Love as a Disadvantage in Law
| Author | Renata Grossi |
| Date | 01 June 2018 |
| Published date | 01 June 2018 |
| DOI | http://doi.org/10.1111/jols.12086 |
JOURNAL OF LAW AND SOCIETY
VOLUME 45, NUMBER 2, JUNE 2018
ISSN: 0263-323X, pp. 205±25
Love as a Disadvantage in Law
Renata Grossi*
Love is not often the explicit subject of legal discussion but when it is,
it appears as a negative phenomenon that leads us to make bad deci-
sions. This view of love is amplified in the context of commercial and
economic transactions, where love, intimacy, and economic exchange
are seen as operating under opposing principles. This article questions
the accuracy and efficiency of law when it operates under both of these
assumptions, and argues for a view that resonates more closely with
the more realistic and complex relationship that exists between love
and economic exchanges.
INTRODUCTION
Save your advice 'cause I won't hear
You might be right but I don't care
There's a million reasons why I should give you up
But the heart wants what it wants.
1
The heart wants what it wants. There's no logic to those things. You meet
someone and you fall in love and that's that.
2
This article is about the relationship between law, love, and commercial
transactions. In the early 1990s case of Louth v. Diprose,
3
the High Court of
Australia set aside a transfer of property on the grounds that it was uncon-
205
*Faculty of Law, University of Technology Sydney, PO Box 123, Broadway
NSW 2007, Australia
Renata.Grossi@uts.edu.au
I would like to thank the editors and the anonymous referees for their valuable comments
and suggestions.
1Selena Gomez lyrics, `The Heart Wants What it Wants' (2014).
2Woody Allen describing his relationship with Soon-Yi. W. Isaacson, `The Heart
Wants What It Wants' Time Magazine, 24 June 2001, at
time/magazine/article/0,9171,160439,00.html>.
3Louth v. Diprose (1992) 175 CLR 621. See, also, Diprose v. Louth (No. 1) (1990) 54
SASR 438 and Diprose v. Louth (No. 2) (1990) 54 SASR 450.
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scionable because it was transacted while the plaintiff was acting under a
special disadvantage ± love.
4
In reaching this conclusion the court affirmed
two views: first, that love can potentially be a dangerous infliction likely to
distort our ability to make rational decisions; second, that economic
transactions must be the subject of rational decision making motivated by
market forces of self-interest and adequate returns, and not romantic love.
And yet in this article we will meet three men who willingly, and even in a
calculated manner lavished gifts, money, and property on the women they
loved in the hope that they would love them back. Such behaviour is not
unusual. One need only consider the phenomenon of love scams, ever
present in the news, to see how prevalent money can be either as an
inducement for love, or as an expression of it.
5
Furthermore, as I will show,
romantic love, rather than being considered a disadvantage, an affliction,
something to be wary of in life, is more often understood in our culture as a
positive life goal that leads to happiness and fulfilment.
There appears therefore to be a dissonance between the approach the
courts take in such cases and common views and practices that exist in our
culture. Before turning to question this, this article will discuss the import-
ance of the discourse of law and love and emotion for legal theory and legal
practice. It will then turn to the way in which love has been considered in the
206
4Equity will give relief where one party has exploited another. See Commercial Bank
of Australia v. Amadio (1983) 151 CLR 447; Blomley v. Ryan (1956) 99 CLR 362.
5In 2015 the Australian Competition and Consumer Commission (ACCC) reported
that `Australians lose $75,000 every day to romance scams': see
www.accc.gov.au/media-release/australians-lose-75000-every-day-to-romance-
scams>. This is not a uniquely Australian experience. In February 2016 the
Telegraph reported that there were 3,363 reported cases of dating fraud in the United
Kingdom in 2015, and the sums lost amounted to £24m: see ://
www.telegraph.co.uk/finance/personalfinance/12148131/Dating-scams-on-the-rise-
A-fraudster-conned-me-out-of-thousands.html>. Such scams typically involve an
online relationship. Once the `victim' believes him or herself to be in love and in a
relationship, the `scammer' will then ask for money for a business opportunity, a
medical expense or a family crisis of some sort. People scammed are typically
between the ages of 45±55. Men and women are equally susceptible, but men part
with 60 per cent of the money lost to the scams. Victims are often reported as being:
at a very vulnerable point in their lives. They may have been divorced, they may
have been widowed, or the kids may have left home. They're lonely and they've
[sic] looking for a meaningful relationship.
T. Osborne, `Online romance scammers reap millions and often turn to blackmail,
ACCC says', ABC News on-line, 13 February 2015, at
news/2015-02-13/online-romance-scammers-reap-12-million-from-canberrans/
6091952>. However, cyber psychologist Monica Whitty's study on love scams has
found that while isolation and loneliness are major causes of people falling for them,
the most vulnerable are those people who believe in true love: Whitty, quoted in J.
Power, `ACCC Scamwatch: victims of romance fraud scammers mainly men'
Sydney Morning Herald, 6 December 2014, at
consumer-security/accc-scamwatch-victims-of-romance-fraud-scammers-mainly-
men-20141204-12044a.html>.
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legal doctrine of unconscionability and follow the legal application of the
`love as a disadvantage' idea in Louth v. Diprose,Da Yun Xu v. Fang Lin,
and in MacKintosh v. Johnston. The discussion will show that courts (albeit
decreasingly so) have traditionally engaged in a discussion that sees love as a
disadvantage, opposed to reason, and therefore opposed to rational economic
behaviour. Finally, the article will turn to challenge these assertions by
examining whether love is understood in philosophical and sociological
discourse as a disadvantage, and whether love and economic exchange are
truly separate from each other.
LAW, EMOTION, AND LOVE ± WHY?
Love is not a common subject for law, but it is an important one for a
number of reasons. Love is a central discourse in western societies; this
alone not only requires, but demands that law interacts with it. As I have
argued elsewhere,
6
law that does not engage with emotions does society a
disservice. Thinking about law within an emotional framework engages
law with the community, better understanding it, and better delivering it
justice.
In recent decades legal scholars have worked to show the effect of
emotions on different legal actors such as judges,
7
juries,
8
lawyers,
9
and
witnesses and victims.
10
Many have explored emotions in different legal
contexts, such as in criminal law,
11
family law,
12
contract law,
13
domestic
207
6For a more thorough discussion of the importance of the relationship between law
and love, see Peter Goodrich's scholarship referenced throughout the article. See,
also, R. Grossi, Looking for Love in the Legal Discourse of Marriage (2014).
7See N.R. Feigenson, `Sympathy and Legal Judgement: a Psychological Analysis'
(1997) 65 Tennessee Law Rev. 1; L. Little, `Adjudication and Emotion' (2002) 3
Florida Coastal Law J. 205; M. Nussbaum, `Emotion in the Language of Judging'
(1996) 70 St John's Law Rev. 23.
