still exists.¹¹ It can be seen even from the rules that apply in some (usually developing) countries.¹² As explained, in such systems, women’s legal capacities may be reduced once they marry in such a manner that a husband’s permission must be obtained when applying for a passport, entering a contract, or appearing in court.¹³

However, inequality can be seen even more in practice, despite the legal guarantee of equality. As explained, “regardless of equal inheritance rights, custom and tradition usually win out, leaving many women and girls landless”.¹⁴ In many countries even today, it is a matter of custom that a sister should renounce her right to inherit in favour of her brother(s),¹⁵ or that the immovable property is more often bequeathed to male descendants.¹⁶ One of the reasons for this discriminatory practice is the belief that the property inherited by a woman will inevitably become the property of her husband or her in-laws and will thus be lost to another family.¹⁷ Also, women often forego their right to inherit because they fear social judgment.¹⁸ Moreover, even when women do inherit property, control of their property remains in the hands of male family members.¹⁹ In some legal systems the law allows that only one spouse be registered as the owner of the real estate even though it was acquired in marriage.²⁰ In practice it is usually the husband, which gives him the opportunity/power to undertake all legal transactions related to that real estate, from its acquisition to its subsequent disposal (encumbrance or alienation).

2.3 Marital Property

Gender inequality may also appear as a result of the application of a marital regime implemented in a certain legal system. Roughly speaking, there are several marital regimes which regulate the question of property ownership during the marriage (or extramarital union).

Firstly, the so-called “separation of property regime”, which means that spouses maintain separate ownership of any property they acquire during the course of a marriage. Even though this regime may be suitable for women entrepreneurs, it is considered as disadvantageous for most women, due to the fact that non-monetised contributions (such as housekeeping, childcare and other caregiving duties) are usually not recognised upon divorce or in the case of widowhood.²¹

Secondly, so-called “customary regimes”²² wherein the problem of gender inequality is even more apparent. The reason lies in the fact that in such regimes men traditionally administer marital property and therefore have full control over the assets during marriage. Furthermore, non-monetised contributions are not being recognised. And finally, in some cases women even lose the property they brought into the marriage upon divorce.²³

Thirdly, the so-called “community of property regime”. Legal systems which implemented such a regime seem to give better protection to women, especially in the case of divorce or widowhood, since all property acquired during the marriage is jointly owned, except for the inherited property or the property received as a gift. The benefits are also in the fact that it implicitly recognises non-monetized contributions to the household.²⁴ However, even in such legal systems gender inequality exists. For instance, in some countries women are still being deprived of control when it comes to the administration of the joint marital property which is in the hands of husbands during the marriage.²⁵ The inability to control property may lead to the inability to build or retain wealth, which then may lead to the inability to access the formal financial sector.²⁶ Also, in some legal systems,²⁷ the law provides for a possibility of rebutting the assumption that spouses’ shares are equal after the division of marital property and the “superiority” of men can easily be noticed in the case of divorce: it is much easier for men to prove that their contribution to the enlargement of marital property is bigger, since on average they earn more than women. As already mentioned, women are usually much more engaged when it comes to housekeeping and caring for children²⁸ and therefore, more inclined to leave their jobs or work part-time.²⁹ But even when they work full time, they are usually not in a position to accept any additional engagements that might bring them extra money. The lack of time may also lead to, for instance, missing the chance for personal and professional development which might otherwise lead to a better job position or a higher pay. On the other hand, women’s engagement around the house and children allows men to work and develop undisturbed and consequently earn more and reduces the cost of housekeeping and babysitting. Even though the courts take in consideration the non-monetised contribution to the enlargement of the marital property (i.e. housekeeping, childcare, etc.), it is still much less valued than the direct contribution.³⁰ The division of marital property also leads to the inconvenient question of where women and children will eventually live, as custody over children is usually given to the mother.³¹

Finally, it should be mentioned that in some countries each couple may opt for one among multiple regimes that are available to them.³² However, even though women theoretically have the option to choose the regime that offers them the most protection, for instance the community property regime, the use of that option has been very limited in practice and most couples opt for the default regime even though it may not be as protective for women.³³

All aforementioned information raises another question of what type of rules are more advantageous for women in case of division of marital property: the rigid or flexible rules. Some authors take as an example the Swiss system, as a rigid one, and the English system, as a flexible one.³⁴

Example

Swiss Civil Code prescribes four “property masses”—the wife’s matrimonial and non-matrimonial property and the husband’s matrimonial and non-matrimonial property.³⁵ The Code also prescribes what belongs to the spouse’s marital property (primarily the spouse’s income, compensation for inability to work …) on one hand³⁶ and what is non-marital property of the spouse (things for personal use, assets that the spouse acquired before marriage or assets inherited or acquired with no fees during marriage) on the other hand.³⁷ The most complicated part of the Swiss system is determining the contribution of one property to another (for example, something was bought with money from marital property and became a part of the separate property), after which each spouse’s marital property is divided in half, and each spouse receives one half of each.

As a complete contrast to such a rigid and complicated Swiss system is the English system in which the court makes a decision, taking into account criteria, such as financial resources of the parties, their respective contributions, their needs, the age of each party, the duration of the marriage etc.³⁸

In the end of this section, it should be mentioned that some legal systems prescribe a legal fiction that, in the case where only one spouse is registered as the owner of a real estate acquired during the marriage, even though the real estate is jointly acquired in marriage, it will be considered as if both spouses have been registered (both are considered as owners).³⁹ The legal fiction has been created to protect women since it was usually the husband who was registered as the owner. However, the fiction created many problems in practice.⁴⁰ Namely, in cases where the husband concluded some legal transaction related to that real estate all by himself, which means without the permission or even the knowledge of his wife, the courts had to choose whether to protect the wife’s property rights, on one hand, or the third party’s rights, on the other hand, since the third party usually had no idea that the real estate also belongs to the seller’s wife (the unregistered spouse).

