(B) FREE ACCEPTANCE
It has sometimes been suggested that there is another ground ofrestitution which can only be characterized as defendant-oriented, namely free acceptance or, a more accurate description, unconscionable receipt. Such a ground of restitution would be established where the defendant accepted a benefit, knowing that the claimant expected to be paid for it and in circumstances where the defendant had an opportunity to reject it. Whether such a ground of restitution should be recognized is a highly contentious matter, particularly because, if it exists, its characteristics are very different from the majority of the other grounds of restitution, since it is wholly defendant-oriented and depends upon proof of fault, namely that the defendant had acted unconscionably. In Rowe v Vale of White Horse DC, however, Lightman J specifically recognized that free acceptance was a ground of restitution in its own right, although it was not established on the facts. In that case the council had provided sewerage services for Rowe without charge. Eventually the council sought restitution in respect of the provision of these services on the basis that Rowe had freely accepted them. Lightman J recognized that free acceptance was relevant both to establishing an enrichment and as a ground of restitution. Free acceptance was not, however, established because Rowe had not reasonably expected to pay for the services and had not been given an opportunity to reject them. Consequently he could not be considered to have acted unconscionably. Further, in Benedetti v Sawiris Lord Reed referred to free acceptance as a ground of restitution. Whilst he did not endorse its recognition, he did not deny that it could operate as a ground of restitution.
The strongest proponent of free acceptance as a ground of restitution was Birks in some of his earlier writings, but he subsequently tempered his views and recognized that many of the cases which he once argued were explicable by reference to free acceptance are better explained as cases where there was a failure of basis. So, for example, where the defendant has requested the claimant to transfer a benefit to her and the claimant does so on the condition that the defendant would pay for it but she fails to do so, the ground of restitution will be failure of basis because the recognized condition for the transfer of the benefit to the defendant has failed.
Where, however, the claimant transfers a benefit to the defendant in the hope or expectation that the defendant will pay for it, but without any request from the defendant or previous communication between the parties, it will not be possible for the claimant to ground a claim on failure of basis. Consequently, Birks argued that it is in this limited context that there is a role for free acceptance as a ground of restitution. He called this the ‘secret acceptance’ case. It is characterized by the facts that the defendant had the opportunity to reject the benefit and knew that the claimant expected to be paid for it, but the claimant was not aware that the defendant knew this. The operation of this principle can be illustrated by reference to Birks’s notorious example of the window cleaner who cleans the defendant’s windows without being requested to do so. If the defendant was in the house at the time, knew that the claimant expected to be paid for cleaning the windows and failed to stop the claimant from continuing with the work, even though the defendant had the opportunity to do so, Birks concluded that the defendant had received the benefit unconscionably and restitution should follow. Unconscionable receipt would only be established in such a case if the defendant believed that the claimant would have stopped cleaning had the defendant said that he or she would not pay for the work, and as long as the defendant had decided at the time of the cleaning that he or she would not pay the claimant.
Two arguments can be identified for rejecting free acceptance as a ground of restitution. First, because the claimant took the risk that the defendant would not pay for the work.27 It is a fundamental principle of the law of restitution that the claimant who is a risk-taker should not be able to obtain restitutionary relief.28 Burrows has correctly argued that the claimant’s risk-taking cancels out the shabbiness of the defendant’s behaviour in unconscionably accepting the benefit. Consequently, there is no injustice in the law of restitution failing to require the defendant to pay for the benefit in such circumstances. This argument is consistent with a number of cases which recognize that a claimant who provides a benefit which has not been requested by the defendant, should not be able to obtain restitution if none of the other recognized grounds of restitution are applicable.29 Indeed, the failure to establish free acceptance on the facts of Rowe v Vale of White Horse DC30 is consistent with the principle of risk-taking barring the claim. For the council in that case had deliberately decided not to inform the householder that sewerage charges were payable, because the council was unsure whether it was able to demand such payments. This prevented it from relying on the ground of mistake,31 but also indicates why free acceptance was not available either.
A further criticism of free acceptance as a ground of restitution is that liability will be imposed on the defendant for his or her failure to act, and this is contrary to the general approach of English law which is opposed to imposing liability for omissions, save in the most exceptional and well-defined circumstances where it is possible to conclude that the defendant was under a duty to act.32 This general rejection of liability for omissions is consistent with the autonomy principle.33
It follows that the preferable view, despite the decision in Rowe v Vale of White Horse DC34 and dicta in other cases, is that free acceptance should not be recognized as a ground of restitution.35 Failure of basis and other grounds of restitution should be available in many of the cases where the claimant has provided a non-money benefit to the defendant and, to the extent that the claimant is a risk-taker, the award of restitutionary remedies cannot be justified anyway.
-  edn, London: Sweet and Maxwell, 2011), ch 17.
-  Rowe v Vale of White Horse DC  EWHC 388 (Admin),  1 Lloyd’s Rep 418.
-  Ibid. See p 87, above. Free acceptance was also assumed to be a ground of restitution in Chief Constable ofGreater Manchester Police v Wigan AFC  EWCA Civ 1449,  1 WLR 1580.
-   UKSC 50,  AC 938, . See also Sharab v Prince Al-Waleed Bin Talal Bin Abdul-Aziz Al-Saud  EWHC 1798 (Ch),  2 CLC 612,  (Sir William Blackburne) and Professional CostManagement Group Ltd v Easynet Ltd, 9 July 2012, .
-  PBH Birks, ‘In Defence of Free Acceptance’ in AS Burrows (ed), Essays on the Law of Restitution (Oxford:Clarendon Press, 1991), 111. See also A Simester, ‘Unjust Free Acceptance’  LMCLQ 103, 104. Freeacceptance had no part to play in Birks’s later scheme of absence of basis, as expounded in his UnjustEnrichment (2nd edn, Oxford: Oxford University Press, 2005). See p 127, below.
-  See Chapter 13; Birks, ‘In Defence of Free Acceptance’, 111.
-  The conditions for establishing failure of basis are examined at p 314, below.
-  Birks, ‘In Defence of Free Acceptance’, 118.
-  Birks, An Introduction to the Law ofRestitution, 265.
-  Birks, ‘In Defence of Free Acceptance’, 121. It is for this reason that the defendant who refuses to putmoney in a busker’s hat after listening to the busker’s music cannot be regarded as unconscionably receiving abenefit, since the busker would have carried on playing music even if he or she knew that the defendant wouldnot pay.