8K.S. Douglas et al., `The Impact of Graphic Photographic Evidence on Mock Jurors'
Decisions in a Murder Trial: Probative or Prejudicial?' (1997) 21 Law and Human
Behaviour 489; B.S. Myers et al., `Victim Impact Testimony and Juror Judgements:
The Effects of Harm Information and Witness Demeanour' (2002) 32 J. of Applied
Social Psychology 2393.
9 S. Bandes, `Repression and Denial in Criminal Lawyering' (2006) 9 Buffalo
Criminal Law Rev. 339.
10 S. Bandes, `Empathy, Narrative and Victim Impact Statements' (1996) 63
University of Chicago Law Rev. 361.
11 M. Nussbaum and D. Kahan, `Two Conceptions of Emotion in Criminal Law'
(1996) 96 Columbia Law Rev. 269.
12C. Huntington, `Repairing Family Law' (2008) 57 Duke Law J. 1244.
13H. Keren, `Considering Affective Consideration' (2010) 40 Golden Gate University
Law Rev. 165.
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violence law,
14
and sexual harassment law.
15
The scholarship has isolated
the existence of specific emotions in law, for example, fear,
16
disgust,
17
shaming,
18
empathy,
19
mercy,
20
love,
21
and hope.
22
This body of work has
been more than illustrative; it has had important consequences for our
understanding not only of human action but also of the application of the law
to it.
When law engages with emotion it fulfils a further goal ± it participates in
the enterprise of recognizing and legitimating the role that emotion plays in
human interactions. For a significant period in human history there has
existed a view that reason and emotion are separate from one another and,
importantly, that the former is to be favoured over the latter. This opposition
can be traced back to ancient Greek philosophers. While Plato saw emotions
as obstructions to the attainment of our true rational selves,
23
Aristotle
believed that a true understanding of the world around us could not be
achieved without reference to our emotions.
24
At the heart of the debate lies
the question of how we understand emotions themselves. The dominant view
has been that emotion should be relegated away from the important sphere of
public discourse on the grounds that it is chaotic and unpredictable and can
therefore too easily lead us into error.
25
This view has been challenged by
208
14M. Becker, `The Passions of Battered Women: Cognitive Links Between Passion
Empathy and Power' (2002) 8 William & Mary J. of Women and the Law 1; N.
Seuffert, `Domestic Violence, Discourses of Romantic Love, and Complex
Personhood in the Law' (1999) 23 Melbourne University Law Rev. 211.
15P. Goodrich, `The Laws of Love: Literature, History and the Governance of Kissing'
(1998) 24 New York University Rev. of Law & Social Change 183.
16S. Bandes, `Fear Factor: The Role of Media in Covering and Shaping the Death
Penalty' (2004) 1 Ohio State J. of Criminal Law 585.
17M. Nussbaum, ```Secret Sewers of Vice'': Disgust, Bodies and the Law' and D.
Kahan, `The Progressive Appropriation of Disgust in Law', both in The Passions of
Law, ed. S. Bandes (1999).
18T. Massaro, `Shame Culture and American Criminal Law' (1991) 89 Michigan Law
Rev. 1880.
19L. Henderson, `Legality and Empathy' (1987) 85 Michigan Law Rev. 1574.
20 J.G. Murphy and J. Hampton, Forgiveness and Mercy (1988); M. Nussbaum,
`Equity and Mercy' (1993) 22 Philosophy and Public Affairs 83.
21P. Goodrich, Law in the Courts of Love: Literature and Other Minor Jurisprudences
(1996); Goodrich, op. cit., n. 15; P. Goodrich, `Erotic Melancholia: Law Literature,
and Love' (2002) 14 Law & Literature 103; P. Goodrich, The Laws of Love: a Brief
Historical and Practical Manual (2006); Seuffert, op. cit., n. 14; H. Peterson,
`Informal Law and/of Love in the European Community' in Home Knitted Law:
Norms and Values in Gendered Rule-making, ed. H. Peterson (1996) 144.
22K. Abrams and H. Keren, `Law in the Cultivation of Hope (2007) 95 California Law
Rev. 319.
23See, in particular, Phaedrus in Stanford Encyclopaedia of Philosophy, at
plato.stanford.edu/entries/plato-friendship/>.
24Aristotle, The Nicomachean Ethics, tr. H. Rackman (1982).
25That emotion is to be kept separate to law is an underpinning to our understanding of
law. As Robin West puts it, most legal scholars have `accorded too small a role to
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arguments that emotions are expressions of our knowledge, ethics, and value
systems, and instruments that fine tune our thinking and help us to make
`rational' choices.
26
An acceptance of this view of emotions makes them an
integral part of public decision making, including law.
Finally, as I have argued elsewhere, recognizing that law engages with
emotions constitutes part of a greater critical jurisprudence project.
27
While
positivism (with its rejection of common law and natural law theory) bars
emotion from law, critical jurisprudence (with its rejection of unifying
narratives, its focus on identity, and its rejection of objectivity) makes room for
it. Explicitly, critical jurisprudence also makes room for emotion by focusing
on the subject of law, and the importance of identity based on sex, gender, race,
and sexuality.
28
Related to this is critical jurisprudence's use of the
methodology of storytelling,
29
a method that demands that law engages with
the way its processes impact upon `existing social and legal arrangements and
actual human behaviour'.
30
Similarly, feminism's general project of making
women's experiences central, rather than marginal, to the way law thinks and
acts, has been essential to the development of an emotional point of view in
law, if nothing else, by virtue of the long association of women with emotion.
31
209
emotion, to the creation, the imagining, the generation, the interpretation, and the
reception of law': R. West, `Law's Emotions' (2016) 19 Richmond J. of Law and the
Public Interest 339, at 340. In the context of adjudication, it is particularly
pronounced with Terry Maroney describing it as a `persistent cultural script': T.A.
Maroney, `The Persistent Cultural Script of Judicial Dispassion' (2011) 99
California Law Rev. 629.
26J.M. Barbalet, Emotion, Social Theory, and Social Structure: a Macrosociological
Approach (1998); C. Calhoun and R. Solomon, What is an Emotion? Classical
Readings in Philosophical Psychology (1984); P.A. French and H.K. Wettstein
(eds.), The Philosophy of Emotions (1998); E. Dylan, Emotion: The Science of
Sentiment (2001); K. Oatley and J.M. Jenkins, Understanding Emotions (1996).
27 By critical jurisprudence I mean the schools of critical legal studies (CLS),
feminisms, critical race theory (CRT), and queer theory, all of which can to some
extent be characterized as postmodern. Critical jurisprudence can also include more
general approaches to the study of law such as law and society, law and literature,
and of course, law and emotion.
28 J.M. Balkin, `Understanding Legal Understanding: The Legal Subject and the
Problem of Legal Coherence' (1993) 103 Yale Law J. 105; Barbalet, op. cit., n. 26,
pp. 11±12.
