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If a court interprets "good reason" too strictly, then there is the risk that it would be impossible for companies to enter into agreements with children online that are not at risk of disaffirmance, regardless of the intent behind a child's misrepresentation.
1946) (refusing to allow disaffirmance where the child appeared to be twenty-five to twenty-six years old, did not advise the other party he was a minor, and certified that he was over twenty-one years old); Stone v.
For example, must the allegedly affirming party actually have 'intended' to choose between the available alternatives, in favour of affirmation (or against disaffirmance), with requisite knowledge of the legally inconsistent alternative of disaffirmation?
It is occasionally suggested that, in order for there to be a binding election to affirm, the electing party must intend not only to make and communicate an unequivocal choice to proceed with the contractual relationship rather than ending it, but also to bear the legal consequence of having so chosen, which is permanent preclusion from reasserting the choice that was not communicated (here, disaffirmance).
(97) That is because once a party communicates objectively an unambiguous choice against disaffirmance of the contract, that party also being sufficiently aware of the facts and of his or her legal options in relation to those facts, the original power to disaffirm is automatically destroyed by operation of law.
Although affirmation need not be 'intentional' in the sense that loss of the relevant disaffirmation power was something that the electing party specifically intended when performing, deliberately and voluntarily, acts that objectively demonstrated an unequivocal decision against disaffirmance of the contract, the authorities are nevertheless unanimous that that objective decision must, to some extent at least, be an 'informed' one: (109)
An election can therefore be imputed on that basis even in the absence of conduct 'adverse to' the non-electing party, that is, if there is unambiguously indicative behaviour leading the non-electing party to believe that a decision against disaffirmance of the contract has finally been made.
'Actual election' requires knowledge both of the facts giving rise to the power to disaffirm the contract in question and of the disaffirmation power itself, together with performative acts that unambiguously indicate that a decision against disaffirmance of the contract has finally been made.
Actual affirmation involves the communication, either expressly or via unambiguous indicative conduct, of a free, deliberate and informed decision, by or on behalf of the one entitled to disaffirm, against disaffirmance of the contract.
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.
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.
(150) Second, the force of the device remains at least equal to the Model Rules; where the Model Rules permit disaffirmance, Part 205 may require disaffirmance.
(A) In general Except as otherwise provided in [section regarding Qualified Financial Contracts (QFC's), leases and real property sales], the liability of the conservator or receiver for the disaffirmance or repudiation of any contract pursuant to paragraph (1) shall be--
(II) in the case of any contract or agreement referred to in [section regarding QFC's], the date of the disaffirmance or repudiation of such contract or agreement.
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