Voluntary Acceptance
Overview
“Free” or voluntary acceptance, in effect, allows restitution where it would be unreasonable to allow a person to retain goods or a benefit accepted or enjoyed without paying or undertaking the corresponding liability. It is presumed unjust that there should be no payment or reimbursement where there is free acceptance.
Where goods, benefits or services are freely given and accepted in circumstances where it is clear that there is no gift or gratuitous intent, restitution will generally require a payment for the benefit received. A reasonable sum is payable on a so-called quantum meruit (what is deserved) or quantum valebat (what it is worth) basis. There are conditions and limits to this principle.
The mere giving of unsolicited benefits and services by itself does not give a right to restitution. A contract cannot be forced on a person on the basis that he is deemed to accept benefits or goods if he does not reject them. There cannot be a forced exchange.
There is no liability where there is no opportunity to reject it. Mere inertia selling would not qualify.
There must be some specific factor to make it unjustifiable that the benefit is retained without payment or is unremunerated. It must be unjust that the goods or services are not paid for or remunerated.
Scope
The principle applies to the free acceptance of goods and services. It potentially applies in circumstances where the beneficiary stands by or acquiesces in the receipt of a benefit. It applies where a benefit or advantage is taken deliberately and unfairly of something supplied by another.
There must be a free choice by the defendant to accept the benefit. It must be known not to be provided for free. Services rendered or goods sent under protest cannot found a claim for free acceptance.
The principle must not turn gifts into sales. If the person had no reason to believe the matter was intended to be charged for, then recovery will not lie.
Where the person has no reasonable opportunity to refuse a benefit, restitution will not usually arise. Unless guilty of a specific wrong such as breach of third party rights, one is entitled to do what one wants with one property. The principle of free acceptance must not inhibit the recipient from arranging his affairs and using his property as he wishes.
Objective Benefit
The benefit received must be an objective benefit. Although the goods or services may have an objective value, unjust enrichment looks at its value to the defendant. If the defendant does not want or value the benefit he may “subjectively devalue” it.
The claim of subjective devaluation can be countered by showing that the benefit was an “incontrovertible benefit”. It can also be shown that the defendant by his action and behaviour values the benefit notwithstanding the claimed subjective devaluation.
Money is usually deemed to be an incontrovertible benefit because its value cannot be reasonably denied. Equally the payment of a debt or discharge of a legal right liability is in the same category. Services received which were required and would have necessitated payment to another, will usually be in the same category.
There are circumstances where the payment of money is not necessarily an incontrovertible benefit. Sometimes payments are made in circumstances where they are quickly lost, particularly in circumstances of a fraud.
Ease of Rejection and Return
If the defendant keeps what he could easily return, this tends to show that he values, it. However a distinction is made between refusing to return and not bothering to return. It may not be reasonable to impose on the recipient, the burden of seeking out the claimant and returning the benefit. In many such cases, it would be more appropriate and reasonable that the claimant /sender retrieve the thing concerned.
Where a person has freely accepted something which he has little chance to reject there is unlikely to be restitution. This may occur in circumstances where a service is rendered instantaneously without request (cleaning windows in traffic)
In contrast if services are freely received which would otherwise be paid for, in circumstances where the recipient could have rejected them, but deliberately took no steps to do so, restitution is more likely. He may nonetheless be able to subjectively devalue it.
At Claimant’s Expense
The gain must be at the claimant’s expense or in circumstances where the claimant is entitled to the benefit concerned. This usually requires a direct transfer of value from one to the other.
To some extent, this is similar to the position in contract where parties to the contract only have rights. It is similar to the position in tort, where there must be a relationship of proximity, and the loss must not be too remote.
If the defendant makes a profit or windfall gain with the money received, this does not accrue to the claimant. The fact that the services rendered or goods provided give the defendant an opportunity to make profits or even a windfall does not allow the plaintiff to participate in them. The claimant is limited to the benefit transferred. The defendant has not been enriched at the claimant’s expense in this case.
Limits to Principle
The reasonable expectations of each party are relevant. If there is no reason to believe that payment is expected, then there is no restitution.
If a person’s circumstances give him a natural advantage/ability to take advantage of something in the vicinity, even for commercial purposes, there would be no free acceptance (e.g. overlooking a sports stadium)
The defendant’s subjective valuation of the benefit is relevant to whether and to what extent the enrichment/benefit is unjust. Where the objective benefit is not such to the recipient, he or she may subjectively devalue it, if it is demonstrably worth less or nothing to him.
If the benefit is incontrovertible, such as in the case of money, then subjective devaluation does not apply. An “incontrovertible” benefit is one that is patently so. If the recipient of the benefit takes it up, while claiming it is subjectively without value, this may undermine the claim of subjective devaluation.
Differs from Contracts & Failed Contracts
Free or voluntary acceptance differs from contract rights and restitution on the basis of failed assumptions and expectations. It does not apply to the transactions and supplies that take place in the context of a contract, which is later found void or terminated. Those cases are based on failed expectations which are the subject of separate restitutionary principles. Similarly, expected contracts do not fall into this category as they usually involve failed assumptions and expectations.
Where a benefit is requested and provided, it will often be possible to imply a contract. Where a person agrees to do work, but the price is not agreed upon, it will often be the case that there is an express or implied agreement is to pay a reasonable sum.
