Abstract:
This article is about commercial choices between two inconsistent rights, or courses of action, which are available to a party under his contract after a breach by the other contractual partner. In legal terminology the choice is known as “election” but it is often labelled as “waiver”. Invariably, it has been confused with “estoppel”. The nature and extent of knowledge required for the election to be operative, and whether there are any limits of the right to elect, are examined in Part II of the article. The different strands of opinion that are said to arise from judgments are reconciled. Problems that emerge from the use of an all embracing term “waiver” in substitution of either “election” or “estoppel” are dealt with under Part III. The author explains the misconceptions of using “waiver”, demystifies the concept of “election”, and provides guidance for commercial people to realise consciously when their election will result in intended legal consequences.