29T. Massaro describes storytelling in law as both a `call to context' and a demand for
more individualized justice, a method that implies that all voices are equal, and that
diversity of voices is of `paramount' political importance. The method, he says,
embodies a number of demands that resonate throughout the legal system, from the
lawyer-client relationship to law teaching, to the work of judges and courts. For
Massaro, storytelling is inextricably entwined with empathy; however, it is difficult
to extricate storytelling from emotion generally: T.M. Massaro, `Empathy, Legal
Storytelling, and the Rule of Law: New Words Old Wounds?' (1989) 87 Michigan
Law Rev. 2099.
30id., p. 2125.
31S. Mendus, Feminism and Emotion: Readings in Moral and Political Philosophy
(2000).
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But even more explicitly, the importance of law and emotion to the feminist
project in law can be exemplified by the central idea in feminism that the
personal is political. This has led to scholarship which has brought the private
sphere, laden with emotional content, into public focus.
32
This article forms part of the law and emotion, and law and love con-
versation. By foregrounding the meaning of love that is adopted in the
doctrine of unconscionability, and by making this meaning accountable to
other discourses of romantic love that coexist within our society and culture,
this article follows the aims of the critical scholarship outlined above.
LOVE AS A DISADVANTAGE IN THE LAW OF
UNCONSCIONABILITY
1. Louth v. Diprose ± unrequited love
That love is a disadvantage that requires the courts to step in via the
equitable doctrine of unconscionability was established in the Australian
High Court case of Louth v. Diprose in 1992.
Louis Diprose fell in love with Mary Louth. They met at a party, he was
divorced with three children, and she was married with two children. Her
marriage was rocky and ended shortly after. The two became friendly and
began a relationship. In 1982 Ms Louth decided to move to Adelaide to be
close to family support. Mr Diprose did not want her to go and asked her to
marry him, but she refused the offer of marriage and moved as planned. In
1983 Diprose decided to follow her there. Louth did not encourage this, and
told him that she would only see him occasionally, and maybe `sleep' with
him, but only if he didn't `hassle' her, and only on the understanding that
there be no commitment between them. She had told him that she never
wanted to care for anyone again. They telephoned and saw each other from
time to time. Diprose would visit and give her gifts: some jewellery, a
television, a dishwashing machine, a twin-tub washing machine. He would
also at times pay her bills, including her children's school fees, and
ultimately, he bought her a house. This house became the subject of sub-
sequent litigation. However, at the time, Diprose stated that he meant to give
her the house outright to give her peace of mind and make her happy. On the
day of settlement Diprose wrote Louth a letter which stated `I confirm that
210
32See, for example, R. Kaspiew, `Rape Lore: Legal Narrative and Sexual Violence'
(1995±96) 20 Melbourne University Law Rev. 381. For further discussion on law
and emotion scholarship, see K. Abrams and H. Keren, `Who's Afraid of Law and
the Emotions?' (2010) 94 Minnesota Law Rev. 1997; T.A. Maroney, `Law and
Human Emotion: A Proposed Taxonomy of an Emerging Field' (2006) 30 Law and
Human Behavior 119, at 125; R. Grossi, `Understanding Law and Emotion' (2015) 7
Emotion Rev. 55.
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settlement of the property was effected today. You are now the proud owner
of the same.'
33
In 1986 Diprose made a will where the house was not listed
among his assets.
Diprose did not only show his love materially, he also wrote many poems
about his feelings for Louth: he called them `The Mary Poems'. Chief Justice
King described the poems as `tender, often sentimental, sometimes pas-
sionate, and very often based on the theme of unrequited love.'
34
We can say
therefore that Louis Diprose was under no illusions that his love was
unreturned.
In 1988, following a quarrel with Louth, Diprose began to claim that the
house was his and she should legally transfer it back to him, and start paying
some rent. He subsequently began legal action to have the house transferred
to him. He succeeded on the grounds of unconscionability.
While this article is not a doctrinal discussion of the law of uncon-
scionability in itself, it is important to outline briefly the legal principles at
play here. The law of unconscionability in Australia will set aside an
unfavourable transaction if it can be shown that one party has taken advan-
tage of another. Commercial Bank of Australia v. Amadio established that
the following must be evidenced for the case to succeed:
·that a party to a transaction was acting under a `special disability';
·that this disability was evident to the other party;
·that the party who benefitted from the transaction cannot show that the
transaction was (notwithstanding the existence of the disability) fair, just,
and reasonable.
35
The doctrine of unconscionability must be distinguished from undue influ-
ence where a relationship between two contracting parties may lead to one of
them exerting their influence over the other.
36
While undue influence is
more concerned with the relationship between the parties, in the case of
unconscionability, a special disability or disadvantage must be shown.
Blomley v. Ryan left the list of possible disabilities open.
37
It is important to
note here that such cases are dealt with differently in England and Wales
where the law of unconscionability is largely subsumed by the law of undue
influence.
38
The element of disadvantage found in Louth v Diprose was the fact that
Louis Diprose was in love with Mary Louth. CJ King said that:
there is no doubt in my mind that a relationship existed between the plaintiff
and the defendant which placed the plaintiff in a position of emotional
211
33 Diprose v. Louth (No. 1), op. cit., n. 3, p. 441.
34id., p. 439.
35Deane J, Commercial Bank of Australia v. Amadio, op. cit., n. 4.
36See Johnson v. Buttress (1936) CLR 113. See, also, Barclays Bank plc v. O'Brien
37 Blomely v. Ryan, op. cit., n. 4.
38For a discussion of the differences between the United Kingdom and Australia, see
P. Finn, `Common Law Divergences' (2013) Melbourne University Law Rev. 509.
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dependence upon the defendant and gave her a position of great influence on
his actions and decisions. From the time they first met he was utterly
infatuated by her . . . he knew he had . . . `an enormous weakness' for her. His
willingness to devote himself to her and to lavish her with gifts,
notwithstanding that she did not return his love, is quite pathetic.
39
This view was affirmed by the court in the two subsequent cases. In the
decision of the Full Court of the Supreme Court of South Australia, ACJ
Jacobs said that he was in no doubt that Diprose was at all times `infatuated'
by Louth, and that it `might well be true to say that the respondent was
emotionally dependent upon the appellant, and enslaved by his emotional
dependence.'
40
He said that, while Diprose's eyes may have been sub-
sequently opened, `his vision was blinkered by his infatuation'.
41
The High
Court agreed. CJ Mason said that there was no basis for disturbing the
finding that Diprose was in a position of `emotional dependence'.
42
His love
therefore was seen as a source for being dependent, blinkered, enslaved,
pathetic, and weak. His love seen through this prism is interpreted as
rendering him incapable of making `rational' economic decisions in his
dealings with Louth.
