Election Defined

Journal article

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.

Authors: Frey, M

• Publication status: Published
• Peer review status: Peer reviewed
• Publisher: Oxford University Press
• Journal: Oxford Journal of Legal Studies
• Article number: gqag003
• Publication date: 2026-02-02
• DOI: 10.1093/ojls/gqag003
• EISSN: 1464-3820
• ISSN: 0143-6503
• Language: English
• Keywords: private law; contract law; obligation; common law; commercial law