2.4 Access to Land and Other Immovable Assets

When it comes to the ownership and other rights on immovables, there are still significant gaps between men and women which leads to an overall weaker economical standing of women, bearing in mind that land assets (and real estate in general) are an important collateral and economical resource.⁴¹ According to the Gender, Institutions and Development Database (GID-DB) from 2019, only in 37 of 180 countries in the world do women and men have the same legal rights and secure access to land assets. However, even in these countries the percentage of women among the total number of agricultural holders is much less than the percentage of men.⁴² Furthermore, women farm holders have significantly smaller farms and of lower quality than men farm holders.⁴³ This is especially the case when it comes to rural areas. Even though women are perceived as a driving force for the maintenance, conservation and development of these areas, they also represent “an invisible force”—it is much more often a case that they assist their husband and other self-employed men with performing unpaid or unrecognised agriculture work, such as raising crops, taking care of domestic animals and producing agricultural products, than that they themselves hold property rights to land or farms.⁴⁴ As explained, the main reason lies in the fact that, even when formal laws and policies are gender sensitive, they may be disregarded in rural and indigenous communities that rely on traditional, unwritten customary practices rather than on written codified law.⁴⁵ Additionally, the registration of land is usually under men’s name as they are considered the managers and heads of household.⁴⁶ However, it is also a result of the default marital regime in some legal systems—separation of property—‘which usually discriminates against women by failing to recognise the wives’ contribution to the formation of marital property through domestic labour or child-rearing and other caregiving duties.⁴⁷

2.5 Access to Other Assets and Financial Services

The fact that, in comparison to men, a smaller percentage of women own immovable property, which is an important collateral, represents also a barrier in accessing credit to start or expand their business.⁴⁸ Therefore, it is not a surprising fact that globally there are much more male owned businesses than female owned businesses. Furthermore, female owned businesses are smaller in comparison to male owned businesses, measured by the employment and turnover.⁴⁹ Other reasons that have been identified as potential constraints on women’s enterprises are⁵⁰ firstly, the continuing pay gap between women and men, which may restrict the financial resources available to women for the creation and growth of business. Secondly, the occupational segregation, both horizontal and vertical: women more often than their male counterparts work part-time, in a quite narrow range of occupations and face barriers in entering senior management and higher paid occupations, which altogether leads to less work experience and less variety of work experience. Finally, women experience significant challenges between balancing work and life (i.e. pregnancy, childbirth, childcare and other caring responsibilities), which can have a negative impact on their business and in general restrict women’s business ownership opportunities.

It should be mentioned that, as opposed to regular financial resources (i.e. bank loans), microcredit is much more available to women. However, it does not solve the problem of gender inequality when it comes to the access to financial resources. Firstly, it is shown that in some countries (e.g. Bangladesh) in many cases women do not really control the use of the funds they obtain—since women have easier access to microcredit, men take advantage of the situation to obtain funds.⁵¹ Secondly, even though microfinance can support female entrepreneurship by providing easier access to finance, some studies show that the lending rate is still low and that women are rather more penalised than men in their access to microcredit, which cannot be explained by their personal differences or differences in projects. Thirdly, as explained, microfinance institutions, as traditional banking institutions, appear to be more interested in the credit relationship and the likelihood of loan repayment than in the type of business they are financing, which means that they do not really promote female enterprise beyond credit and do nothing to stop women staying with traditional activities.⁵²

A problem of gender inequality may also appear in a slightly different guise and even less apparent. Namely, it is not so rare a case that the husband invests money, movable or immovable property or legal rights that are in the regime of joint ownership into the company shares.⁵³ In such cases the question arises whether these company shares only belong to the spouse who invested in them or whether they are in the regime of joint ownership (which means that shares also belong to the wife who is not a member of the company as well). The problem becomes more amplified in case they get divorced. A divorce is usually followed by a division of the property and determination of each spouse’s contribution to the joint property during their marriage. If one of the spouses (usually the husband) is a company member and, therefore, a shareholder, one major dilemma is how it should be decided if a spouse (usually the wife) who is not a company member requests that its contribution to the acquisition of the company share be determined.

Example

In a situation where a husband has invested jointly owned property into the company shares the Serbian highest court has decided in the following manner: “A spouse who does not have the status of a founder may claim against his spouse with the status of a company founder only reimbursement of his contribution to the acquisition of the joint property which had been, without his consent, invested as the founding contribution of the other spouse in the newly formed company.”⁵⁴

3 The Impact of Gender on Contract Law: When Party Autonomy Meets the Prohibition of Discrimination

3.1 Introductory Remarks

Slawson once wrote that the «male bias» of our society has not entailed significant consequences on contract law.⁵⁵ Such assumption opened the way to a lively debate that could be actualised in the following question: does gender have an impact on contracts and contracting?

The question is double-faced: on the one hand, it could be dealt with from a multi-disciplinary perspective, at the borderline between law and neighbouring sciences like anthropology or sociology, by investigating if and to what extent contract law is born gendered and how it could be rewritten in a gender-neutral way; on the other hand, it can be dealt with through a more positive-law-focused approach, by analysing how rules of contract law can prevent gender-based discriminations.

The first topic has been widely explored by feminist legal theories,⁵⁶ which argue in a nutshell that, at least in the western legal tradition, even contract law bears a strong male imprinting.⁵⁷ Several traces of this may be found in the very language used by legal systems to describe contract doctrines:⁵⁸ perhaps the most evident example is the fact that the standard of diligence or efforts required to the parties in the performance of obligations is the one of ‘the good family father’⁵⁹ or the one of the ‘reasonable man’.⁶⁰ In the view of the mentioned theories, the reason lies in the fact that contract law was developed in its main rules and doctrines in a time when women neither had access to contracting nor could be members of the legal profession or legal academia.⁶¹ Contracting was restricted, given that women were under the guardianship of their fathers or husbands and contracts were limited to the market sphere, being instead excluded from the domain of familial relationships.

