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I am a law student and this question is purely academic. You may offer your suggestions irrespective of the region or location and I will look things up further. Thanks.
This is a question about the doctrine of election where a party would be entitled to 1. Having the contract performed. 2. Having the contract rescinded. Where the loss or damages arising out of either of the two remedies are different. Can a party seek one remedy before the court i.e for specific performance of the contract and claim compensation on the basis of what the loss would be if the contract was rescinded?
For example. A wants B to build a cottage for a $10 within 12 months. B agrees and A pays the amount. The contract remains unfulfilled. A may opt to seek for 1. specific performance of the contract and claim damages accordingly or in the alternate 2. Rescission of the contract and claim damages accordingly. In both cases the principles of awarding damages would be different imo and it is my humble submission that the claim for loss or damage in either case would have a different footing.
For instance, for the first remedy A could claim loss/damages on the basis of non delivery of the cottage on time, which may be in the form of actual rent spent elsewhere in a similar cottage. For the second remedy he could claim rescission of the contract and seek $10 with appropriate compensation. Possibly in the form of interest. So in essence, A would have to claim entitlement to either the cottage or the money. He cannot claim entitlement to the cottage and base his losses on his entitlement to the money so as to suggest if he had used money elsewhere he would have made xyz profit.
I am not going into the grounds for which compensation may be awarded. This question is purely about whether the doctrine of election would extend to the manner in which loss or damages is quantified based on the remedy elected by the party.
Thanks.
This is a question about the doctrine of election where a party would be entitled to 1. Having the contract performed. 2. Having the contract rescinded. Where the loss or damages arising out of either of the two remedies are different. Can a party seek one remedy before the court i.e for specific performance of the contract and claim compensation on the basis of what the loss would be if the contract was rescinded?
For example. A wants B to build a cottage for a $10 within 12 months. B agrees and A pays the amount. The contract remains unfulfilled. A may opt to seek for 1. specific performance of the contract and claim damages accordingly or in the alternate 2. Rescission of the contract and claim damages accordingly. In both cases the principles of awarding damages would be different imo and it is my humble submission that the claim for loss or damage in either case would have a different footing.
For instance, for the first remedy A could claim loss/damages on the basis of non delivery of the cottage on time, which may be in the form of actual rent spent elsewhere in a similar cottage. For the second remedy he could claim rescission of the contract and seek $10 with appropriate compensation. Possibly in the form of interest. So in essence, A would have to claim entitlement to either the cottage or the money. He cannot claim entitlement to the cottage and base his losses on his entitlement to the money so as to suggest if he had used money elsewhere he would have made xyz profit.
I am not going into the grounds for which compensation may be awarded. This question is purely about whether the doctrine of election would extend to the manner in which loss or damages is quantified based on the remedy elected by the party.
Thanks.
