ELECTION OF REMEDIES
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 available FORMS
OF ACTION.An election of remedies arises when
one having two coexistent but inconsistent reme-
dies 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 cho-
sen 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 dam-
ages, 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 simul-
taneously requesting its unmaking—two incon-
sistent demands. The granting of both remedies
would result in the plaintiff recovering the dif-
ference 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 abol-
ished 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 inac-
tivity. 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 per-
son 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
92 ELECTION OF REMEDIES
WEST’S ENCYCLOPEDIA OF AMERICAN LAW, 2nd Editioncompensate 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