Where a benefit is given in response to a request, without a contract, but without the intention to give a gift, there will usually be a clear case of liability by way of restitution. The person who has made the request must pay a reasonable price. The case is similar to that where there is an express or implied contract to pay a reasonable price, but by reason of some circumstance, there is no contract.
The absence or presence of a contract may have a significant impact on the mutual rights and obligations of the parties. The restitutionary remedy is imposed by law, while the contractual basis turns on the court’s finding of the express or implied terms of the agreement.
Acquiescence
Restitution may be available where a benefit which, while unrequested, is taken up or acquiesced in by the recipient at the time or after the event. Acquiescence is a halfway house between acceptance and rejection. In this case, if a person stands by and lets the benefit happen, the court may decide on an equitable basis that there should be restitution.
Acquiescence without prior request may or may not create a restitutionary obligation. In some cases, it may be unjust to require a person on whom an unrequested benefit is conferred to make payment. In other cases, the commercial and other circumstances may point otherwise, The requirement to pay may not be unjust where they are used commercially for profit.
Deliberate Taking of Advantage
Where the defendant takes advantage of something which the donor supplied, without consent, in circumstances where it is patently not free, an obligation to pay will generally arise. The act will usually be wrongful in the everyday sense, such as entry into a venue without payment. The common feature is that the defendant has taken unfair advantage of the claimant in some way, such that the imposition of an obligation to pay is fair and reasonable.
It is said that the gate crasher/ fare dodger must pay under the principle of free acceptance. This would include a fare dodger or person sneaks into premises knowing that a charge applies. If the defendant objects or his choice is coloured by deception, the acceptance will not be free.
The same principles apply prospectively to persons who intercept services provided electronically. For example, intercepting signals, access to software or other material which are known to be subject to commercial licensing. The actions may constitute civil wrongs and the abuse of intellectual property right. However, but this does not preclude restitutionary recovery as well.
If a person lets another person improve his property knowing the position, he may be held to be estopped from denying the benefit, and the persons providing the benefit may be entitled to a lien for improvement. Proprietary estoppel governs much of this area.
Negating Voluntary Acceptance
The acceptance must be free and voluntary. It must not be induced by fraud, misrepresentation or mistake.
Where an apparently voluntary course of action is due to error, there may not be voluntary acceptance. The presence of error will not necessarily vitiate free acceptance. The error or mistake must affect voluntariness and the freedom of acceptance. Where the nature of the benefit provided is such that there is no basis or opportunity for refusal, the acceptance may not be free.
When a person organizes his affairs so that he cannot but take advantage of something, there is no free acceptance. Accordingly, where a person’s property adjoins a sports grounds, the use of the premises for charging spectators to see what is visible from the adjoining property may not be subject to restitution on the basis of free acceptance.
Where the respondent has made clear that he does not intend to pay, there is no voluntary acceptance. Where there is no reason for the respondent to think that the claimant intended to charge for work or that it was other than gratuitous, recovery will be allowed. If, however, it is obvious that there is an intention to charge, it is safer for the person who receives the benefit to take positive steps to reject, it if he does not wish to take advantage of it.
The courts may consider this that he considers who should take the risk in relation to the payment.
Inertia Selling
Where a person is sent goods unsolicited, and they are accepted and used, the common law position is that there is an obligation to pay a reasonable sum. Modern legislation has countered inertia selling and essentially allows the recipient to keep unsolicited goods in some circumstances.
Where
- unolicited goods are sent to a person with a view to his acquiring them and are received by him, and
- the recipient has neither agreed to acquire nor agreed to return them,
and either—
- during the period of six months following the date of receipt of the goods the sender did not take possession of them and the recipient did not unreasonably refuse to permit the sender to do so, or
- not less than 30 days before the expiration of that period the recipient gave notice to the sender and during the following 30 days the sender did not take possession of the goods and the recipient did not unreasonably refuse to permit the sender to do so,
then the recipient may treat the goods as if they were an unconditional gift to him and any right of the sender to the goods shall be extinguished.
The notice shall be in writing and shall state—
- the recipient’s name and address and the address at which the sender may take possession of the goods (if not the same) and
- that the goods are unsolicited.
A person who, not having reasonable cause to believe there is a right to payment, in the course of any business, makes a demand for payment, or asserts a present or prospective right to payment for what he knows are unsolicited goods sent to another person with a view to his acquiring them, shall be guilty of an offence.
A person who, not having reasonable cause to believe there is a right to payment in the course of any business and with a view to obtaining any payment for what he knows or ought to know are unsolicited goods—
- threatens to bring any legal proceedings,
- places or causes to be placed the name of any person on a list of defaulters or debtors or threatens to do so, or
- invokes or causes to be invoked any other collection procedure or threatens to do so,
shall be guilty of an offence.
Consumer Protection 2022
Where—
- goods are supplied by a trader to a consumer without any request by or on behalf of the consumer, or
- a service, digital service, digital content, or (where not supplied in a limited volume or set quantity) water, gas or electricity, is supplied by a trader to a consumer without any request by or on behalf of the consumer,
the consumer is exempted from any requirement to pay or provide any consideration to the trader and may treat the goods, service, digital service, digital content, water, gas or electricity as an unconditional gift.
The absence of a response from the consumer following the supply as mentioned in subsection (1) of goods, a service, digital service, digital content, water, gas or electricity does not constitute consent to—
- the provision of consideration for the goods, service, digital service, digital content, water, gas or electricity, or
- the return or safekeeping of any goods so supplied.