Free Acceptance
Voluntary Acceptance
In most cases of a requested benefit, the law will imply a contract. In some cases, it will imply a contract, even where the intended contract fails. Where a benefit is received by way of acquiescence, there may be ratification.
There are circumstances where persons freely accept services in which it would be unfair that they should not bear liability. It is said that the gate crasher/ fare dodger must pay under the principle of free acceptance. For this principle to apply, the acceptance must be free and voluntary. If the defendant objects or his choice is coloured by deception, the acceptance will not be free.
Where benefits or services are freely given and accepted in circumstances where it is clear that there is no gift, restitution will generally require a payment for the benefit received. The circumstances may range from where the benefit is requested to where the beneficiary stands by and acquiesces in the receipt of a benefit. There may be circumstances where a benefit is taken deliberately and unfairly, of something supplied by another.
Nature of Principle
Where services are rendered and taken advantage of, a reasonable sum may be payable. By the same token, a contract cannot be forced on a person on the basis that they accept if they do not reject. Such a claim will only be allowed where it is otherwise unjust and where it is patent that there is no gratuitous intent in relation to the supply of the goods. Mere inertia selling would not qualify
Voluntary acceptance in effect allows restitution where a person would act unreasonably in retaining a benefit accepted or enjoyed without undertaking the corresponding liability or obligation to pay. It is presumed unjust that there should be no payment or reimbursement. In the case of requested benefits, they are such that they rise in the clearly non-contractual context.
If a person’s circumstances give him a natural advantage/ability to take advantage of something in the vicinity, even for commercial purpose, there would be no free acceptance. If there is no reason to believe that payment is expected, then there is no restitution. The expectations of each party are relevant.
Inapplicable to Failed Contracts
Free-acceptance or voluntary acceptance differs from restitution on the basis of failed assumptions and expectations. It does not apply to the transactions and supplies take place in the context of a contract, which is later found void or is terminated.
Those cases are based on failed expectations which are the subject of a separate restitutionary principles. Similarly, expected contracts do not fall into this category as they usually involve failed assumptions and expectations. They are in effect alternative to contractual remedies
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.
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, it will often be the case that there is an express or implied agreement is to pay a reasonable sum. However, in some cases, there will be no possibility of finding a contract. In this case, there will generally be an obligation to pay a reasonable sum by way of restitution for the requested benefit.
Contract v Restitution
The absence or presence of a contract may have a significant impact on the mutual rights and obligations of the parties. Although the circumstances appear similar, the contractual and restitutionary bases of recovery may differ in their effect in the circumstance. 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.
Although a person may not force a contract another by on the basis of his silence, where the circumstances are such that it is not reasonable to conclude that the service has been provided gratuitously. This may arise in cases where the benefits are provided which are consciously used and enjoyed. 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.
Inertia Selling
Consumer legislation has countered inertia selling and essentially allows the recipient to keep unsolicited goods. Where unsolicited goods are supplied, or unsolicited services are provided, by a trader to a consumer, the consumer is exempted from any requirement to provide consideration for unsolicited goods or services supplied by the trader.
The absence of a response from the consumer following the supply of unsolicited goods or the provision of unsolicited services does not constitute consent to the provision of consideration for the goods or services, or the return or safekeeping of the goods. In the case of an unsolicited supply of goods, the consumer may treat the goods as if they were an unconditional gift.
Acquiesence
Where the benefit has not been requested but its receipt is acquiesced in or taken up by the defendant, restitution may be available. A contract cannot be forced on another, but the common law has taken the view that it is just that when a benefit is specifically taken up or used, that there should be payment in the absence of an intention to make a gift.
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 respondent has taken unfair advantage of the claimant in some way, such that the imposition of an obligation to pay is fair and reasonable.
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 person deliberately and unconscionably takes advantage of some things supplied or done. This would include a fare dodger or person sneaks into premises knowing that a charge applies, and simply takes an advantage which he knows requires payment.
The same principles apply, prospectively to persons who intercept services provided electronically For example, intercepting a signals, access to software or other material which are known to be subject to commercial licensing The actions may constitutes civil wrongs and the abuse of intellectual property right. However, but this does not preclude restitutionary recovery as well.
Presence of Error
The acceptance must be free and voluntary. It must not be induced by fraud misrepresentation of mistake. Where are apparently voluntary course of action is due to error, there may not be voluntary acceptance such as to give rise to an obligation to make restitution
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 that provided such that there is no basis or opportunity for refusal, the acceptance may not be free.
Negaing Voluntary Acceptance
Where a person organizes his affairs so that he cannot but take advantage of something, there is no free acceptance. Accordingly, where person’s property adjoins a sport grounds, the use of the premises for charging spectator 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 intent 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 payment.