The use and misuse of equitable election

Liu, Qiao (2013) The use and misuse of equitable election. University of New South Wales Law Journal, 36 3: 1053-1074.

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Author Liu, Qiao
Title The use and misuse of equitable election
Journal name University of New South Wales Law Journal   Check publisher's open access policy
ISSN 0313-0096
1839-2881
Publication date 2013
Year available 2013
Sub-type Article (original research)
Open Access Status
Volume 36
Issue 3
Start page 1053
End page 1074
Total pages 22
Editor Andrew Smorchevsky
Place of publication Sydney, Australia
Publisher University of New South Wales, Faculty of Law
Collection year 2014
Language eng
Subject C1
180105 Commercial and Contract Law
Abstract The propriety and even existence of a doctrine of 'equitable election' is a long-standing, little-explored mystery. In Australia, as well as in England, it has been repeatedly pronounced by both courts and commentators that the notion of election comprises multiple doctrines and there is a fundamental divide between election at common law and election in equity, each eliciting a distinct doctrine operating to the exclusion of the other. However, expository analyses of the notion of election, particularly of its theoretical foundation, have thus far been restricted to its manifestation at common law. There is as yet no convincing rendition of the application of that notion in equity. Indeed, it is far from clear in what circumstances equitable election might be invoked and what its precise scope of operation is. In this respect it seems to be less established than common law election. Nevertheless, even still covered in mist, equitable election is equally infected with an abnormality that has haunted common law election since its birth, an abnormality which consists in Anglo-Australian law's persistence in the position that an act of election should be regarded as invariably and innately irrevocable. At the heart of this abnormality lies an inexplicable lack of convincing explanations or justifications for the obligatory effect, or irrevocability, of an election.
Q-Index Code C1
Q-Index Status Confirmed Code
Institutional Status UQ

Document type: Journal Article
Sub-type: Article (original research)
Collections: Official 2014 Collection
TC Beirne School of Law Publications
 
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Created: Thu, 12 Dec 2013, 12:20:55 EST by Carmen Buttery on behalf of T.C. Beirne School of Law