term mandatory would do. Usually it will be sufficient that a term is not binding on the aggrieved party if in the particular circumstances it is unfair. This leaves parties who are fully informed and dealing at arms’ length free (when the term will normally be fair: see above) to arrange their affairs as they wish. However, sometimes it may be easier to have a simple rule rather than a standard that varies according to the circumstances of each case.

Non-contractual obligations

12.Emphasis on obligations rather than freedom. The purpose of the law on benevolent intervention in another’s affairs, on non-contrac- tual liability for damage caused to another and on unjustified enrichment is not to promote freedom but rather to limit it by imposing obligations. Here we see the principle of freedom being counteracted by the competing principles of security and justice.

13.Freedom respected so far as consistent with policy objectives.

Nonetheless the underlying principle of freedom is recognised in that the model rules impose these non-contractual obligations only where that is clearly justified. So, a benevolent intervener has rights as such only if there was a reasonable ground for acting; and there will be no such ground if the intervener had a reasonable opportunity to discover the principal’s wishes but failed to do so or if the intervener knew or could be expected to know that the intervention was against the principal’s wishes.18 To the maximum extent possible the principal’s freedom of action and control is respected. In the rules on non-contractual liability for damage caused to another, the imposition of an obligation of reparation is carefully limited to cases where it is justified. It is this concern which explains why this Book does not simply adopt some sweeping statement to the effect that people are liable for damage they cause. Respect for freedom (not to mention security and justice viewed from the point of view of the person causing the damage) requires careful and detailed formulation of rules imposing liability. Again, in the law on unjustified enrichment

18 V. – 1:101(2).

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