The second topic—how rules of contract law can prevent gender-based discriminations—is in constant evolution especially at a European level and is closely intertwined with wide-ranging issues like the need to reshape the relationship between production, competition and solidarity and to reconcile party autonomy or freedom of contract with the goal of an equal access to the goods and services offered on the market.⁶²

In this very analysis of the impact that cultural stereotypes and preconceptions have on the dynamics affecting the contractual relationship, namely on the selection of the other contracting party and the choice of certain contract conditions, lies the core of every gender-oriented analysis of contract law. Therefore, it will be the object of the following section.

3.2 The Prohibition of Contractual Discrimination and Its Sources

The prohibition of discrimination is a principle rooted both in the acquis commun (i.e. in the legal traditions of each Member States) and in the communitarian acquis (i.e. the in the legal rules elaborated by European institutions). First of all, it must be remarked that non-discrimination belongs to the constitutional traditions of almost all the Member States,⁶³ if not directly, under the umbrella of the principle of equality, and, if not expressly, through the interpretation of Constitutional Courts and the doctrines developed by Constitutional scholarship.

Example

Art. 3 of the Italian Constitution, in declaring that all citizens are equal before the law, without any distinction based on sex, race, language, religion, political views, personal and social conditions, has been interpreted as imposing on the legislator the duty to treat equally situations that are reasonably equal and differently situations that are reasonably different; Art. 28(2) of Cyprus Constitution provides that ‘Every person shall enjoy all the rights and liberties provided for in this Constitution without any direct or indirect discrimination against any person on the ground of his community, race, religion, language, sex, political or other convictions, national or social descent, birth, colour, wealth, social class, or on any ground whatsoever, unless there is express provision to the contrary in this Constitution’; Art. 6(2) of the Bulgarian Constitution provides that ‘there shall be no privileges or restriction of rights on the grounds of race, nationality, ethnic self-identity, sex, origin, religion, education, opinion, political affiliation, personal or social status or property status’; section 12(2) of the Slovakian Constitution reads that ‘Fundamental rights and freedoms are guaranteed to everyone in the territory of the Slovak republic regardless of sex, race, colour of skin, language, belief and religion, political affiliation or other conviction, national or social origin, nationality or ethnic origin, property, descent or other status. No one may be harmed, preferred or discriminated against on these grounds’; Art. 91 of the Latvian Constitution provides that ‘Human rights shall be realised without discrimination of any kind’; Art. 14 of the Slovenian Constitution provides that everyone shall be guaranteed equal human rights and fundamental freedoms irrespective of national origin, race, sex, language, religion, political or other conviction, material standing, birth, education, social status, disability or any other personal circumstance.

This has gradually led to the acknowledgement, by European case-law and European constitutional-rank sources, of non-discrimination, in its descent from the broader principle of equality,⁶⁴ as a fundamental pillar of the Union order.

Besides its constitutional relevance, the right not to be discriminated against is also laid down by several provisions of European soft and hard law. As to soft law, chapter 3 of the Acquis Principles (Articles 3:101-3:203) is entirely devoted to the prohibition of discrimination and falls between the chapters dealing respectively with pre-contractual obligations (chapter 2) and with the conclusion of contracts (chapter 4).⁶⁵ As to hard law, the provision devoted to the prohibition of discrimination in general is Article 13 of the Treaty Establishing the European Communities (now Article 19 of the Treaty on the Functioning of the European Union), as introduced in 1997 by the Treaty of Amsterdam.

3.3 The Foundation of the Principle and the Structure of the Discrimination Test

The above-illustrated normative framework highlights the twofold role played by the principle of equality: on one side, it is a fundamental right of individuals, on the other side, it is an objective limit to the legislative power in a broad sense that also includes transactional autonomy. The direct applicability of the principle within private relationships casts light on the core issue: the prohibition of discrimination is a limit to party autonomy and, more specifically, to freedom of contract.

This latter, like the right to non-discrimination, is a value that is protected at a constitutional level by the Member States and must be considered, as well, a pillar of the European Union order. Thus, it is necessary to strike a balance between the two. The only way to reconcile the freedom of parties to choose their contracting partner according to their preferences and to determine the content of the relationship in line with their interests is to assume that not every unequal treatment, even though based on the typical risk factors (gender, religion, and the like) amounts to a prohibited discrimination.

That is why the first approach to the discrimination test—the tertium comparationis method—has been abandoned both by the Court of Justice of the European Union⁶⁶ and by the European Court of Human Rights.⁶⁷ According to that approach, for the purpose of ascertaining discrimination, it was enough to compare the way in which the alleged discriminated person is treated, the way in which other people are treated in the same situation and the way in which the discriminated person would be treated if there was no prejudice against him/her. But, that way, the concept of discrimination ended up being reduced to that of unequal treatment.

The problem is, instead, to identify where the threshold beyond which unequal treatment results into discrimination should be fixed. In other words, what are the parameters that must be followed to distinguish unequal treatment, which could be per se legitimate, from discrimination, which is on the contrary prohibited (see the example at the end of this section).

As European case-law suggests,⁶⁸ the criteria for the discrimination test should be, in a nutshell, the following: after an unequal treatment has been detected, what should be assessed is whether such inequality has an objective and reasonable justification, whether it pursues a legitimate aim and whether the means used to pursue such aim are proportional to the aim itself. If the answer to one of the questions is negative, then the unequal treatment falls into the scope of the prohibition of discrimination.

From the mentioned criteria it can be drawn that the discrimination test is double-phased. The first step is to ascertain whether there has been an unequal treatment (based on risk factors) at all, according to the tertium comparationis method. The next step is an assessment of whether such unequal treatment is reasonable and justified and complies with the principle of proportionality. This principle is another pillar of the Community order and a key element in the balancing test undertaken by the European Court of Human Rights whenever it is called upon to decide on a restriction by the Contracting States to one of the fundamental rights or freedoms protected by the Convention.

