Rethinking election: a general theory

Liu, Qiao (2013) Rethinking election: a general theory. Sydney Law Review, 35 3: 599-625.

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Name Description MIMEType Size Downloads
Author Liu, Qiao
Title Rethinking election: a general theory
Journal name Sydney Law Review   Check publisher's open access policy
ISSN 0082-0512
Publication date 2013-09
Sub-type Article (original research)
Volume 35
Issue 3
Start page 599
End page 625
Total pages 27
Editor Shae McCrystal
Arlie Loughnan
Place of publication Rozelle, NSW, Australia
Publisher Lawbook Co.
Collection year 2014
Language eng
Subject C1
180105 Commercial and Contract Law
Abstract This article makes an overdue attempt to rationalise the notion of 'election' as applied by Anglo-Australian courts. It addresses a fundamental paradox in existing English and Australian law: while ostensibly resisting any effort to bring all election cases under a general theory, Anglo-Australian courts conceptualise an election in a way little short of radical, holding it invariably as a unilateral, informed choice between inconsistent options, which in itself furnishes a distinct legal basis for the irrevocability of such a choice. The article suggests that all election cases must be united under a general theory, but this theory should not be given the normative force the law currently espouses. It substantiates this suggestion by way of a critical review of two well-established categories of election at common law and concludes that disaffirmation and affirmation of contract are acts of distinct natures and cannot be accommodated under the same notion; election is ill-suited for determining whether a choice to sue an undisclosed principal or its agent is binding. In both cases it is estoppel, rather than election, that holds the best promise to justify, if at all, the irrevocability of the choice made. Consequently, the normative conception of election should be discarded and the general theory be reformulated in descriptive terms, parting with irrevocability as one of its essential elements.
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, 12:43:53 EST by Carmen Buttery on behalf of T.C. Beirne School of Law