Fine-tuning affirmation of a contract by election: Part 2

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Journal Article

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Citation only.

Bigwood, R. (2010). Fine-tuning affirmation of a contract by election: Part 2. New Zealand Law Review, 2010(4), 617-688.

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2010 HERDC submission. FoR Code: 180100

© Copyright Rick Bigwood, 2010


Part 1 of this article is published at [2010] New Zealand Law Review 37. It considers various troubling or unsettled features of the common law election doctrine as it applies distinctively to the choice between affirming and disaffirming a contract. the present Part 2 of the article turns to examine the difficult and controversial question of the necessary mental componentry of an effective (hence binding) election to affirm, in the light of the well-recognised, but problematical, contemporary distinction between 'actual' election and 'imputed' election. It is unlimitedly argued that affirmation of a contract by way of election must involve the unambiguous communication of an actual and conscious decision not to disaffirm the particular contract in questions. Otherwise, the conditions of a limited conception of 'imputed election', described and developed herein, must be satisfied. According to that limited conception, an election to affirm may be imputed without proof of an actual intention to elect, but never without knowledge, actual or constructive, of the available legal alternatives between which the party in question is claimed to have elected. However, this limited conception of imputed election is further narrowed by a parsimonious comprehension of the circumstances under which 'constructive knowledge' of a disaffirmation power can fairly be ascribed to the power-holding party contrary to the truth. Cases falling outside of such a restrictive conception of imputed election must be administrated according to some legal preclusionary department other than election - for example, estoppel or laches.

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