It is easy to figure that, this way, the problematic focus of the discrimination test moves to the identification of what can justify unequal treatment. The answer implies the existence of a hierarchy of values to be balanced with the right to non-discrimination and such hierarchy should be committed to the whim of the legislators or the courts but inferred from the constitutional axiology.

An example, taken from real case-law,⁶⁹ could be useful to clarify the point, even though it deals more specifically with sexual orientation, rather than gender itself.

Example

In 2014 Mr. Lee, a gay activist advocating same-sex marriage, went to its trusted bakery in Belfast to order a cake and have it customised with the slogan ‘Support Gay Marriage’. A few days after having placed its order and received the payment receipt, Mr. Lee received a phone call from the bakery informing him that the order had been cancelled and refunded because the owners were devout Christians who believed gay marriage to be a sin and intended to run their business in compliance with their religious beliefs. Feeling outraged, Mr. Lee sued the bakery on the ground that the refusal to perform the contract amounted to a discriminatory conduct. In 2018, the Supreme Court ruled that there had been no discrimination, mainly because the bakers’ conduct was justified on the ground that a person cannot be forced to convey a message which is against his/her religious belief. If we stood stick to the tertium comparationis method, we should argue that the bakers’ conduct is discriminatory simply because they treat gays and people supporting gay marriage differently from the other customers; but if we overcome that approach, we may (though the answer is not so undisputed) conclude that the unequal treatment is justified by freedom of religion and is therefore reasonable and compliant with the general prohibition of discrimination.

Besides being helpful for marking the line between justified treatment and discrimination, the mentioned case is interesting because it demonstrates that the prohibition of discrimination, like the other fundamental principles, has a horizontal effect. According to the horizontal effect doctrine, developed by the Court of Justice,⁷⁰ individuals are entitled to rely on the direct effect rules contained in the Treaties conferring individual rights even in claims brought against another individual before a national court. This means that the violation of the prohibition at issue can be claimed by an individual even when it was perpetrated by another individual, rather than by the State.⁷¹

3.4 The Scope of the Prohibition of Contractual Discrimination

Given that the prohibition of discrimination is a limit to party autonomy, and more specifically to freedom of contract, scholars have always been reluctant in advocating its application to all contractual relationships, regardless of the type of contract and the qualities of the parties involved.

In particular, it has been often claimed that the scope of the prohibition should be restricted to contractual offers made to the public.⁷² This latter solution matches with the minimum threshold of protection imposed by European legislation, where Directive 2004/113 addresses the prohibition of unjustified direct and indirect discrimination on the grounds of sex in the access to and supply of goods and services to ‘all persons who provide goods and services, which are available to the public’ and are ‘offered outside the area of private and family life’, or the areas of media and education.⁷³

In support of the view that the prohibition at issue should apply only to offers to the public it is usually argued that only in those cases discrimination would be capable of undermining market efficiency and the fundamental right to personal dignity of the discriminated individuals, i.e. of those who have been excluded from the access to the goods and services offered. Moreover, it has been observed that an exception to the general principle that contractual choices are unquestionable would be justified only in offers to the public, because in that case discrimination would affect an entire class of people.

As to the first argument, it can be easily rebutted by observing that the foundation of non-discrimination principle does not lie in a mercantile logic such as the one advocated by the opinion at issue, as such a logic would be inconsistent with the constitutional values involved in the principle of equality. Human dignity is equally affected in discrimination through offers to the public and in discrimination through individual offers.

As to the second argument, one can object that the ‘mass effect’ of discrimination may be produced also in case of individual offers, whenever the offeror makes systematically discriminatory choices while negotiating with potential contracting parties. Furthermore, the refusal to conclude contracts with persons belonging to a certain category may hinder or even prevent access to goods and services, also in the case of individual negotiations.

As to the need of preserving freedom of contract, this goal must be reached regardless of the way in which the contract has been negotiated. The need to adjust the application of the prohibition at issue to accommodate it with freedom of contract should depend upon teleological and systematic evaluations and not merely upon a procedural approach focused on contract formation.⁷⁴ In other words, it cannot be upheld in absolute terms that non-discrimination only applies to offers to the public. It must be acknowledged that, within different practical contexts, the effect of the prohibition varies depending on the different status of the interests at play and the extent to which they are protected by the system.⁷⁵

The deeper the impact of a contract is on the personal sphere of the contracting parties, the wider should their margin of appreciation be. Such margin should be full when the pre-contractual negotiations pertain to the area of ‘private and family life’, such as in cases involving the lending of a holiday home to a member of the family or the rent of a room in a private residence.

Example

As an example of the first situation, one could mention, besides the already illustrated bakery case,⁷⁶ the owner of a private home who refuses to rent it to an unmarried woman with child on the grounds of the stereotype that women have lower income and therefore are not reliable payers.⁷⁷ The second situation would instead occur, for instance, if the contract of lease contained an express term prohibiting the subletting of the house to women.

Besides those cases, the guidelines for scaling the application of the non-discrimination principle should remain the ones above illustrated.

3.5 Possible Remedies for Contractual Discrimination

Discrimination may entitle the victim to different remedies. This would depend on the stage of the contractual relationship in which the unequal treatment took place and on whether such treatment consisted of the upstream refusal by one party to conclude the contract with the other or resulted in the provision of discriminatory terms⁷⁸ (see the example at the end of Sect. 15.3.4 above). When the discriminatory conduct takes place in the negotiations stage and results into the refusal by one of the parties to conclude the contract at all, or even to enter the precontractual dealings, the injunction to cease the discriminatory treatment may result into the obligation for the other party to negotiate the contract with the discriminated party. In case the other party fails to comply with such an obligation, damages would be awarded following the rules on precontractual liability. Damages will then be limited to the so-called ‘negative interest’ of the victim. Normally, they will cover the expenses made by the latter relying on the forthcoming conclusion of the contract and the chances that the victim has lost of engaging negotiations with other parties.

