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But more than that, the preconditions for imputation of a binding affirmatory election simply remain under-determined in the case law on the subject.
Nor could any question of estoppel arise, as there was no evidence that the vendor had prejudicially altered its position on the strength of any affirmatory representation made by the purchaser or arising out of his conduct.
When an affirmatory election is sought to be imputed or 'deemed', however, he considered that that ought to occur on the basis of some other legal preclusionary basis than election, such as estoppel, intervention of thirdparty rights, impossibility of restitutio in integrum or delay, whereby 'general considerations of justice' demanded that an election be imposed upon the power-holding party contrary to the truth.
For according to the Full Court in Coastal Estates, (35) true affirmatory election involves an unequivocal communication of a conscious decision on the part of the affirming party.
Neutral acts, however, cannot be regarded as unequivocally affirmatory unless they were performed by the electing party with knowledge of his or her inconsistent legal alternatives (as well as of the facts that generated them), whereas adverse acts, being 'unequivocal in their effect', need not be done with knowledge by the electing party of his or her rights consequent upon the facts.
Notice also that, on a meticulous reading, Elder's does not necessarily imply that unequivocal affirmatory acts performed without knowledge of the inconsistent power to disaffirm the contract must perforce result in a loss of that power through the election doctrine, rather than via some other legal preclusionary channel.
(75) Also, in Turner v Labafox International Pty Ltd, (76) a purchaser was held to have affirmed a contract even though his solicitor's affirmatory conduct (77) and his (the purchaser's) subsequent invalid attempt to disaffirm the contract occurred on the same day, and the vendor had not materially altered its position on the strength of the solicitor's earlier affirmatory conduct.