ABSTRACT
In such cases, recovery for failure of assumptions begins to look a little like free acceptance, which is dealt with in Chapter 5.3 Nevertheless, it is suggested that the concepts are analytically distinct. The thinking behind failure of assumptions is that if the claimant fails to receive what he hoped to get, he should, at the very least, be able as an alternative to recover the value of the benefit he provided. Free acceptance proper, by contrast, is premised on a simpler idea: namely, that one should not be able to accept a benefit provided at a price, and at the same time deny an obligation to pay for it.4 Moreover, there are cases on failure of assumptions that cannot convincingly be regarded as free acceptance situations. In the case of part performance of a contract, for example (the case of the builder ejected from the site), the part performance was never knowingly accepted at all. The defendant did not want a partly done job: the claimant, for his part, never envisaged charging for anything other than a complete one. Some other basis for liability must therefore be found.