Dealing with precontractual discrimination, the most controversial issue concerning the possible remedies available to the victim is whether the latter is entitled to claim for specific performance, i.e. to obtain from the court a judgment producing the same effects as the contract which the other party has refused to conclude for discriminatory reasons.

Undoubtedly, such a remedy would grant the discriminated party a higher protection, as it would place such party in the same situation in which it would have found himself/herself had he/she not been discriminated against. The problem is that the remedy of specific performance can apply only when there is upstream an obligation to be performed. In the case at issue, the only obligation that arises from the negotiations is the one not to discriminate against the other party, while there is no obligation to conclude the contract. Such objection appears to be irrefutable and leads to exclude specific performance from the range of the possible remedies, unless there are special provisions imposing on certain parties an obligation to contract with all offerors.

The same result as specific performance could be reached, outside the area of contractual remedies, through the rules on tort liability and, namely, through the so-called compensation in kind. According to that rule, the victim is entitled to claim for the elimination of the damage or the replacement of the damaged good, instead of claiming for the monetary equivalent, provided that such activities are materially possible and, at least in some systems, not excessively burdensome for the tortfeasor.⁷⁹

Courts have not yet dealt with the issue, but the latter solution should be rejected as well, for several reasons.⁸⁰ First, compensation in kind is aimed at restoring the situation as it was prior to the loss suffered. When applied to discrimination cases, it would not simply restore the status quo ante but create a new legal relationship. Secondly, compensation in kind and the creation of a new legal relationship are effects that, procedurally speaking, follow from two different types of judgments: compensation is imposed through an order which needs to be enforced, whereas the creation of a new legal relationship is the automatic effect of a constitutive judgment.

Given the ability of constitutive judgments to interfere directly, without the intermediation of enforcement procedures, on private relationships, normally civil law courts have the power to issue them only in the cases expressly provided by the law.

Example

For instance, in Italy, the discriminated party could obtain a judgment standing for the contract that the other party has refused to conclude, when the gender-based discriminatory conduct is attributable to providers of services that are available to the public and are excluded from the scope of private and family life. In fact, Art. 28 of Decreto legislativo 25 July 1998 no 286, implementing the already mentioned Council Directive 2004/113/CE of 13 December 2004, provides the courts with the power to adopt ‘any measure that is adequate for removing the effects of discrimination’. In that case, however, constitutive relief is possible only to the extent that the goods or services are still available and the terms of the refused contract were sufficiently specific.

When, instead, the unequal treatment is laid down in the contractual regulation, like in the case of clauses through which one party undertakes the obligation not to negotiate and conclude contracts with people belonging to a certain gender or clauses that apply more onerous conditions to them, the first remedy available is the invalidity of the contract. The grounds for voidness are either the infringement of a mandatory provision, when the prohibition of discrimination is embodied in a specific legislative rule, or the inconsistency with public policy. In this case, equality of treatment is simply a general principle covered by the Constitution or other constitutional-ranked sources at the European level.⁸¹

In line with the general trend towards the prevalence of remedies that preserve the contractual bound over remedies that completely neutralise it, upheld by European legislation and shared by the legal traditions of the Member States,⁸² partial voidness will apply. Consequently, the discriminatory clauses will be severed from the contract, while the rest of it will remain unaffected. In case the clauses at issue were such as to apply more onerous conditions, they are likely not to be severed entirely but rather to be adjusted or supplemented by the competent courts so that their discriminatory effect is neutralised.

Example

Think of a clause contained in a lease contract that imposes on the lessee the prohibition of subletting the apartment to transgenders.⁸³ Such a clause would be declared void, on the grounds that it discriminates against contracting parties for their gender, and it would be entirely severed from the contract. The practical consequence of it is that the lessee would be free to sublet the apartment to whoever he/she wishes, including transgenders.

Example

In a Belgian case,⁸⁴ a transgender had been refused access to a tour of Jordan, run according to a room-sharing model, unless he agreed to pay an extra fee for a single room. The Belgian civil court found the contract discriminatory and therefore ordered the operator to enrol the claimant without the additional fee. Moreover, the Court awarded compensation to the transgender.⁸⁵

The remedy of voidness can be accumulated with the one of compensation, provided that the discriminated party succeeds in proving that it suffered some damages, whether patrimonial or personal, as a direct consequence of the unequal treatment. In order to discourage discrimination on a more general scale, the special rules adopted by some systems award to the victim punitive damages. In addition, in some cases, the victim is entitled to claim for an injunction through which the court orders the party to make the unequal treatment cease.⁸⁶

4 Other Areas of Gender-Sensitive Private Law

This section has been translated with the translation service of the University Research Institute for Sustainable Social Development (INDESS).

4.1 Gender Equality in the Field of Tort Liability

The effectiveness of the principle of equality requires a re-reading of tort law from a gender perspective. The question is whether gender roles and stereotypes are relevant for claims for damages and their insurance.⁸⁷ Our vision will focus on the current landscape of tort liability, which allows us to consider the recourse to traditional standards of diligence that attribute the ideal model of conduct to men as being superseded. This is the case of the rule of the “good father of the family” in civil law countries. Indeed, the diligence of the bonus pater familias is still in force in some legislations, such as the Spanish Civil Code, but the courts interpret it in the sense of “reasonable person”. In common law countries, the standard of care has been measured through the “reasonable man”, a rule that has later been transformed into the seemingly more inclusive “reasonable person standard”. This rule is an example of a supposedly neutral rule that was, in reality, permeated by the male perspective and notions of the masculine ideal.⁸⁸

The ultimate aim of tort law is that the tortfeasor compensates the person who has suffered damages. These damages can be pecuniary or non-pecuniary. In pecuniary damages, compensation includes the material losses suffered as a consequence of the harmful event, i.e., consequential damage and the profits lost due to the same, i.e., loss of earnings. Just as the compensation of consequential damage does not raise relevant questions from a gender perspective, the compensation of loss of earnings suggests certain aspects of interest worth reflecting on. Also, from the point of view of gender, it is interesting to analyse the compensation of non-pecuniary damage and the most relevant questions raised by the compensation of aesthetic damage.⁸⁹

4.1.1 Loss of Earnings for Loss of Wages or Other Professional Income

In general, loss of profit is considered the frustrated gain or profit not obtained due to a harmful act or omission. This item of damage consists of the increase in assets that, with a certain probability, was expected given the normal course of circumstances, The obtaining of which however, is frustrated as a consequence of the tortfeasor’s harmful act or omission. In regard to loss of profit, there are various questions and practical problems that arise.

