The Use and Misuse of Equitable Election

23 Pages Posted: 2 Apr 2014

See all articles by Qiao Liu

Qiao Liu

City University of Hong Kong (CityU) - School of Law

Date Written: 2013

Abstract

The propriety and even existence of a doctrine of ‘equitable election’ is a long-standing, little-explored mystery. In Australia, as well as in England, it has been repeatedly pronounced by both courts and commentators that the notion of election comprises multiple doctrines and there is a fundamental divide between election at common law and election in equity, each eliciting a distinct doctrine operating to the exclusion of the other. However, expository analyses of the notion of election, particularly of its theoretical foundation, have thus far been restricted to its manifestation at common law. There is as yet no convincing rendition of the application of that notion in equity. Indeed, it is far from clear in what circumstances equitable election might be invoked and what its precise scope of operation is. In this respect it seems to be less established than common law election. Nevertheless, even still covered in mist, equitable election is equally infected with an abnormality that has haunted common law election since its birth, an abnormality which consists in Anglo-Australian law’s persistence in the position that an act of election should be regarded as invariably and innately irrevocable. At the heart of this abnormality lies an inexplicable lack of convincing explanations or justifications for the obligatory effect, or irrevocability, of an election.

Keywords: Equitable Election, Common Law

Suggested Citation

Liu, Qiao, The Use and Misuse of Equitable Election (2013). University of New South Wales Law Journal, Vol. 36, No. 3, 2013, University of Queensland TC Beirne School of Law Research Paper No. 14-13, Available at SSRN: https://ssrn.com/abstract=2408304

Qiao Liu (Contact Author)

City University of Hong Kong (CityU) - School of Law ( email )

6/F, Lee Shau Kee Building
Kowloon, Shatin, New Territories
Hong Kong

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