Fine-tuning affirmation of a contract by election: Part 1

The common law election doctrine is well known to judges and lawyers but it is not always well understood. This article considers that doctrine as it applies to the choice, which occasionally confronts a contracting party, between asserting a right to hold the other party to the existing contractual relationship inter se (that is, "affirming" the contract), and exercising an inconsistent legal power allowing that contractual relationship to be put to an end (that is, "disaffirming" the contract). The right-holder's communicated decision not to disaffirm the contract alone results in "affirmation" of the contract and, by operation of law, permanent loss of the power that was not exercised, thereby destroying the inconsistency between the two jural alternatives that necessitated a choice in the first place. The election to affirm the contract, as opposed to disaffirming it, is the focus of this article, which will be published in two parts. This part considers miscellaneous troubling or unsettled features of the election doctrine's scope, rationale, criteria, relationship to other legal preclusionary categories, and operation as they relate to affirmatory decisions or conduct in particular. Part 2 will examine the difficult and controversial question of the necessary mental componentry of an effective affirmatory election, in the light of the well-recognised contemporary distinction between "actual" and "imputed" election.