Reconsidering the Role of Election in Rescission

Abstract

While rescission and restitution are closely related, they are not identical concepts. The election requirement in rescission is a key feature that distinguishes that process from a claim for ‘simple’ restitution. This article considers the election requirement and concludes that it need not be restricted to its contractual operation within the law of unjust enrichment. Election could also play an important role in determining the availability of proprietary restitution for unjust enrichment.

Keywords: common law, property rights, equity, restitution, unjust enrichment, contract law

JEL Classification: K00, K39