A fair reading of the leading Australian authorities on affirmation of a contract by election--especially Elder's Trustee and Executor Co Ltd v Commonwealth Homes and Investment Co Ltd (217) and Sargent v ASL Developments Ltd (218)--tends to buttress the view that the extent of an electing party's knowledge as to his or her legal options relates merely to the inferential worth, or 'unequivocality' (or otherwise), of conduct that is alleged to be 'affirmatory'.
Where my restatement differs from the Coastal Estates taxonomy is entirely in relation to the nature and scope of so-called 'imputed' affirmatory elections: affirmations that are deemed to have occurred between the parties contrary to (or at least irrespective of) fact because there has been unequivocal conduct by the power-holding party that led the other party reasonably to believe that a decision against disaffirmance had in fact been made.
Needless to say, my conception of imputed election encompasses the most benign manifestation of counterfactual affirmation, which is where an affirmatory election is imputed despite the nonattendance of any subjective intention, in the mind of the party entitled to choose, to elect against disaffirmance, when that party is aware both of the event giving rise to the legal disaffirmation power and of the legal disaffirmation power itself.
More problematic are those authorities where it is suggested that an affirmatory election can be imputed to a party when that party lacks not only the intention to exercise a choice, but also knowledge of the inconsistent jural alternatives between which he or she is alleged to have chosen.
However, given that the non-electing party is potentially protected by other legal preclusionary devices in the event of unwitting affirmatory conduct, such situations ought also to be parsimoniously acknowledged and construed.
Potentially, an affirmatory election is imputed whenever the party entitled to elect engages in unequivocal conduct that leads the other party reasonably to believe that an election against disaffirmance has in fact been made.
That allows an election to be imposed fictitiously upon a party without proof not only of an intention actually to exercise an affirmatory election, but also of legal knowledge in relation to his or her jural election options themselves.
(225) (1) Unless context dictates otherwise, I shall use 'disaffirm', or any of its derivations ('disaffirmation', 'disaffirmatory', 'disaffirmance', etc), as a neutral umbrella term to refer to whatever is the opposite of 'affirm' ('affirmation', 'affirmatory', 'affirmance', etc).