The opportunity to revisit the question of whether love constitutes a
special disadvantage came before the courts in 2005 in the case of Da Yun
Xu v. Fang Lin and in 2013 in the case of MacKintosh v. Johnson.
43
Both of
these cases involved a man buying a house for a woman with who he was in
an intimate relationship, who subsequently attempted to have the transaction
reversed on the grounds of unconscionability. Both cases relied on the
precedent set in Louth v. Diprose. While neither of these cases are High
Court cases, they have been taken to signify a retreat of the doctrine of
unconscionability generally, and more specifically from the idea that love
can constitute a special disadvantage.
44
212
39 Diprose v. Louth (No. 1), op. cit., n. 3, p. 447. It needs to be noted here that the facts
of this case would support a case of stalking and harassment; the court, however,
interpreted Diprose's actions as acts of love. For an alternative reading of the facts,
Lisa Sarmas has argued that the judge here adopted and reinforced the stereotypical
view of a woman as either manipulative or manipulated: see L. Sarmas, `Storytelling
and the Law: A Case Study of Louth v Diprose' (1994) 19 Melbourne University
Law Rev. 701; L. Sarmas, `Uncovering Issues of Sexual Violence in Equity and
Trusts Law' (1995) 6 Legal Education Rev. 207; S. Hepburn, `Equity and
Infatuation,' (1993) 18 Alternative Law J. 208.
40 Diprose v. Louth (No. 2), op. cit., n. 3, p. 452.
41id., p. 453.
42 Louth v. Diprose, op. cit., n. 3, Mason CJ at para. 9.
43 MacKintosh v. Johnson [2013] VSCA 10, at
viewdoc/au/cases/vic/VSCA/2013/10.html>.
44 See D. Thampapillai, `What becomes of the broken-hearted? Unconscionable
conduct, emotional dependence, and the ``clouded judgment'' cases' (2016) 34 Law
in Context 76; W. Swain, `The unconscionable dealing doctrine in retreat?' (2014)
31 J. of Contract Law 255; R. Bigwood, `Still Curbing Unconscionability; Kakavas
in the High Court' (2013) 37 Melbourne University Law Rev. 463.
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2. Da Yun Xu v. Fang Lin ± You can buy love!
Da Yun Xu v. Fang Lin involved a relationship between a sex-worker (Fang
Lin, 31 years of age) and one of her clients (Da Yun Xun, 57 years of age).
The two had been in a relationship since 1997 but it had always been non-
exclusive and of a commercial nature. Fang Lin continued to see other
clients, Da Yun Xun was married for a time and also frequented other sex-
workers. The relationship however did extend beyond the brothel. On a
number of occasions they had sex in the defendant's home, they also had
some outings, and one overnight trip together. These occasions always
involved the exchange of money, and or gifts.
On one occasion Da Yun Xu had given Fang Lin a card which stated, `In
you, I've found the love of my life and the closest, truest friend of my heart.
Happy Anniversary.' When the card had been given to Fang Lin she wrote in
it, `[t]ill death shall part us and our hearts will always remain as one. Still
want to marry you. From the person who loves you the most.'
45
Da Yun Xu sold his house to Fang Lin but never sought any of the
purchase price. The transaction was effected in the presence of lawyers
representing each of the parties. Da Yun Xu gave evidence that he gave Fang
Lin the house (along with the other gifts) in order to earn her love and
affection and in the hope that they would live together and have a
relationship.
Q: Would you agree that throughout the time that you have known the
defendant you have been very generous with her ± with money and gifts to
her?
A: Yes.
Q: Would you agree that this was a way ± the giving of the gifts and money ± a
way of expressing your love to the defendant and to encourage a greater
interest in you?
A: Yes.
Q: And Mr Xu when it came to selling your property at Chatswood to the
defendant, that was also a way of expressing your love and affection for the
defendant?
A: Yes.
46
The court found that Mr Xu was fully informed of the market value of his
property, he sold it to Ms Lin on those advantageous terms because he
wanted to `ingratiate himself with her',
47
to earn her affection, her love. The
court did not find, however, that this constituted a disadvantage capable of
giving rise to the doctrine of unconscionability or undue influence; the
transaction therefore remained intact.
213
45 Da Yun Xu v. Fang Li [2005] NSWSC 569, at
viewdoc/au/cases/nsw/NSWSC/2005/569.html>, para. 5.
46id., para 16.
47id., para. 32.
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The court found that their relationship was commercial in nature, it did
not go beyond sex-worker and client, and they were not exclusively
committed to one another. While Mr Xu wished it to be more, it was no more
than a wish; Ms Lin's expression of affection to Mr Xu was part of the
service that she provided. Barrett J said, `I accept that the defendant
complied with the request of the plaintiff to express love for and an intention
to marry the plaintiff even though she did not have those feelings. It was part
of the service she provided.'
48
The court distinguished this case from Louth v. Diprose on the grounds
that there was no dependence between the parties, that they were operating
on an equal commercial footing with one another at all times. The court
pointed out that the transaction was engineered by Mr Xu, and motivated by
his desire to persuade Ms Lin to live with him. Ms Lin simply accepted the
situation. The court said `[e]quity does not intervene merely because the
plaintiff has made an imprudent bargain or has been generous in a way that
may seem objectively foolish.'
49
In other words, being in love and wanting
to buy someone's affections is not so unusual that it should constitute a
disadvantage.
3. MacKintosh v. Johnson ± Life in the `sugar bowl'?
50
In 2013 the courts again had the opportunity to ask whether love is a
disadvantage in the case of MacKintosh v. Johnson.
51
Mr Johnson was a 73-year-old man who had been divorced for a long
time. He began a relationship with Ms MacKintosh aged 45 who was
previously married to the son of one of Mr Johnson's long-time family
friends. The relationship lasted approximately two years. The relationship
was intimate and sexual but Mr Johnson also acted as Ms MacKintosh's
business mentor and financial backer. He lent her a total of $175,000.
Evidence was tendered to show that Mr Johnson had subsequently converted
some of the loans to gifts. In 2008 he gave her a handwritten note which
214
48id., para. 13.
49id., para. 40.
50 In some circles this is a relationship that colloquially may be described as
`sugaring', a relationship where a `sugar daddy', a wealthy benefactor, forms a
relationship with a `sugar baby', an attractive woman or man who needs financial
assistance. SeekingArrangement.com is a website describing itself as the number 1
sugar daddy dating site in the world. It describes the relationship as a mutually
beneficial relationship where an `attractive guy or gal' can get help with your tuition
paid, your career, financial help with your rent or cosmetic surgery. See
SeekingArrangement.com, at tps://www.seekingarrangement.com/joinfree/
?ref=goo~230111017_9660912937_seekingarrangement&gclid=Cj0KCQiAv_HS-
BRCkARIsAGaSsrAlUS8s_iNiaRpoYTkfrN6o7pNNHHa73DStSyrqNPgI9-
bwsRlmmBkaAuRdEALw_wcB>.