First of all, there are difficulties related to the proof of the damage itself and its quantification. As a general rule, this difficulty tends to be more notorious in cases where it is the woman who suffers the effective loss of earnings as a result of the harmful event, insofar as it prevents her, either temporarily or permanently, from carrying out her activities. This is the case, for example, in cases where the victim of the harmful event carries out a productive activity but her remuneration is not fixed or stable. This circumstance, especially in the current situation of economic crisis, mainly affects the female population as it is women who, to a greater extent, suffer from the precariousness and temporary nature of the labour market. A negative factor when assessing loss of earnings due to loss of wages or other professional income.⁹⁰ The fundamental problem arises because the loss of earnings requires a judgement of probability as to the outcome so that there is relative certainty as to the gain that would have been obtained in the absence of damage. Thus, when the income from work or professional activity is not regular or is not subject to a fixed criterion, it will be difficult to prove the income that the woman ceased to obtain as a result of the harmful event. Undoubtedly, this difficulty in proving loss of earnings will affect, to a greater or lesser extent, the result of the claim for compensation.

A very similar situation arises in the case of domestic work or the employment relationship of domestic workers since in many countries, these services are very rarely standardised or regularised (“undeclared labour”).Thus, it would be quite complicated to prove the performance of such activities and the income derived from them. Hence, in the cases described above, the woman is at a clear disadvantage since the reparation of the financial consequences of the harmful event will almost always be incomplete.⁹¹

4.1.2 Compensation for Damages Suffered by Women Performing Unpaid Domestic Work

Traditionally, it has been women who have taken care of domestic tasks. The incorporation of women into the world of paid work has highlighted the replacement cost that this incorporation entails and the opportunity cost faced by those who decide to stay at home and take care of domestic work.⁹² When, for example, a woman who works exclusively at home, as a consequence of a certain accident, suffers significant bodily injuries that prevent her from carrying out her usual domestic activities, the question arises as to whether it is appropriate to compensate for the pecuniary damage caused (apart from the biological and psychological damage in itself considered). In these cases, there is a tendency to think that if the woman’s activity does not generate economic income, she does not suffer any pecuniary damage that should be compensated. However, for the victim, the fact of not being able to devote herself to the work she was doing in her home before suffering the injuries constitutes a loss that must be compensated.⁹³ Resolution 75-7 (Principle 5) of the Committee of Ministers of the Council of Europe, of 14 March 1975, has pronounced in this sense, stating that “for the victim, the fact of no longer being able to carry out the work he was doing in his home before the injurious event constitutes a loss which gives rise to the right to compensation, even if he has not been replaced by another person for this work”.

Therefore, even if the work of a housewife is not a productive activity in economic terms, it is nowadays accepted that the injured party is entitled to compensation for the pecuniary damage suffered, to the extent that the injuries prevent her, temporarily or permanently, from engaging in her usual occupation. The accident that leaves the housewife injured and unable to carry out her tasks entails the destruction of a workforce with a pecuniary value, regardless of whether or not actual expenditure has been made to replace those tasks. In the quantification of the damage, however, the salary of a person replacing the injured housewife may be used.

Example

A is a housewife who is seriously injured in a traffic accident and is therefore unable to carry out any domestic work for a considerable period. If A hires domestic help, the salary of the hired person will constitute a pecuniary loss. Even if A does not hire anyone and his family and friends take over the domestic chores, A will have suffered a pecuniary loss. A’s work had an economic value, and its interruption represents a compensable loss, which must be recognised.

Also, concerning the housewife, the question arises as to what the economic valuation of the damages should be if the victim, in addition to her dedication to work in the home, had effective possibilities of returning to work. Due to the tort attributable to a third party, suffers a situation of temporary or permanent incapacity, which not only prevents her from devoting herself to her usual activities, but also frustrates her professional reintegration. In these cases, the damage suffered cannot technically be classified as loss of earnings. Yet it should not be ignored that the harmful event causes damage insofar as it frustrates the possibilities of professional reintegration and, consequently, deprives the victim of the capacity to obtain earnings. In such cases, we are faced with what doctrine and case law described as “loss of opportunity”, which means the loss by the victim of an opportunity linked to a right or a specific expectation, which prevents the possibility of a future event that could be beneficial to him from taking place. Thus, the certainty of the loss of generating a profit constitutes a compensable pecuniary loss, provided that the necessary causal link between the harmful event and the lost opportunity is accredited, which must undoubtedly be assessed according to the specific circumstances of each case.⁹⁴

4.1.3 Compensation for Dependency Situations

There are other cases in which the woman is not the direct victim of the harmful event but suffers indirectly from its consequences. This is the case, for example, when a family member suffers serious bodily harm that results in a situation of dependency. Social reality shows that the care of the dependent person is usually carried out within the family, and it is the woman who, in most cases, assumes this vital role, dedicating her time and efforts to the care and attention of the family member.⁹⁵ Thus, it is mainly women who provide the “informal support” for the dependent person. Evidently, this circumstance has a negative impact on their prospects of accessing the labour market and prevents or at least makes it very difficult for women to continue to carry out their work or professional activity as they did before the injury, which leads to an inevitable loss or reduction in income.

