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Legal Memorandum: Doctrine of Election of Remedies

Issue: How is the doctrine of election of remedies applied when seeking to determine whether a party is claiming a double recovery?

Area of Law: Litigation & Procedure
Keywords: Doctrine of election of remedies; Double recovery
Jurisdiction: New Jersey
Cited Cases: None
Cited Statutes: None
Date: 10/01/2007

The doctrine of election of remedies “prohibits a party, in asserting his rights, from occupying inconsistent positions ‘in relation to the facts which form the basis of his respective remedies.'”  Gibbons v. First Fidelity Bank, N.A. (In re Princeton-N.Y. Inv., Inc.), 255 B.R. 376, 386 (Bankr. D.N.J. 2000) (citing Abdallah v. Abdallah, 359 F.2d 170, 174 (3d Cir. 1966)).  The doctrine does not prohibit the pleading and proof of alternative remedies, when the facts support either remedy.  Instead, it bars the party from relying on one set of facts for one remedy and inconsistent facts for the other remedy.  Ibid.  Among other things, the doctrine is directed toward preventing double recoveries.  Ibid.  See, e.g., Deerhurst Estates v. Meadow Homes, Inc., 64 N.J. Super. 134, 146 (App. Div. 1960) (offering example of seeking rescission and confirming the transaction as inconsistent remedies), certif. denied, 34 N.J. 66 (1961).  See generally Lawrence A. Goldman, Trust Not the Filing Officer—The Need for Post Closing Diligence in Secured Financing Transactions, 149 N.J. Law. 41 (1992).

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