51 MacKintosh v. Johnson, op. cit., n. 43.
ß2018 The Author. Journal of Law and Society ß2018 Cardiff University Law School
stated, `this is to certify that one hundred & twenty five thousand dollars I
have advanced to Kirsten MacKintosh is a gift.'
52
He also bought her
jewellery, clothes, and a house. Upon providing the money for the house, he
wrote to her saying, `May this be the foundation for many more beautiful
dreams that we can share together. Eternal Love. Dick XXXXXXXXX.'
53
While Mr Johnson was clearly keen to have a relationship with Ms
MacKintosh (as evidenced by him visiting her often and presenting her with
money and gifts), Ms MacKintosh was clearly less convinced. In August
2008 she wrote in her diary:
Dick wined + dined me @ Rydges Yepoon where he attempted to bed me.
Dick was unable to perform, in fact early ejaculation ± then I knew it could not
progress
54
In December 2008 she gave him a note that said:
I am very sorry we keep parting on bad terms. I believe it is because I can't
give you what you want and you keep pushing for it.
I think we should leave it at that we had some good times together.
55
The relationship finally ended in 2010 and Mr Johnson began proceedings
to recover the money he had lent her, and the purchase price of the house
($480,000). He argued unconscionability on the ground that he had been
acting under a special disadvantage. He argued that his age, his loneliness
and vulnerability, his desire for a companion, had all made him infatuated
with Ms Mackintosh.
56
Furthermore he argued that when he bought the
house his judgement was further weakened because he was recovering from
heart surgery.
In the first instance Judge Misso agreed that this case was very similar to
Louth v. Diprose and should have the same remedy. Mr Johnson was found
to be at a special disadvantage vis-aÁ-vis Ms MacKintosh. Judge Misso found
that Mr Johnson was captivated by the defendant, that this captivation
became infatuation and eventually obsession, which led to the clouding of
his judgement. He said, `[t]he conclusion I have reached is that the
infatuation and obsession which the plaintiff developed clouded his
judgement.'
57
On appeal to the Victorian Supreme Court this decision was reversed. The
court, Judges Buchanan, Whelan, and Hargrave, distinguished this case from
Louth v. Diprose. They said that Mr Johnson was able to afford the
215
52id., para. 40.
53id., para. 56.
54 Johnson v. MacKintosh [2013] VCC: AS, 46 <http://www.austlii.edu.au/
databases.html>.
55 MacKintosh v. Johnson, op. cit., n. 43, para. 51.
56id., para. 23.
57 Johnson v. MacKintosh [2013] VCC: AA, Misso J 162
databases.html>.
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generosity he lavished upon Mackintosh and was not emotionally dependent
upon her. The court said that the case was simply one of `mere folly', and
`clouded judgement', and not a case of special disability leading to
unconscionability. To see this case as unconscionability would be to set the
`bar too low.'
58
The court said that:
[s]omething more than mere infatuation and consequent foolish action based
on clouded judgement was required to establish that Mr Johnson's ability to
make decisions in his own best interests were so seriously affected as to
amount to a special disability or disadvantage.
59
The court's reasoning in both Da Yun Xu v. Fang Lin and MacKintosh v.
Johnson constitute a move away from the idea that being in love is a special
disadvantage. Furthermore, the cases also can be read as recognition of the role
that money plays in intimacy, persuasion, and courtship. If we accept these
readings of the cases, then the court is reflecting a more current and nuanced
rhetoric of romantic love and its relationship with economic exchange.
LOVE AS A DISADVANTAGE
60
Romantic love can be understood through different lenses: psychology, for
example, has focused on attachment and bestowal theories of human beha-
viour,
61
biology and neuroscience have focused on the chemical responses in
the body and brain,
62
anthropology has focused on the varied cultural
practices of it, evolutionary science has focused on the changes to family
groupings and human interactions.
63
These are all fascinating inquiries for
the study of romantic love, which cannot be pursued here. In this article I am
interested in the predominantly philosophical and sociological discussion
that focuses on whether romantic love as an idea and practice is best
characterized as a disadvantage in life. Briefly, however, by way of framing,
a good starting point to understanding romantic love through a philosophical
lens is Irving Singer's three-volume history of the philosophy of love.
64
216
58 MacKintosh v. Johnson, op. cit., n. 43, paras. 82±83.
59id., para. 77.
60This article is about romantic love and it focuses on heterosexuality. While this
discussion is intended as interdisciplinary, its reliance rests mainly on philosophical
and sociological studies. For more discussions on the development of romantic love,
see L. Secomb, Philosophy and Love: From Plato to Popular Culture (2007); R.C.
Solomon and K.M. Higgins (eds.), The Philosophy of (Erotic) Love (1999); R.C.
Solomon, About Love: Reinventing Romance for Our Times (1994).
61See R.J. Sternberg and M.L. Barnes (eds.), The Psychology of Love (1988); R.J.
Sternberg and K. Weis (eds.), The New Psychology of Love (2006).
62See H. Fisher, Why We Love the Nature and Chemistry of Romantic Love (2004).
63See D. Evans and P. Cruse, Emotion, Evolution and Rationality (2004); D. Evans,
Emotions in the Science of Sentiment (2001).
64I. Singer, The Nature of Love (3 vols., 1966, 1984, 1987).
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Singer argues that, while we begin to speak of romantic love in the
eighteenth century, it emerged from the courtly tradition as practiced in the
courts of Occitania in the south of France during the late middle ages. He
characterizes it around five central features. They are that the love between
men and women is something splendid and an ideal worth striving for; that it
is ennobling for both the lover and the beloved; that sexual love is more than
libido or a physical impulse, but something ethical and aesthetic; that it has
rituals within it but is not necessarily related to marriage; and that it is an
intense and passionate relationship that establishes a oneness between the
lovers.
65
Modern romantic love retains these features but also now includes
the enlightenment ideas of liberty and individual autonomy. Romantic love
has freed us to follow our own inclinations and desires irrespective of other
competing duties.
66
However, and perhaps ironically while championing
these ideals, modern romantic love has at the same time, as I will show
below, come to be associated with oppression.
The discourse of love as a disadvantage, so strongly evidenced in Louth v.
Diprose, is reflective of a negative discourse of romantic love. This nega-
tivity can be traced to romantic love's disruption of traditional social and
cultural practices.
67
As evidenced in its paradigmatic stories, romantic love
has always allowed love to triumph over duties imposed on individuals by,
among other things, tradition, class, race, and family. For example, in Romeo
and Juliet love overcomes family obligation, in Cinderella it overcomes
class and socio-economic factors, in Pygmalion it overcomes class and
education, in Guess Who's Coming to Dinner it overcomes race, while in
Pretty Woman it overcomes morality. The examples in popular culture are
endless. Romantic love has also been linked to radical political agendas such
as, for example, in the same-sex marriage debate.