In such cases, we are dealing with an indirect loss of earnings, since the woman loses her income, either due to the loss of her job or the necessary reduction in working hours or due to the neglect of her business, provided that it can be established that this circumstance derives from the demanding dedication involved in caring for the dependent person. In order to quantify this detriment to assets that are indirectly caused by the harmful event, it will be necessary to make a comparison between the assets situation that actually exists after the event and the situation that would foreseeably have existed if the event had not occurred.

However, if, in general, the proof of loss of earnings is subject to restrictive criteria, there is no doubt that in the case of indirect loss of earnings, the courts tend to be even more demanding when assessing whether the causal link that must necessarily exist between the loss of earnings and the damaging event that caused it is accredited or not.⁹⁶

4.1.4 Non-pecuniary Damage

In addition to the purely pecuniary damage, another type of damage can occur that derives fundamentally from the injury to the personality rights: the so-called moral damage. Its main function is to compensate for the physical or psychological damage that the victim suffers as a consequence of the loss or deterioration of any of his essential goods or rights (life, bodily or mental integrity, dignity, liberty and honour, among others). The aim is to compensate for physical or psychological harm that affects the basic goods and rights of the person considered in itself, regardless of its link to gender. In this sense, the case of Carvalho Pinto de Sousa Morais v. Portugal, 25 July 2017⁹⁷ is relevant, in which the national court had reduced the compensation awarded to a 50-year-old woman who, following failed surgery, was unable to have sexual intercourse, partly on the basis of age and gender stereotypes. In particular, the court based its reasoning on the fact that the claimant, due to her age, was no longer sexually active.⁹⁸ The ECtHR highlights “the contrast between the applicant’s case and the approach taken in two judgments which concerned allegations of medical malpractice by two male patients who were fifty-five and fifty-nine years old respectively”. As stated in the judgment, “the Supreme Court of Justice found in those cases that the fact that the men were no longer able to have normal sexual relations had affected their self-esteem and caused “tremendous shock” and “strong mental shock”.” and “severe mental trauma”. The ECtHR emphasises that “the domestic courts took into consideration the fact that the men could not have sexual relations and how that had affected them, regardless of their age”. Contrary to the applicant’s case, “the Supreme Court of Justice did not take into account whether the plaintiffs already had children or not, or look at any other factors”. The ECtHR decided that the Supreme Administrative Court’s reasoning led to a difference of treatment of the applicant based on her sex and age, amounting to a breach of Article 14 in conjunction with Article 8.

However, this does not prevent that in certain cases, due to the nature of the property or right injured, the victim of non-pecuniary damage is much more frequently a woman. This occurs, for example, in cases of violence against women, aggression against sexual freedom and, in general, in all those cases in which a woman’s dignity is harmed, such as when she suffers discriminatory treatment because of her gender (for example, rape, forced prostitution, forced conception or abortion, genital mutilation, sexual harassment or unwanted touching, among others).

In another order of things, but also within the category of non-pecuniary damage, reference must be made to a personal injury of singular importance: aesthetic damage. In general, this type of damage is identified with the physical irregularity or external, visible and permanent bodily alteration that pejoratively alters the person’s external appearance. Moreover, there is no doubt that the modification of that external appearance due to defects or bodily sequelae has harmful consequences, to a greater or lesser extent, for the person who suffers them. Concerning the aesthetic damage, it is debatable whether the sex of the injured person should be taken into account as a parameter for measuring the intensity of the aesthetic damage. Some argue that sex should not be excluded as an additional element that could be considered when assessing the incidence and intensity of the aesthetic harm in each case. To this end, it is argued that there are surely some sequelae that cause more significant harm to a woman than to a man, and others that have a more negative effect on the image of a man than on that of a woman. It is not a question of introducing a discriminatory factor to favour victims of a particular sex, but rather of the judicial body being able to weigh up all the circumstances that influence the specific case when assessing and adequately measuring the true extent of the aesthetic damage caused to the person who suffers it. This happens, for example, in cases of injuries and sequelae that affect the image of the person as a consequence of undergoing cosmetic surgery treatments and operations. Precisely, in this area of non-medical or non-curative medicine, case law shows that the victims of injuries are mainly women. Although in recent years there have been more and more men, the after-effects have, in many cases, an important anti-aesthetic impact, which the courts usually take into consideration when weighing up all the data that determine the intensity of the aesthetic damage.⁹⁹

4.2 Compensation for Damages as a Legal Remedy for the Victim of Gender-Based Discrimination in the Provision of Goods and Services

This section will deal with damages as a legal remedy that the law makes available to the victim of gender discrimination, in the field of the supply of goods and services. Article 8.2 of Directive 2004/113/EC of 13 December 2004 implementing the principle of equal treatment between men and women in the access to and supply of goods and services imposes on the Member States the obligation to introduce

“such measures as are necessary to ensure real and effective compensation or reparation, as the Member States so determine, for the loss and damage sustained by a person injured as a result of discrimination within the meaning of this Directive, in a way which is dissuasive and proportionate to the damage suffered” and that “the fixing of a prior upper limit shall not restrict such compensation or reparation”.

This is an action for compensation available to the victim of discrimination in the field of the supply of goods and services to claim compensation for the damage actually suffered as a result of discrimination, whether direct or indirect, on the grounds of sex. It is not only a matter of ensuring the indemnity of the victim of gender discrimination, but the ultimate aim must be to deter future discriminatory conduct.

