Election of Remedies

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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 availableforms 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.