MBE Rules · Remedies
Election of Remedies
Cal. Civ. Proc. Code § 526; case law
The rule
Where remedies are inconsistent (e.g., rescission and affirmance-with-damages), the plaintiff must generally elect between them before final judgment. Where remedies are cumulative rather than inconsistent, the plaintiff may pursue both. The doctrine bars double recovery for the same loss.
In plain English
The Election of Remedies rule requires a plaintiff to choose between inconsistent remedies, such as rescinding a contract or affirming it with damages, before the final judgment is made. If the remedies are cumulative and not inconsistent, the plaintiff can pursue both without issue, but they cannot recover twice for the same loss.
Worked example
A buyer discovers that a seller misrepresented the quality of a car they purchased. The buyer can either rescind the contract and return the car or keep the car and seek damages for the misrepresentation. If the buyer chooses to rescind, they cannot later seek damages for the same misrepresentation; they must elect one remedy.
Memory hook
Choose one remedy or risk losing them all!
The trap
Exams may present scenarios where remedies seem cumulative but are actually inconsistent, leading students to mistakenly believe they can pursue both. Watch for key terms that indicate inconsistency.
How examiners test it
This rule often appears in questions that involve multiple potential remedies for a single wrong, testing the candidate's ability to identify inconsistency and the need for election.
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