As far as the criterion of imputation is concerned, this is a purely objective liability, as the rule does not require the discriminating person to have the intention to discriminate, nor that the discriminatory conduct be culpable. It is only necessary for a situation to arise in which, directly or indirectly, there is discriminatory treatment on the grounds of sex. In any case, the obligation to compensate will only arise if there is damage as a consequence of the discriminatory conduct, as this is an essential element for the application of the rules on civil liability. As to the content and scope of compensation, it is clear that all damages actually suffered by the victim of discrimination are compensable, both pecuniary damages and non-pecuniary or non-pecuniary damages, although the latter are the most characteristic of this type of situation. Although both must be proven, there is no doubt that the burden of proof is more rigorous when compensation is sought for the pecuniary damages actually caused by the discriminatory conduct or practice. When it comes to compensation for non-pecuniary damage, which tends to occur in most discrimination cases, the most complicated issue for the judicial body is the quantification of this damage (for example, it is difficult to assess the psychological harm caused as a result of discriminatory conduct).

This balancing test must enable the court to award the victim compensation that is, in any event, proportionate to the harm suffered. Under the case-law of the ECJ, such proportionality is interpreted as meaning that the compensation awarded to the injured party as a result of the discrimination must, in any event, be adequate so as to ensure that the victim is guaranteed compensation, which makes it possible to make full reparation for the damage actually suffered.¹⁰⁰ Moreover, Member States are prohibited from limiting, a priori, the maximum amount of compensation to which the person discriminated against would be entitled. The judge or competent authority may fix the amount of compensation without having to take into account tables or scales. Consequently, the victim of discriminatory conduct has the possibility to bring an action for compensation for all the damage he or she has actually suffered as a result of the unlawful conduct.

4.3 The Use of Sex as a Factor in the Calculation of Premiums for the Purposes of Insurance

When taking out insurance policies, insurance companies usually set premiums based on, among other things, the sex of the insured. This is a statistical differentiation, as gender is used as an indicator of the probability that the risk being insured against will be realised. Insofar as statistics show that women in Europe live on average 5.5 years longer than men (2018 data),¹⁰¹ that women generate more medical expenses and that more men drivers than women are involved in road accidents, women pay higher premiums for health and survival insurance, and men pay higher premiums for premature death insurance and compulsory motor insurance.¹⁰² The Proposal for a Council Directive 2003/0265 implementing the principle of equal treatment between women and men in the access to and supply of goods and services provided for an absolute ban on the use of sex as a factor in the calculation of premiums and benefits in insurance and equivalent financial services. In response to the critical reaction from the insurance market and some Member States, the final version of Directive 2004/113/EC empowers Member State governments to permit proportionate differences in individuals’ premiums where the use of sex is a determining factor, and to inform the Commission thereof (Art. 5.2). To ensure that differentiation is not arbitrary, it uses sex as a conditional calculation factor based on relevant and accurate actuarial and statistical data. It also sets another limit, which consists of prohibiting costs related to pregnancy and maternity from leading to an increase in the premiums paid by women (Art. 5.3). Finally, the Court of Justice of the European Union has declared that Article 5(2) of Directive 2004/113 is invalid, with effect from 21 December 2012, because it is contrary to the objective of equal treatment between women and men as set out in Directive 2004/113.¹⁰³

5 Conclusion

It seems indisputable that on a global level a lot has been done to prevent and eliminate gender inequality, especially in the last decades. As explained, most legal systems today do not contain legal norms which would prima facie be accountable as a source of gender inequality. Furthermore, prohibition of discrimination is even explicitly guaranteed by the constitutions and laws of many countries. However, despite the satisfactory legal framework for achieving gender equality, certain life circumstances and social factors may still induce gender inequality. Having this in mind, it seems that the road to gender equality in the field of private law goes beyond the mere adoption of legal rules. Legal systems need to ensure the application of such legal rules. Moreover, legal systems should find a way to promote gender equality in all areas of life and try to change the stereotypical way of thinking and the division of men’s and women’s jobs and responsibilities: for instance, men should be encouraged to take parental leave; men and women should be equally paid for the same job; women entrepreneurship should be encouraged, etc. Such actions could, in general, create a solid ground for a better financial position of women, an increase in their assets, a better creditworthiness, a better position in case of divorce, and an overall higher degree of independence—which may have a huge influence on the freedom of women to use the rights guaranteed by law, as well. In line with this, efforts should also be made that the housekeeping, childcare and other caring responsibilities be valued in a more adequate way, throughout the whole private law regulations, bearing in mind that it impacts women’s (as the most usual caring person) ability to generate income, women’s position in marital or extramarital union, women’s position in case of any damage suffered and the like. Finally, it seems important to mention that some principles of private law may interfere with the idea of achieving absolute gender equality. This is especially the case with parties’ freedom of contract and the solution lies in finding the right criteria for making a distinction between the concepts of (seemingly) unequal treatment, which should be allowed, and discrimination, which should be avoided and sanctioned.

Questions

• 1. Do legal rules in your legal system or their application (or the lack of application) create legal grounds for gender inequality when it comes to the legal capacity of men and women?

• 2. What kind of marital regime is implemented in your legal system and how does it affect spouses’ ownership and control of property acquired during marriage (acquisition and division)?

• 3. If one spouse invests jointly owned property into a company, what may the other spouse claim?

• 4. Under what conditions unequal treatment of individuals belonging to different genders can be qualified as discrimination?

• 5. Does the prohibition of discrimination apply outside the area of contracts made through offers to the public?

• 6. What are the possible forms of gender-based contractual discrimination and their remedies?

• 7. Based on the regulations on civil liability in your legal system, determine whether it uses standards of care that attribute to men the ideal model of conduct (such as the rules of the “good father of the family” or “the reasonable man”).

• 8. As a result of an accident, a woman who works exclusively in her home suffers a significant bodily injury that prevents her from carrying out her normal domestic activities. Is compensation payable in respect of the pecuniary damage caused?

• 9. Is compensation for non-pecuniary damage, which is intended to compensate for the physical or psychological harm that the victim suffers due to the loss or impairment of any of his or her essential goods or rights linked to gender?

• 10. When taking out insurance, can insurance companies set premiums based on the sex of the insured?