68
In general we can say
therefore that romantic love has a strong connection to freedom and the
pursuit of individual satisfaction and autonomy. While this is championed by
many, for others it is also the source of love's problems. Many point to the
casualties of contemporary romantic love (high divorce rates, isolation and
loneliness, poverty and social instability) and as Robert Solomon puts it,
`[t]he result seems to be a culture that is fragmented, frustrated and lonely
just as much as (and because) it is romantic.'
69
217
65id., vol. 2, ch. 1.
66id., ch. 9.
67D. de Rougemont describes romantic love as a pathology which began as a reaction
against Christianity and, in particular, the institution of marriage, by people who
were still pagan: D. de Rougemont, Love in the Western World, tr. M. Belgion
(1983).
68 SeeR. Grossi, `Romantic love as a political strategy in the same-sex marriage
debate' in The Radicalism of Romantic Love: Critical Perspectives, eds. R. Grossi
and D. West (2017) 175. See, also, Michael Hardt's work on the political force of
romantic love.
69Solomon, op. cit., n. 60, p. 54.
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Notwithstanding the arguments of the men made in the unconscionability
cases I am citing in this article, it has been a long and sustained argument that
patriarchy renders women more susceptible to love's disadvantages than men.
Shulamith Firestone for example described romantic love as the pivot of
oppression for women ± a holocaust, a hell, and a sacrifice.
70
Simone de
Beauvoir argued that given the unequal position of men and women, love
becomes `a curse' that confines women in the feminine universe.
71
This
critique links the oppressiveness of love to its connection to patriarchy and the
division of the private and the public. While much has changed in social
institutions and relations since these writers, much also still remains the same,
and this argument against love remains contemporary. But, in any case, it is
not the sum of the argument. Ann Ferguson,
72
for example, has analysed
romantic love as part of capitalism's affective economy where romantic love
and care are exchanged and where women (as well as other groups arranged
by race, ethnicity, and nationality) are exploited.
73
Social theorist Eva Illouz
has linked love's miseries to the ways it mirrors and amplifies the institutions
of modernity shaped by economic and gender relations.
74
She argues that
romantic love in modern society, as seen through the practice of the self, the
will, recognition, and desire, is an agonizingly difficult experience. It is
especially so for women who, Illouz argues, are less able to exercise
autonomy, choice, and freedom than men. Marilyn Friedman, on the other
hand, considers the central problem of love to stem from its long association
with the idea of merger, which she argues can represent a significant
reduction in personal autonomy for women.
75
Wendy Langford argues that
the ideology of love itself is problematic because it is neither egalitarian nor
just. While love promises happiness and freedom from social constraint, it in
fact delivers the opposite. And according to Langford, the success of romantic
love depends upon a particular abstract individual type and model of rational
behaviour that is seldom found in reality. The individual required is `self-
aware and operates on the basis of reason'.
76
Langford says that not only is
218
70S. Firestone, The Dialectic of Sex: The Case for Feminist Revolution (1970).
71S. de Beauvoir, The Second Sex, tr. H.M. Parshley (1953) 669.
72 A. Ferguson, `Love, Caring Labour and Community: Issues for Solidarity and
Radical Change' in Gexcel work in Progress Report, Vol VIII, eds. S. Strid and A.G.
Jo nasd o ttir(2010 ),at
FULLTEXT02> 119; A. Ferguson, `Feminist Love Politics: Romance, Care, and
Solidarity' in Love: A Question for Feminism in the Twenty-first Century, eds. A.G.
JoÂnasdo ttir and A. Ferguson (2014) 250.
73See, also, A.G. JoÂnasdo ttir, Why Women are Oppressed (1994) 224.
74E. Illouz, Why Love Hurts: A Sociological Explanation (2012) 6.
75 See M. Friedman, `Romantic Love and Personal Autonomy' in French and
Wettstein, op. cit., n. 26, p. 162. See, also, M. Friedman, Autonomy, Gender, Politics
(2003).
76W. Langford, Revolutions of the Heart: Gender, Power and the Delusions of Love
(1999).
ß2018 The Author. Journal of Law and Society ß2018 Cardiff University Law School
this individual rarely found in society at large, she is even more rarely found
in the context of love.
77
While this critique of love is strong, we must be careful not to overstate it.
Some feminists dismiss the claim that romance is a site of women's
oppression and complicity in patriarchal structures, and instead argue that
love can be a site of resistance, transformation, and agency. Lynne Pearce,
Jackie Stacey,
78
and Janice Radway
79
have argued that love contains within
it an ability to liberate women from patriarchy. They argue that an
engagement with the narrative of romance enables women to facilitate the
`rescripting of other areas of life'.
80
Claire Langhamer has also shown how
in everyday courtship behaviour young women in twentieth-century Britain
have been able to act as `architects of their own lives and as active agents of
social change'.
81
Illouz also makes this point: she says that we must not
forget that historically the dominance of love has directly correlated with a
decline in men's power over women and with an increased equality between
them.
82
We must also recall that the many legal changes that have occurred
to the laws of marriage in western society have coincided with the period of
history where intimate relationships have been influenced by the ideology of
romantic love.
83
It is this liberalizing, egalitarian, and radical ideology that I suggest
dominates the contemporary rhetoric of romantic love and makes it the
existential goal that it has become in western societies. According to Simon
May, love in contemporary society is the ultimate source of meaning and
happiness,
84
which affirms the loved one, transforms us to a higher state of
being, redeems us from our suffering and is eternal, benevolent and har-
monious.
85
The elevation of love to this position must in part be understood
as the triumph of the positive ideology of love that aligns it with freedom,
liberty, agency, modernity, and progress, and opposes it to rules and
tradition, and social and cultural boundaries. According to Irving Singer,
romantic love developed as a result of the ideas of the enlightenment and
reflects a new kind of humanism.
86
219
77See M. Evans, Love: An Unromantic Discussion (2003); L. Kipnis, Against Love: A
Polemic (2003).
78L. Pearce and J. Stacey (eds.), Romance Revisited (1995).
79J.A. Radway, Reading the Romance: Women, Patriarchy, and Popular Literature
(1991).
80Pearce and Stacey, op. cit., n. 78, p. 19.
81C. Langhamer, `Love and courtship in mid-twentieth-century England' (2007) 50
Historical J. 196.
82Illouz, op. cit., n. 74.
83See Grossi, op. cit., n. 6.
84S. May, Love: A History (2011) 1.
85id., p. 2.
86Singer, op. cit., n. 64, vol. 3, p. 18.
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One of the strongest arguments for this reading of romantic love can be
found in the work of social theorist Anthony Giddens.
87
In The Trans-
formation of Intimacy
88
Giddens claims that the rise of romantic love today
has led to the democratization of the private sphere. It has given rise to the
`pure relationship', which is a durable emotional tie that can be established
according to another person on the basis of the tie itself rather than to
anything extrinsic to it.
