Rethinking Election: A General Theory

Abstract

This article makes an overdue attempt to rationalise the notion of ‘election’ as applied by Anglo-Australian courts. It addresses a fundamental paradox in existing English and Australian law: while ostensibly resisting any effort to bring all election cases under a general theory, Anglo-Australian courts conceptualise an election in a way little short of radical, holding it invariably as a unilateral, informed choice between inconsistent options, which in itself furnishes a distinct legal basis for the irrevocability of such a choice. The article suggests that all election cases must be united under a general theory, but this theory should not be given the normative force the law currently espouses. It substantiates this suggestion by way of a critical review of two well-established categories of election at common law and concludes that disaffirmation and affirmation of contract are acts of distinct natures and cannot be accommodated under the same notion; election is ill-suited for determining whether a choice to sue an undisclosed principal or its agent is binding. In both cases it is estoppel, rather than election, that holds the best promise to justify, if at all, the irrevocability of the choice made. Consequently, the normative conception of election should be discarded and the general theory be reformulated in descriptive terms, parting with irrevocability as one of its essential elements.

Keywords: Election, Common Law, rethinking