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Part III Rescission By Election and By Court Order, 11 Electing to Rescind

Dominic O’Sullivan

From: The Law of Rescission (3rd Edition)

Dominic O'Sullivan KC, Steven Elliott KC, Rafal Zakrzewski

From: Oxford Legal Research Library (http://olrl.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved.date: 13 April 2024

Avoidance of contract — Illegality and contract — Termination/unwinding of contract — Validity of contract

This chapter studies the process of electing to rescind. It starts with the validity of a voidable transaction until it is rescinded, especially since the party entitled to rescind would not be obliged. An election to disaffirm never results in a rescission, but proprietary rights to restitution are conferred when a transaction is rejected for fraud. As a general rule, rescinding election includes notifying the opposite party in the transaction of one's intent. Retaking possession of goods sold unambiguously asserts rights incompatible with a subsisting contract. The chapter also explains how an election to rescind could be achieved through pleading. When a transaction is voidable in equity, the election to rescind could only be effective under the conditions of fraud.

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