Ordinarily, if a benefit is conferred with the intention of charging therefor, the circumstances preclude the recipient from subsequently claiming with reason that he believed that no compensation was expected. Occasionally, however, a benefit so conferred may be accepted in the reasonable belief, either that it is a gift, or that for some other reason payment will not be required. To take a simple example, let it be supposed that A sends a barrel of apples to B, reasonably expecting, as a result of their previous course of dealing, that B will return the goods if he does not wish to purchase them; but B, as a result of misinformation to the effect that A is giving a barrel of apples to each of his customers, accepts the goods in the belief, reasonable under the circumstances, that compensation is not expected. In such a case the acceptance of the benefit cannot be said to evince an intent to contract, and consequently imposes upon the recipient no contract obligation. But the benefit has been conferred in misreliance upon a supposed contract, and the question arises - Is there a quasi contractual obligation to make restitution? Is the retention of the benefit unjust ? If the benefit may be returned in specie, it is. If the benefit may not be returned in specie, the answer must depend upon the result of a further inquiry - Did that which the conferee received, or, in the case of money, its application, save him from the expenditure of money, or the assumption of pecuniary obligation? If it did, a failure to make restitution would be a distinct injustice, and to refuse to enforce it would be to permit the recipient of the benefit to profit by the conferrer's mistake. If it did not, there is no injustice in a refusal to make restitution. To compel restitution would be merely to shift the burden of a misunder-standing from the shoulders of one innocent man to those of another.

1 1857, 27 L. J. Exch. 117; s. c. 2 Hurl. & N. 564.

2 "Quasi-Contracts," p. 360. The italics are the present author's. 3 See Professor Costigan's article, 7 Columbia Law Rev. 32, 42.

Whether or not, in a given case, the defendant has been saved from the expenditure of money or the assumption of obligation, may be a difficult question. But the plaintiff should be given the benefit of a doubt. In other words, proof that the defendant reasonably believed that no compensation was expected, together with proof that restitution in specie cannot be made, constitutes no defense to the charge of unjust enrichment. It must further appear that the receipt of the benefit did not save him from the expenditure of money or the assumption of obligation. Consequently, where there is room for the supposition that the defendant might either have accepted the plaintiff's goods or services, or have obtained similar goods or services elsewhere, had he known that he would have to pay for them, there is ground for requiring him to make restitution. Thus, he should be compelled to pay for goods in the nature of necessaries for his family or his business received and consumed by him in the reasonable belief that compensation was not expected. But where the only reasonable inference from the facts proven is that the defendant would not have obtained the goods or services, or similar goods or services, in any event - as, for example, where the goods were of a sort never purchased by him or his family - a case for enforcing restitution is not established.

Again, in case the benefit consisted of money which has been expended, if it may reasonably be supposed that the conferee might have expended his own money as he expended that which he believed to be a gift, he ought to be compelled to make restitution; but if it clearly appears that he has used the money received from the plaintiff in the purchase of luxuries which otherwise he would not have obtained, restitution should not be enforced.

It may be that the test of the justice or injustice of the defendant's retention of a benefit, above suggested, is impracticable of application; but it would seem to present no greater difficulty than is frequently encountered in determining whether or not, under the circumstances of a particular case, articles furnished to an infant are necessaries.