89
He says that the pure relationship is `part of a
generic restructuring of intimacy' which can emerge in contexts other than
heterosexual marriage.
90
Essential to the emergence of the `pure relation-
ship' is `plastic sexuality'. Giddens explains that sexuality today has been
discovered, opened up and made accessible to the development of varying
lifestyles. It is something each of us `has', or cultivates, no longer a natural
condition which an individual accepts as a preordained state of affairs.
Sexuality functions as a malleable feature of self, a prime connecting point
between body, self-identity, and social norms.
91
Romantic love has given
way to `confluent love', an ideal of love that gives everyone a chance to
become sexually accomplished that is not necessarily heterosexual or
monogamous. In the model of the pure relationship and confluent love the
relationship holds only while each partner is gaining sufficient benefit from
it. Importantly for same-sex love, confluent love differs from romantic love
because `while not necessarily androgynous, and still perhaps structured
around difference, [it] presumes a model of the pure relationship in which
knowing the traits of the other is central'.
92
As such, sexuality is only one of
the factors that has to be negotiated as part of the relationship.
While Giddens' formulation of love in modern society has been criticized
for not reflecting reality,
93
its importance for this article is in its formulation
of a radical way of understanding love. For Giddens, the ideas of the `pure
relationship', of `plastic sexuality' and of `confluent love' are all `part of a
generic restructuring of intimacy'
94
representing a formulation of love that is
more democratic and inclusive than any in the past. If Giddens is right, then
love today is a negotiable space, free from social conventions that have
played such a dominant role in the past.
It is the idea that love is life (see May, above), and that love constitutes
free will and free choice, unrestrained by social conventions (Giddens,
220
87See, also, Solomon, op. cit., n. 60; S. Hendrick and C. Hendrick, Romantic Love
(1992); U. Beck and E. Beck-Gernsheim, The Normal Chaos of Love, tr. M. Ritter
and J. Wiebel (1995).
88 A. Giddens, The Transformation of Intimacy: Sexuality, Love and Eroticism in
Modern Societies (1992).
89id., p. 2.
90id., p. 58.
91id., p. 15.
92id., p. 63.
93L. Jamieson, `Intimacy Transformed? A Critical Look at the Pure Relationship'
(1993) 33 Sociology 477.
94Giddens, op. cit, n. 88, p. 58.
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above), which fuels behaviours seen in the cases discussed above. Where a
person will throw caution to the wind and follow someone interstate in the
hope that they will change their mind and marry them. Where someone
ignores social conventions and lavishes gifts and money on a much younger
woman who is giving them very little encouragement. Where someone will
buy and give a house to their favourite sex-worker in the hope that she will
fall in love with him. All of these acts are not the result of a `special
disadvantage' or even `clouded judgement' but rather they are done in
pursuit of living a life of love, to satisfy their heart. In the words of Selena
Gomez and Woody Allen quoted at the beginning of the article, they are acts
in pursuance of giving their heart what it wants even when they know it to be
foolish.
95
INTIMACY AND ECONOMIC EXCHANGE
The cases discussed above show the extent to which intimate relationships
are closely tied to economic exchange. While the two often come together,
the law tries to maintain a clear distinction between them. This distinction
however often reduces our understanding of them both individually and
together.
Viviana Zelizer claims that there are three main ways to see the relation-
ship between money and intimacy.
96
One is to treat them as completely
separate. Another is to see the connection as reducing intimacy to either a
commodity or a form of exploitation. And a third way, which she argues is
the more accurate, is to acknowledge the diversity of relationships and
economic transactions that exist. This approach will reveal that different
relationships have different transactions with specified patterns of payment
attached to them. In other words, she argues that, in fact, people use money
to buy intimacy, and the type of intimacy determines the appropriateness of
the form of payment. When she argues that people buy intimacy she is not
just referring to the ordinary transactions that take place in the sexual market
but, rather, to a variety of everyday intimate relationships where money and
financial gain are an expected part of the relationship. The cases of Louth v.
Diprose and MacKintosh v. Johnson above are a perfect example of intimate
relationships that are tied up with economic and financial exchange. In both
of these cases the women received financial contributions in exchange for
allowing the men to be part of their lives, including occasionally having sex
with them. These men were buying intimacy. These cases are by no means
unique. For example, Zelizer quotes the study Making Ends Meet
97
where
221
95See Allen and Gomez quotes at the beginning of this article.
96V. Zelizer, `The Purchase of Intimacy' (2000) 25 Law and Social Inquiry 817.
97K. Edin and L. Lein, Making Ends Meet: How Single Mothers Survive Welfare and
Low-Wage Work (1997).
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interviews with 400 single mothers revealed a complex system of relation-
ships with correspondingly different methods of payment attached to them.
For example, live-in boyfriends were expected to contribute cash and in-kind
goods. The interviews also revealed that the lines were not always easy to
draw. One mother described the arrangement she had as `social prostitution'.
Zelizer says these studies reveal that love, sex, and intimacy have always
coexisted and shaped one another. The world of intimacy and money is not
defined simply by `payment versus non-payment' but, rather, by their having
a complex and subtle association with each other.
98
When it comes to law, Jill Elaine Hasday
99
has argued that the law's
rhetoric holds that there is a strict boundary between economic exchange and
intimacy. (Hasday is talking of the United States but her argument is equally
applicable elsewhere.) This boundary is necessary in order to maintain the
specialness of intimate relationships.
100
Take the principle in contract law,
for example, that agreements between family members are presumed not to
be legally binding.
101
In any case, in reality, the law is required to place an economic value on
intimacy all the time. In doing so it walks a tightrope between com-
modification and undervaluing altruistically motivated behaviour. Marriage
is a perfect context where the law must acknowledge the economic exchange
that occurs in a relationship that is defined according to intimacy and emo-
tions. That marriage is a relationship of economic support is embedded in
many principles. In cases of injury, husbands and wives have been able to
claim loss of economic support.
102
There is also support for the idea that
husbands and wives participate in each other's business interests on different
criteria than business partners would.
103
And upon divorce, spousal main-
tenance and the principles that guide property settlement are all predicated
on the idea that marriage is a relationship where economic exchange occurs.
These are just some of the examples that show the intermingling of intimacy
with money and the law's relationship with both.
104
As Zelizer and Hasday
argue, the law is required to place an economic value on intimacy, and in
doing so, defines intimacy. While many fear that placing a value on intimacy
222
98Zelizer, op. cit., n. 96, p. 822.
99J.E. Hasday, `Intimacy and Economic Exchange' (2005) 119 Harvard Law Rev.
491.
100id., p. 499.
101 Balfour v. Balfour [1919] 2 KB 571 established that agreements made in the
domestic sphere are presumed not to be legally binding. Ermogenous v. Greek
Orthodox Community of SA Inc (2002) 209 CLR 95 emphasized that it is a
presumption only.
