Legal Definitions - waiver by election of remedies

Waiver by Election of Remedies is a legal principle that prevents a party from pursuing two different legal solutions (remedies) for the same problem when those solutions are contradictory or inconsistent with each other. Once a party takes a clear, decisive action to pursue one of these inconsistent remedies, they are considered to have given up (waived) their right to pursue the other.

This principle often arises when a plaintiff has multiple potential legal avenues to address a wrong, but choosing one path inherently negates the possibility of choosing the other. The "election" occurs when the party performs an act that clearly demonstrates their intent to pursue one specific remedy over another, thereby waiving the inconsistent option.

Examples:

• Scenario 1: Fraudulent Sale of Property

  Imagine a person, Alex, buys a piece of land from a developer, believing it includes access to a private lake, based on the developer's explicit assurances. Later, Alex discovers the lake access was fraudulently misrepresented and is not part of the property deed.

  • Inconsistent Remedies: Alex has two primary legal options:

    • Rescission: Alex could ask a court to cancel the sale, return the land to the developer, and get the purchase money back. This treats the contract as if it never happened due to the fraud.
    • Damages for Fraud: Alex could keep the land and sue the developer for the monetary difference between what was paid (assuming lake access) and the actual value of the land without lake access. This affirms the contract but seeks compensation for the deception.

  • Decisive Act and Waiver: If Alex files a lawsuit specifically demanding the return of the purchase money and offering to return the land (seeking rescission), this is a clear election. By pursuing rescission, Alex has waived the right to later claim damages for fraud while keeping the land, because these two outcomes are contradictory. Alex cannot both undo the sale and keep the property while seeking compensation for its misrepresented value.

• Scenario 2: Breach of Contract for Services

  Consider a small business, "Creative Designs," that contracts with a client, "Marketing Pros," to create a new website by a specific launch date. Creative Designs fails to deliver the website on time and the quality is significantly below the agreed-upon standards.

  • Inconsistent Remedies: Marketing Pros has a few options, but two might be inconsistent:

    • Specific Performance: Marketing Pros could ask a court to order Creative Designs to complete the website exactly as promised, essentially forcing them to fulfill the contract.
    • Monetary Damages: Marketing Pros could terminate the contract due to the breach and sue Creative Designs for the financial losses incurred (e.g., costs to hire another developer, lost revenue due to the delayed launch).

  • Decisive Act and Waiver: If Marketing Pros sends a formal letter to Creative Designs stating they are terminating the contract due to the breach, immediately hires a different web developer to finish the project, and simultaneously files a lawsuit for the financial damages incurred, this constitutes a decisive election. By terminating the contract and seeking damages, Marketing Pros has waived its right to later demand that Creative Designs specifically perform the original contract, as the contract has now been ended by Marketing Pros' actions.