Election Defined

Abstract In contract law, an ‘election’ conventionally refers to certain finally binding choices exercised outside of court—including to rescind or affirm and to terminate or affirm a contract. This article proposes a new analysis of ‘election’, as a choice between mutually exclusive powers which destroy one another. One power (eg the power to rescind/terminate) changes the power holder’s legal relations with respect to another by destroying a primary set of rights and the other power. The other power (eg the power to affirm) destroys the former power without affecting any pre-existing set of primary rights. This ‘two power model’ explains why affirmation is binding, and thereby gives the concept of ‘election’ some explanatory value.