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.

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.

References in periodicals archive ?
4th DCA 2000)): "The purpose of the election of remedies doctrine is to 'prevent double recoveries for a single wrong.
Election of remedies allows a plaintiff to present inconsistent causes of action in hopes of recovering under any theory.
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.
When a tenant asserts a partial or total constructive eviction as a defense to the non-payment or rent, the tenant's refusal to pay rent constitutes an election of remedies, and the tenant has no claim for damages.
Chapter 9: Cumulative Remedies and Election of Remedies
Governing Law and Forum Selection; Waiver of Jury Trial; Arbitration; and Cumulative Remedies and Election of Remedies (dispute resolution provisions).
Instead, the court found that the dispositive issue was whether there had been an election of remedies: CCP section 726's sanction applies only if there has been an election of remedies.