Definition
In law, "alternative" describes an arrangement, command, obligation, or pleading that presents two or more options, where satisfaction of one discharges the whole. The term appears across multiple legal contexts:
1. Alternative obligation. An obligation in which the obligor may perform one of two or more specified acts, with performance of any one constituting full satisfaction. The choice of which act to perform typically belongs to the obligor unless the contract expressly provides otherwise.
2. Alternative contract. A contract whose terms permit performance by any one of several specified acts at the election of the party bound to perform.
3. Alternative writ. A writ commanding the recipient to do a specific thing or, in the alternative, to appear and show cause why it should not be done. The alternative mandamus is the leading example: it directs compliance or requires the respondent to justify non-compliance before the court.
4. Alternative pleading. A pleading that asserts two or more inconsistent sets of facts or legal theories in the alternative. Under common law practice, alternative pleadings were disfavored and often held defective; modern procedural rules generally permit them.
5. Alternative judgment or decree. A judgment rendered in the alternative form — commanding one act or another. Such judgments were traditionally held invalid or at least irregular under common law, on the ground that the court's command must be certain and definite.
Common Language
Modern common usage (Wiktionary): Relating to a choice between two or more possibilities; presenting options; something outside the mainstream or traditional.
Historical common usage (Webster's 1913): Offering a choice of two things; disjunctive.
The common meaning captures the general sense of choice, but the legal use is more precise and consequential. In law, which party holds the right of election, and under what conditions the alternative collapses into a single obligation, are questions with enforceable answers. A contract that is loosely described as giving "alternatives" may be legally an alternative obligation (election in the obligor), a facultative obligation (a different structure entirely), or something else. The gap between casual use and legal classification matters when a party defaults or when one of the alternatives becomes impossible.
Common Confusion
Alternative obligation vs. facultative obligation. An alternative obligation involves two or more objects of performance, any one of which satisfies the whole; both (or all) objects are in contemplation from the outset. A facultative obligation involves a single primary performance, with a substituted performance available only at the obligor's election. The distinction controls what happens when one of the options is destroyed or becomes impossible: in an alternative obligation, impossibility of one option may or may not extinguish the whole depending on fault and which party held the election; in a facultative obligation, destruction of the substitute leaves the primary obligation intact. Historical sources do not always draw this line clearly.
Alternative pleading vs. inconsistent pleading. Modern rules (e.g., Federal Rule of Civil Procedure 8(d)) expressly authorize pleading in the alternative and asserting inconsistent claims. Researchers reading common law materials will find "alternative pleadings are ill" (Anderson) — meaning void or defective — a rule that does not survive into modern practice.
Why It Matters in Research
The word "alternative" operates differently depending on era and procedural posture. A researcher working with pre-code common law sources will encounter hostility to alternative pleadings and alternative judgments that is simply not present in materials from the mid-twentieth century onward. The shift in pleading rules is one of the sharpest reversals in procedural doctrine, and a holding that an alternative pleading was defective under common law practice tells you nothing about modern validity.
For the alternative writ, the distinction between the alternative mandamus (the first writ, requiring action or cause shown) and the peremptory mandamus (issued after cause is heard and found insufficient) is essential. Sources that simply say "mandamus" without specifying which stage may be describing structurally different writs with different procedural postures.
In contract research, the label "alternative contract" or "alternative obligation" may be applied inconsistently across jurisdictions and time periods. The controlling question is always who holds the right of election and what the default rule is when one option fails — answers that require consulting the governing jurisdiction's law, not just the label.
The term also appears as a modifier in modern compound legal concepts — alternative minimum tax, alternative dispute resolution, alternative sentencing — that have no connection to the classical doctrine of alternative obligations. Researchers should treat these as independent terms that happen to share the modifier.
Historical Dictionary Support
The historical dictionaries are broadly consistent on core doctrine. All five sources agree that "alternative" in legal usage centers on choice or election between two or more things, and that the alternative writ — particularly the alternative mandamus — is the paradigm procedural example. Bouvier and Burrill both anchor the alternative writ to Blackstone, treating it as a writ requiring action or the showing of cause, with the peremptory writ following if cause is insufficient.
Anderson adds the sharpest doctrinal warning: "Alternative pleadings are ill; and alternative judgments, decrees, and sentences are, as a rule, invalid." This reflects strict common law pleading doctrine and stands in direct contrast to the modern permissive approach. Researchers should note that Anderson's categorical statement was a description of common law practice, not a universal legal truth.
Black's (2nd Ed.) is the only historical source to define alternative contract with a case citation (Crane v. Peer), giving it slightly more doctrinal texture than the others. None of the historical sources address alternative dispute resolution, alternative minimum tax, or alternative sentencing — these are entirely modern compounds requiring separate treatment.
Jurisdictional Note
The common law aversion to alternative pleadings and alternative judgments has been substantially abrogated in American federal courts and most state courts following code pleading and notice pleading reforms. Civil law jurisdictions (Louisiana notably) have more developed treatment of alternative versus facultative obligations drawn from civilian tradition, and researchers should not assume common law doctrine maps cleanly onto those systems.
Encyclopedia Cross-Reference
Community Service and Alternative Sentencing — The Law Mind Criminal Law Encyclopedia (criminal_225)
Alternative Minimum Tax: Individuals — The Law Mind Tax Encyclopedia (tax_7)