Election is simply an 'effect which the law attributes to conduct', and any affirmatory intention that happened to accompany a party's contract-recognizing conduct at the relevant time is in point of fact superfluous to the legal preclusionary consequences that follow upon that party's so acting.
C The Current Legal Position in Australia on a Knowledge-of-Rights Requirement for Affirmatory Election
(138) Since Sargent v ASL Developments Ltd itself involved a contractually conferred right of rescission, Stephen J held that it was unnecessary for him to decide in general on the requisite knowledge for a binding affirmatory election, as the vendors' knowledge of the facts giving rise to the inconsistent legal alternatives sufficed for the election doctrine to apply in the case before the bench.
Although it is of course vital to the operation of both the election and estoppel doctrines that there be 'unequivocal' words or conduct by one party causing the other party reasonably to believe that the former was pursuing one jural alternative rather than the other, (149) and that 'exercising rights under the contract adversely to the other party' is ipso facto 'unequivocally affirmatory conduct', his Honour's additional reference to the electing party 'having a knowledge of the facts sufficient to alert him to the possibility of the existence of his alternative right' is both puzzling and problematic.
Accordingly, in my view, whether genuine ignorance of one's legal position can serve as an advantage--here to preserve a disaffirmation power despite overtly affirmatory conduct--should be seen to depend on a range of circumstantial considerations.
Although, of course, no adverse inference can be drawn simply from the allegedly electing party's failure to waive privilege in his or her solicitor's file, (175) the mere fact that that party had received advice from a competent solicitor in relation to the matter might contribute to a permissible inference that his or her legal position was actually known at the time of the alleged affirmatory conduct.
Finally, the above fears seem even more overstated in the light of the practical reality that the risk of electing parties successfully invoking legal ignorance so as to avoid the imputation of an affirmatory election is likely to affect a very small class of potential case indeed.
VI TAXONOMIZING AFFIRMATORY ELECTION (II): A SUGGESTED RESTATEMENT OF LEGAL PRECLUSION BY WAY OF ELECTION