So murky are the waters that judicial acceptance of the concept through the years has been less than overwhelming. The farthest it has reached, according to Hedley1 is this: a considerable number of judges now recognize that there is an important subject called restitution and that in general terms, it concerns the removal of benefits that would otherwise unjustly enrich the defendant.It is not difficult to imagine that jurisprudence surrounding the much more limited principle of free acceptance is even narrower. To aspire for universality or even, less ambitiously, coherence, would be a futile exercise. The only discernible trend is, as Hedley somewhat cynically puts it, "the willingness to make quite spectacular changes in the law when the judge's moral feelings are sufficiently outraged."2
What this paper will attempt to do is to present a comparative overview of free acceptance, and to some extent, unjust enrichment, as it is applied in common law jurisdictions. By way of providing some form of context, it will also explore how the common law countries perceive these two principles, as opposed to civil law countries. The jury is still out on the question of what the future holds for these two intertwined doctrines, dependent as it largely is on the vagaries of the legal system and the constantly-shifting winds of judicial discernment and discretion.
II. Free Acceptance Not Freely Accepted: A Review of Scholarly Studies
To quote Birks, "a free acceptance occurs where a recipient knows that a benefit is being offered to him non-gratuitiously and where he, having the opportunity to reject, elects to accept."3 It is an alternative to incontrovertible benefit that cannot be disputed by the defendants, as in benefits that have accrued due to a clear and unmistakeable meeting of the minds. Birks proceeds from Goff and Jones4 who first propounded the idea of subjectively-determined benefit.
The most famous example of free acceptance is of a window cleaner who cleaned the windows of a homeowner, the homeowner being fully aware that the window cleaner believed that he was performing the service for valuable consideration and yet doing nothing to stop the cleaner from cleaning the windows. Per the argument of Goff and Jones and Birks, (though the latter partially retracted a few years later), he is deemed to have freely accepted the service and should be made liable to the window cleaner.
There is no dearth of legal theorists, however, who have found flaws in this example, flaws that render the entire principle of free acceptance vulnerable. Garner5 for example, stated:
A defendant may seek subjective devaluation of an objective benefit conferred on him by the plaintiff in two ways. First, he can appeal to his own personal, and perhaps, perverse tastes. While the reasonable man might like his house to have clean windows, the defendant may assert that he prefers his dirty. So if a window cleaner does work on his house by mistake, he may resist the window cleaner's restitutionary claim simply by denying that he has received a benefit. Clean windows are of no value to him. He has the right to be perverse. Alternatively, he may appeal to a particular (and not necessarily perverse) expenditure priority. He might concede that he likes his windows clean. However, he may have preferred to have done the job himself rather than pay somebody else to do it for him. He might have more important things on which to spend his money.
It is Garner's contention that more needs to be done than to "simply establish a conceded or acknowledged benefit the arguments based