Document Type


Publication Date

January 1983


The doctrine of election of remedies provides that if a party has two or more inconsistent remedies for a single cause of action, or arising from a single transaction, only one remedy may be ultimately pursued and only one remedy satisfied. The classic, and perhaps most frequent, illustration of the doctrine is presented in contract cases in which the plaintiff alleges that he was fraudulently induced to enter into the transaction. The buyer of the property must choose whether to keep the goods and sue for damages for fraud, thus affirming the contract, or to rescind the contract for fraud and return the property, thus disaffirming the contract. The remedies are inconsistent; the plaintiff may have one or the other, but not both. Such a simple example fails to expose the complexities of the doctrine: the standard of inconsistency, the exceptions to the basic rule, the confusion between the doctrine and parallel, but distinct, doctrines, and the doctrine's relationship to contemporary procedural techniques in both federal and Arkansas courts. The example also ignores the harshness of the doctrine: the unintentional election, the irrevocable election through commencement of litigation, the premature election and the good faith election through acts of ownership. After reviewing related defensive doctrines and the policy factors behind the election of remedies doctrine, this article will examine the standard of consistency that is applied to multiple remedies, the nature and timing of both extra- legal and courtroom elections, and the exceptions that allow a second remedy, although inconsistent with the first, to be pursued. Finally, a suggestion for the judicial future of the doctrine will be offered.

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