If there has been a conclusive election by the plaintiffs to adopt the liability of one of two persons, alternatively liable, they cannot afterwards make the other liable. The two claims are mutually exclusive or impossible in law. To establish an estoppel it must be shown that the person seeking to assert an estoppel has acted on the faith of the representation: ‘I put rather an emphasis on those last words ‘against those who acted upon the faith that the authority continued.”
An election to avoid a contract is not completed until the decision has been communicated to the other side ‘in such a way as to lead the opposite party to believe that he has made that choice’.
‘Novation’ is a term derived from the civil law and therefore from Roman law. A novation operates where: ‘there being a contract in existence, some new contract is substituted for it, either between the same parties (for that might be) or between different parties; the consideration mutually being the discharge of the old contract.’
Lord Blackburn said: ‘The principle, I take it, running through all the cases as to what is an election is this, that where a party in his own mind has thought that he would choose one of two remedies, even though he has written it down on a memorandum or has indicated it in some other way, that alone will not bind him; but so soon as he has not only determined to follow one of his remedies but has communicated it to the other side in such a way as to lead the opposite party to believe that he has made that choice, he has completed his election and can go no further; and whether he intended it or not, if he has done an unequivocal act – I mean an act which would be justifiable if he had elected one way and would not be justifiable if he had elected the other way -the fact of his having done that unequivocal act to the knowledge of the persons concerned is an election.’
References: [1882] 7 AC 345, [1882] UKLawRpAC 17
Links: Commonlii
Judges: Lord Blackburn, Lord Selborne LC
Jurisdiction: England and Wales
This case is cited by:
- Cited – Jamaica Flour Mills Ltd v The Industrial Disputes Tribunal and Another PC 23-Mar-2005 (, [2005] UKPC 16, )
(Jamaica) The company having been taken over summarily dismissed three employees who complained to their union, and the remaining workforce were called out on strike. There was a disagreement as to whether there was a genuine redundancy situation. . . - Cited – Peyman v Lanjani CA 1985 ([1985] 1 Ch 457, [1985] CL 457)
Application was made for consent to assign a lease. The court was asked whether or not the purchaser of a leasehold interest in a property, who had elected to affirm the contract despite a repudiatory breach by the vendor, could be held to his . . - Cited – Car and Universal Finance Company Ltd v Caldwell CA 19-Dec-1963 (, [1963] EWCA Civ 4, [1964] 1 All ER 290, [1965] 1 QB 525, [1964] 2 WLR 600)
The defendant had sold a car, taking as payment a cheque which was dishonoured; the plaintiffs later bought the car in good faith.
Held: The defendant was entitled to return of the car, even though the original purchaser had disappeared, and . .
These lists may be incomplete.
Last Update: 22 September 2020; Ref: scu.223952
