Lloyd's Maritime and Commercial Law Quarterly
UNJUST FREE ACCEPTANCE
Andrew Simester *
Peter Birks has recently defended his claim that free acceptance should be a ground of recovery in restitution. This article develops Birks’ analysis, and shows that it involves not merely “unconscientiousnesss” on the part of the defendant, but also a mistake made by the plaintiff. Nevertheless, there should be no recovery for free acceptance. The intervener in such cases is a risk-taker and there is no merit in his claim to recover for services rendered, even though the defendant unconscientiously stands by and fails to stop performance of the work. It would, moreover, be undesirable to have a general law of obligations founded on passive rather than active conduct. Yet, despite all this, there may still be room for free acceptance, if we abandon the assumption that the grounds for restitution can be exclusively plaintiff-or defendant-oriented. Free acceptance, and restitution in general, has greatest force when it combines elements of each.
Introduction
In An Introduction to the Law of Restitution, Peter Birks takes the basic criteria of a restitutionary cause of action to be (a) an enrichment to the defendant (b) at the expense of the plaintiff (c) which is unjust.1 The last condition conceals much: it is thought by Birks to be met where the benefit either is received without the full and unconditional assent of the plaintiff (“non-voluntary transfer”) or, alternatively, is freely accepted by the defendant. But should free acceptance really be sufficient to establish injustice?2 Burrows and Mead have argued that it is in fact irrelevant to that criterion. In a more recent essay, however, Birks has refined and renewed his argument.3
Free acceptance as unconscientious receipt
The refinement is achieved through abandoning the position that voluntary receipt of a benefit is by itself sufficient to establish the injustice element in restitution. The
* Senior Lecturer in Law, University of Birmingham. The exacting criticisms made by Jack Beatson, Paul Key, Bob Sullivan and Peter Watts of an earlier draft of this paper have been a source of both gratitude and regret. The reasons for gratitude may be obvious: I regret only that I lacked the ability to satisfy such generous and demanding friends.
1. (1985) (hereafter “Introduction”), Chap. 4. This analysis is not novel: see e.g., American Law Institute, Restatement of the Law of Restitution, Quasi-Contract and Constructive Trusts (1937), s. 1.
2. My depiction of criterion (c) as an “injustice” element is loose, but not cavalier, I shall revisit this point in the final part of the paper.
3. “In Defence of Free Acceptance” in Burrows (ed.), Essays on the Law of Restitution (1991) 105 (hereafter “Defence”), 124.
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