Waiver Distributed Among the Departments, Election, Estoppel, Contract, Release

This historic book may have numerous typos and missing text. Purchasers can download a free scanned copy of the original book (without typos) from the publisher. Not indexed. Not illustrated. 1917 Excerpt: ... word were substituted for the vagueness associated with waiver, the English Privy Council could hardly have made such misapplication of Lord Justice Bowen's dictum as to have decided the case of The City of Toronto v. Russell1 as it did. Vendor And Purchaser Of Real Estate. Is not an instance of waiver to be found in a case in which a vendor of real estate delivers his abstract after the period prescribed by the contract, and the purchaser receives it and returns requisitions? Has not the purchaser waived the time limit?2 No: the case is one of election. When the time elapsed, the purchaser had the right to elect (as in so many other cases) whether he would, or would not, proceed with the purchase--the vendor was offering to proceed and the purchaser could agree or decline. If he elected to stop, we would not say that he had waived his right to proceed; and when he elects to proceed, why should we say that he waived his right to stop? He waived --he threw away or relinquished--as truly in one case as in the other. He had a right of election between two positions, and he chose one. He did not waive or relinquish the other. He never had it. He had a choice, and he did not waive that. He exercised it. The case is precisely similar, in principle, to that which arises in the case of a contract which permits a vendor to rescind it rather than answer questions of a certain character. When the questions are put, he may elect what he will do. And it is said that if the vendors once elect to answer the objections, they are forever thereafter precluded from exercising the option given to them... to rescind the contract. 1 1908, A. C. 493; 78 L. J., P. C. 1; 99 L. T. 7...