Election of Remedies

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Election of Remedies

The liberty of choosing (or the act of choosing) one out of several means afforded by law for the redress of an injury, or one out of several available Forms of Action. An election of remedies arises when one having two coexistent but inconsistent remedies chooses to exercise one, in which event she or he loses the right to thereafter exercise the other. Doctrine provides that if two or more remedies exist that are repugnant and inconsistent with one another, a party will be bound if he or she has chosen one of them.

The doctrine of the election of remedies was developed to prevent a plaintiff from a double recovery for a loss, making the person pursue only one remedy in an action. Although its application is not restricted to any particular Cause of Action, it is most commonly employed in contract cases involving Fraud, which is a Misrepresentation of a material fact that is intended to deceive a person who relies on it. A plaintiff can sue for either damages, thereby acknowledging the contract and recovering the difference between the contract price and the actual value of the subject of the contract, or rescission—annulment—of the contract and the return of what has been paid under its provisions, restoring the plaintiff to the position he or she would occupy had the contract never been made. If a plaintiff sought both damages and Rescission, the person would be asking a court to acknowledge and enforce the existence of a contract while simultaneously requesting its unmaking—two inconsistent demands. The granting of both remedies would result in the plaintiff recovering the difference between the contract price and actual value as well as what was paid to the defendant. The person would, therefore, earn a profit by the defendant's wrongful conduct against him or her, since the person would have more than he or she had when entering the contract.

Once a plaintiff elects a remedy, he or she precludes the pursuit of other inconsistent methods of relief. Not all jurisdictions require a plaintiff to elect remedies, and many have abolished this requirement because of its sometimes harsh effects. In the jurisdictions that retain the election of remedies, a plaintiff usually must choose a remedy early in the action. Since an election can be made by conduct, a plaintiff who does not take affirmative steps in designating a remedy is often deemed to have done so by inactivity. For example, a court may preclude a plaintiff from rescission if there has been an unreasonable lapse of time from the time of injury until the time of the commencement of the action. The only remedy available to the person in such a situation is to seek damages.

Although a revocation would not adversely affect the rights of a defendant, a plaintiff cannot revoke an election and seek another means of relief. In some jurisdictions, an election does not compensate a plaintiff for all his or her losses. A plaintiff who elects to rescind a contract—as opposed to suing for damages for its breach—might not recover any expenses incurred in the transaction that were not paid to the defendant. Such expenses would be considered damages, a remedy from which the plaintiff is precluded by his or her election of the remedy of rescission.

West's Encyclopedia of American Law, edition 2. Copyright 2008 The Gale Group, Inc. All rights reserved.

election of remedies

n. an outmoded requirement that if a plaintiff (party filing suit) asks for two remedies based on legal theories which are inconsistent (a judge can grant only one or the other), the plaintiff must decide which one is the most provable and which one he/she really wants to pursue, usually just before the trial begins, thus putting a possibly unfair burden on the plaintiff. Example: suing someone for both breach of contract and for fraud (a secret plan not to fulfill the contract when it was made.) Fraud might bring punitive damages, but proof of fraud might be more difficult than it would be for breach of contract. Increasingly, the courts have dispensed with the election of remedies as unfair until the evidence is fully presented.

Copyright © 1981-2005 by Gerald N. Hill and Kathleen T. Hill. All Right reserved.
References in periodicals archive ?
Where, as here, a party to a contract commits a material breach, 'New York's doctrine of election of remedies provides that the non-breaching party must choose between two remediesit can elect to terminate the contract and recover liquidated damages or it can continue the contract and recover damages solely for the breach.' VFS Fin., Inc.
As for the town's alternative argument that the doctrine of the election of remedies required arbitration of the dispute because Iafrate filed a union grievance prior to her charge of unfair labor practices the judge found both procedural error and no substantive reason for the board not to adjudicate the charge despite the pendency of a grievance.
What's more, Silverstein said, "There are certain special circumstances in which the parties have to engage in what is called 'election of remedies,' where you do have to choose between tort and contract.
LEGAL COMMENTARY: The court observed that the doctrine of election of remedies states that the election of one remedial right bars pursuit of another when one right is inconsistent with the other and the election is made with "knowledge and intention and purpose to elect." Traditionally, one purpose of the doctrine of election of remedies is to prevent double recovery and preclude a litigant from pursuing a remedy that, in a previous action, he rejected in favor of an alternative and inconsistent remedy.
4th DCA 2000)): "The purpose of the election of remedies doctrine is to 'prevent double recoveries for a single wrong.'" The remedy available, however, is not entirely up to the claimant.
The liquidated damages should be in amounts that the franchisor can defend as reasonable and attributable to defaults for which the franchisor does not plan to also ask for injunctive relief because they will likely be viewed as an election of remedies.
The conceptual basis for permitting landlords to thus pre-condition the quiet possession covenant is that such a precondition is simply analogous to a parallel principle and potential trap for the unwary tenant - in the doctrine of constructive eviction, the principle of "election of remedies." See, e.g., Roma Shopping Plaza, Inc.
However, at least one court in New Jersey has rejected that argument, finding that the election of remedies provision in the New Jersey statute pertains only to other claims for wrongful termination based on the employee's disclosure of wrongdoing.
Flexibility Theory Differs from Election of Remedies