102The common law of negligence allows loss of earnings to be claimed by a spouse.
Loss of consortium is also possible although not as common as it once was.
103 Garcia v. Australia National Bank Ltd [1998] CLR 395.
104There are other historical examples. For example, common law once allowed wives
to bind their husband's credit under the doctrine of implied agency for necessaries:
see Debenham v. Mellon (1880) 6 App Cas 24.
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will commodify it,
105
Hasday argues that the relationship is more `subtle and
complex': being open about the way we regulate the relationship helps to
define and construct intimacy.
106
But the relationship is not only one-way; it is important to note here that
just as intimate relationships embody economic exchanges, so too does
economic exchange embody intimacy, emotion, and altruism. The idea that
all economic exchange occurs in a purely `rational', self-interested and
emotion-free world is fallacious.
107
Returning to the world of contract law,
which in many ways is the epitome of the free and rational market ideology
which informs so much of the general discourse of law, it has long been
argued that relationships are what drive contract rather than self-interest. Ian
Macneil has argued that contracts are part of the way in which we relate to
one another in society, part of the web of social relations. Contracts are not
always discrete exchanges between individuals; at times they are a complex
of social interactions.
108
In his theory, Macneil relied on studies by
Macaulay
109
which found that, contrary to free-market and self-interested
rhetoric, business people avoided lots of red tape, preferred to keep things
simple, and relied on decency and honesty to sort things out in the event of
things going wrong. Personal relationships and reputation were considered
the most important factors in business dealings and this remained true even
in situations of high risk. It is also important in this context to reference the
work of Nobel prize-winning economists Oliver Hart and Bengt Holmstrom,
who have argued that contracts involve minimizing conflicts of interests and
finding benefit for all parties as a means of maximizing individual gain.
110
223
105 Some argue that the complete commodification of intimacy will bring with it
equality and justice for women: see, for example, L. Hirshman and J. Larson, Hard
Bargains: The Politics of Sex (1999).
106Hasday, op. cit., n. 99, p. 493.
107Behavioural economics has something to teach us here. Conventional economic
theory teaches us that economic human behaviour is characterized by rationality and
self-interest. Behavioural economics challenges this and claims that people's
economic decisions are more complex and often contradict both reason and self-
interest. Intimacy is clearly a big factor in human economic behaviour: see R.
Thaler, Misbehaving: The Story of Behavioral Economics (2015).
108 I. Macneil, `Contracts Adjustment of Long term Economic Relations under
Classical, Neo-Classical and Relational Contract Law' (1978) 72 Northwest
University Law Rev. 854; I. Macneil, `The New Social Contract' (1980) 75
Northwest University Law Rev.; I. Macneil, `Relational Contract Theory: Challenges
and Queries' (2000) 94 Northwest University Law Rev.
109S. Macauley, `Non-contractual Relations in Business: A Preliminary Study' (1963)
28 Am. Sociological Rev. 55.
110O. Hart and B. Holmstrom, `The Theory of Contracts' in Advances in Economic
Theory Fifth World Congress (1987).
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CONCLUSION
If Brandon Wade, founder of the `sugaring' website `Seeking
Arrangement.com',
111
is right, and that the language of love is money, then
the direction of the law needs to acknowledge this, accommodate it, and
define its boundaries. In Louth v. Diprose the court followed the view that
intimacy and economic exchange are incompatible principles. The house
transaction was reversed because it was motivated by love rather than
reason. The subsequent cases of Da Yun Xu v. Fang Lin and MacKintosh v.
Johnson constitute a move away from the stark dichotomy between reason
and emotion, intimacy and economics, private and public. The fact is that
intimacy and commercial transactions commonly go together. The Da Yun
Xu case is the obvious example where sex and intimacy are often the subject
of a commercial transaction itself. Here Ms Lin was not just providing sexual
services; at times she acted as an escort for Mr Xu. But the court also
recognized that the contract included the expression of love as part of the
service. The relationship in MacKintosh v. Johnson looks very much like
what is commonly referred to in colloquial terms as `sugaring' and living in
the `sugar bowl'. These are arrangements where a `sugar daddy' and a `sugar
baby' enter into an intimate relationship where sex, companionship, and
intimacy are paid for with gifts, support for living and/or education, and/or
business expenses. In both of these cases the court did not see the economic
exchanges that took place, including the purchasing of houses for the
women, as inappropriate. In both cases, money and gifts were a continuing
part of the relationship and could not be reclaimed once the relationship
ended. These two cases represent a break from the idea that intimacy and
economic financial exchange are separate, and a break from the idea that law
should not enforce economic exchanges that are not made in the market
place under the auspices of supposedly `rational' market policies. They also
go some way, as Zelizer urges the law to do, towards defining the
appropriateness of the relationship between the two.
In doing this, however, the cases above also need to engage with the
meaning of romantic love and the place it occupies in modern society. Louth
v. Diprose is firmly embedded in the idea that love places us at a
disadvantage. This, as we have seen, reflects a particularly negative view of
love that we find most strongly, but not exclusively,
112
in the feminist
critiques of love and patriarchy. Nevertheless, there is overwhelming evid-
ence to suggest that if love does create misery, most people are still
motivated to look for it, and to fall over many hurdles in order to get it. In the
cases discussed above we saw that love motivated transfers of money for
224
111SeekingArrangement.com, op. cit., n. 50.
112 There are also strong queer critiques and conservative Christian critiques of
romantic love.
ß2018 The Author. Journal of Law and Society ß2018 Cardiff University Law School
business purposes, buying gifts (including houses) in the hope of winning
love even when the evidence suggested this was a scant hope. What
motivates this behaviour?
In practical terms, what this means is that legal doctrines such as
unconscionability need to recognize that in labelling romantic love as a
disadvantage, a particular normative standpoint is being taken that is not
necessarily reflected in society at large. Perhaps a more accurate position is
to accept the paradox of romantic love as a highly desirable existential goal,
but one that can lead to negative outcomes. In the numerous cases, therefore,
of romantically motivated economic exchanges that lead to economic dis-
advantage, the law might need to assess the applicability of unconscion-
ability, not according to whether the parties were in love but, rather,
according to other factors. Among others, Justice Fullagher in Blomley v.
Ryan listed possible factors that may give rise to a special disability as
poverty, sickness, age, infirmity, and lack of education.
113
There is no reason
why these factors (and others) could not be applied to situations where the
economic transaction is motivated by love. Love does not have to operate as
the disadvantage. This approach would have the added benefit of impacting
on the normativity of romantic love. It would challenge the idea with which
this article began, that otherwise questionable behaviour can be dismissed as
acceptable because it is done in pursuit of love.
225
113 Blomley v. Ryan, op. cit., n. 4, p. 405.
ß2018 The Author. Journal of Law and Society ß2018 Cardiff University Law School
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