ABSTRACT
In contract law, an ‘election’ conventionally refers to certain finally binding choices exercised outside of court—including to rescind or affirm and to terminate or affirm a contract. This article proposes a new analysis of ‘election’, as a choice between mutually exclusive powers which destroy one another. One power (eg the power to rescind/terminate) changes the power holder’s legal relations with respect to another by destroying a primary set of rights and the other power. The other power (eg the power to affirm) destroys the former power without affecting any pre-existing set of primary rights. This ‘two power model’ explains why affirmation is binding, and thereby gives the concept of ‘election’ some explanatory value.
Matthew Frey, Election Defined, Oxford Journal of Legal Studies. Published 2 February 2026.
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