Acceptance of benefit as a basis for restitution

Abstract

In the late 1980s, after the publication of Professor Birks’s Introduction to the Law of Restitution, the role of acceptance as a basis for restitution in relation to non-monetary benefits was hotly debated. In recent years that debate has gone cold and very little has been published. Nevertheless, all restitution scholars have their opinion as to the legitimacy of acceptance and the weight of opinion appears to be against the concept. This position stands in stark contrast to recent Australian case law which clearly adopts the concept. However, despite Australian law being clear, no Australian case has considered all the arguments that have been raised against the concept, nor attempted to subject the various forms of acceptance to analysis. In this article it is suggested that acceptance has always been a part of restitution, and, although at a theoretical level it may have its flaws, no other competing principle has the same analytical and predicative power as acceptance.