(i) The Claimant Acted Selfishly Rather Than Benevolently
The first interpretation, as exemplified by Falcke itself, suggests that the claimant will be considered to have acted voluntarily if he or she acted selfishly rather than benevolently for the defendant. In Falcke the claimant was the mortgagor of a life insurance policy, who had paid a large annual premium to ensure that the policy did not lapse. Although it might be argued that it was necessary for the claimant to act to preserve the insurance policy, it was held that he was not able to recover the amount he had paid from the defendant, who was the executrix of the mortgagee of the policy, because the claimant had been acting as an officious volunteer, motivated by a desire to protect his own proprietary interest in the policy rather than that of the defendant. Consequently, the claimant had acted from motives of self-interest rather than benevolence.
(ii) The Claimant Intervened When Not Legally Obliged to Do So
The alternative interpretation of voluntariness in the context of necessity limits the ambit of the restitutionary claim much more dramatically. Under this interpretation the claimant will only be able to rely on necessity where he or she was legally obliged to intervene. The recognition and application of this interpretation of voluntariness is illustrated by Macclesfield Corporation v Great Central Railway, where the defendant railway company was obliged by statute to keep a bridge in good repair. The claimant highway authority had requested the defendant to repair the bridge, but the defendant refused to do so. Since the bridge was in a dangerous state of disrepair, the claimant undertook the necessary repairs and then sought restitution of its expenses from the defendant. The claim failed. The Court of Appeal did not examine whether the claimant had acted in circumstances of necessity, but concluded that the claim should fail simply because the claimant had acted voluntarily since it was not under any legal liability to carry out the work.[1] This interpretation of the voluntariness principle had earlier been recognized by Eyre CJ in Nicholson v Chapman,10 who suggested that ‘perhaps it is better for the public that these voluntary acts of benevolence from one man to another, which are charities and moral duties, but not legal duties, should depend altogether for their reward upon the moral duty of gratitude’.[2]
(iii) The Preferable Interpretation of Voluntariness
Of these two interpretations of voluntariness the former is preferable since there is no obvious reason why a claimant who has acted in the interests of the defendant, who has been enriched as a result, should be denied restitutionary relief simply because the claimant was not legally obliged to act. Where, however, the claimant has acted for his or her own selfish reasons, he or she should be considered to have acted voluntarily and the claim for restitution grounded on necessity should be defeated.
