Circumscribing election: Reflections on the taxonomization and mental componentry of the affirmation of a contract by election
Date of this Version
It not frequently occurs in legal contractual settings that one contracting party is confronted with a choice between holding the other contracting party to a valid and subsisting contractual relationship inter se ('affirming' the contract), and exercising an inconsistent legal power permitting that relationship to be put to an end ('disaffirming' the contract) When that happens, the other party becomes vulnerable to having his or her existing legal position altered (indeed abolished) by the unilateral decision of the party so confronted and empowered. The existence of such vulnerability thus necessitates that a choice, one way or the other, eventually, and permanently, be made; for it is undoubtedly unfair and inconvenient that the other party should be 'faced with the dilemma of uncertainty'3 as to where she or he strands vis-it-vis the first party,4 especially in commercial affairs, and that she or he should thereby be exposed to procrastination worse, opportunism at the hands of the party empowered to choose.5 Contract law's longstanding aversion to one-sided promises generally explains why the power-holding party should be disqualified from an ability to speculate protractedly or indefinitely on the future progress of the contract at the other party's risk or possible disadvantage.
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