Doctrine Of Election Flashcards
What is the doctrine of election
Lord Eldon in Ker VWanchope noted that no person can accept and reject an instrument. You cannot benefit from an instrument and disregard the burden placed by the same instrument.
What is the doctrine of election
The doctrine of election requires a party to choose between mutually exclusive courses of action. The principle is that there is an implied condition that he who accepts a benefit under an instrument must adopt the whole of it, conforming to all its provisions and renouncing every right inconsistent with it.
What are the necessary for the doctrine of election
Conditions Necessary for the Doctrine In applying the doctrine, the following conditions must be present:
(1) The donor must have given his own property to another person.
(2) The two gifts must have been made in the same instrument.
(3) The donor’s property which is given to the elector must be freely alienable. fit is inalienable, the owner cannot comply with the wishes of donor.
For example, if the property which the testator purported to give is in foreign land and the lex situs prohibits compliance with the will.”
(4) The elector’s property which the donor purports to dispose of must be freely alienable. An example is where the property sought to be disposed of is family members interest in a family property. Under customary law, a family property is indivisible and a member of the family has no alienable interest in the family property,” or where the property is owned by a married woman. 33
(5) The donor must manifest a clear intention on the face of the instrument to dispose of the elector’s property. The principle is that the donor intends that his instrument shall take full effect.” However, this may be repelled by the declaration in the instrument itself of a particular intention inconsistent with the presumed and general intention.’
Mode of election are
Election may be either express, in which case there is no question or difficulty, or it may be implied from conduct. Election by conduct will depend on the circumstances of each particular case. For a binding election, there must be a deliberate choice made with full knowledge of the rules relating to election and the relevant circumstances including the relative value of the properties. Thus, an election made under a mistake of fact will not be binding.
What is the doctrine of specific performance based off on
Equity imputes an intention to fulfil an obligation
The doctrine of performance is preventing what?
The doctrine aims at preventing a beneficiary from claiming double portions The doctrine becomes operative where a person has covenanted to do an act and he does something else which in the eye of equity, is deemed to be identical to or in furtherance of the performance of his obligation under the covenant, he will be presumed to have done that act with the intention of performing his obligation under the covenant.
The doctrine of performance is concerned with notional rather than actual performance. Under the doctrine, if covenantor has not fully performed his covenant but has done some other act which may fairly be supposed to have been a step towards performance, that step will be treated as having been taken in performance of the covenant and the property concerned will be treated as being bound by the obligations of the covenant.
What is Approbate and reprobate in English law?
To accept and reject. A person is not allowed to accept the benefit of a document (e.g. a deed of gift) but reject any liabilities attached to.
