Definition
Or remedies refers to the situation in contract law — and more broadly in civil litigation — where a party is entitled to pursue more than one available remedy but may ultimately obtain only one, because the remedies are legally inconsistent with each other or because recovering under one forecloses recovery under another. The phrase captures the disjunctive structure of relief: a plaintiff may seek remedy A *or* remedy B, but typically not both.
The concept operates at two levels. First, it describes the pleading stage, where a party may plead alternative or inconsistent remedies in the same action — asserting, for example, both damages for breach and rescission of the contract — without being required to elect between them prematurely. Second, it describes the enforcement stage, where the law requires a choice before or upon judgment, because accepting one remedy (such as restitution upon rescission) is logically incompatible with enforcing another (such as damages for the contract's benefit of the bargain).
The practical importance of "or remedies" lies in the doctrine of election of remedies, which holds that once a party has made an informed choice between inconsistent remedies and acted in a manner that affirms that choice, the election is binding and the alternative remedy is abandoned.
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Common Confusion
"Or remedies" is frequently conflated with cumulative remedies. Cumulative remedies are remedies that may be pursued simultaneously or in sequence, with recovery under one not barring recovery under another. Or remedies, by contrast, are mutually exclusive — the plaintiff's gain under one defeats the legal basis for the other. Whether two remedies are or-remedies or cumulative remedies depends on whether they rest on legally inconsistent theories (e.g., affirming versus disaffirming the contract), not simply on whether both arise from the same transaction. Researchers should be cautious: historical sources often group these concepts loosely under "election," without clearly distinguishing which remedies are truly inconsistent and which merely overlap.
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Why It Matters in Research
The phrase "or remedies" does not appear as a standalone doctrinal term in most modern legal databases. Researchers searching for this concept will typically need to enter through the doctrine of election of remedies, or through the related concepts of rescission versus damages, affirm versus disaffirm, and alternative pleading. The phrase is more likely to appear in older treatise indexes and headnotes than in modern judicial opinions, which tend to frame the issue as "election" or "inconsistent remedies."
Historical sources — including Bouvier's — treat or remedies as essentially a sub-question within the broader contractual remedies framework. Researchers using 19th- and early 20th-century digests should be aware that the election doctrine was applied more rigidly in that era: courts sometimes held that even initiating one line of relief, such as filing an action for rescission, constituted an irrevocable election, foreclosing a later shift to damages. Modern doctrine in most jurisdictions has relaxed this, allowing amendment and reversal of position until actual prejudice to the opposing party or final judgment.
The corpus distinction matters here: in older materials, the or-remedies problem appears most sharply in cases involving fraud (where a defrauded party must choose between rescinding and suing for deceit), in cases involving breach of warranty (rescind or sue for damages), and in cases involving conversion of contract obligations. Modern commercial law materials, including Article 2 of the UCC, have further restructured the landscape by explicitly permitting cumulative remedies unless otherwise stated — meaning the or-remedies analysis now depends partly on whether the governing law is common law contract, UCC, or equitable doctrine.
Researchers should connect this term directly to the election of remedies entry in the encyclopedia and then trace the specific remedy pairs relevant to their facts: rescission/restitution as one pole, and expectation damages as the other.
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Historical Dictionary Support
Bouvier's Law Dictionary does not define "or remedies" as a standalone entry. The source material directs researchers to general contract treatise authorities: Addison on Contracts, Story on Contracts, Parsons on Contracts, and Wait's Actions and Defenses. This points to the 19th-century understanding that or remedies was not a discrete doctrine but a descriptive label for the disjunctive structure of remedial choice within contract law generally.
The treatise tradition reflected in Bouvier's approached the subject through the lens of what a party could demand upon breach — whether the aggrieved party could compel specific performance *or* recover damages, rescind *or* affirm, seek restitution *or* sue on the contract. The "or" was structural, not merely rhetorical: it signaled that the remedial system had built-in exclusions depending on the theory of recovery pursued.
What the historical sources collectively miss is any systematic framework for distinguishing when remedies are truly inconsistent versus merely alternative in pleading. That analytical step — distinguishing logical inconsistency from practical overlap — was largely left to courts on a case-by-case basis and only partially rationalized in later Restatement commentary.
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Jurisdictional Note
The strictness of election of remedies doctrine varies significantly by jurisdiction. Some states apply a rigid early-election rule; others follow the modern approach requiring actual prejudice before an election becomes binding. Equity courts historically had more flexibility than courts of law. Researchers should verify the governing rule in the relevant jurisdiction before assuming that pleading one remedy forecloses another.
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Encyclopedia Cross-Reference
Remedies — Overview and Election of Remedies (The Law Mind Contracts & Commercial Law Encyclopedia)
Remedies — Rescission and Restitution as Equitable Remedies (The Law Mind Contracts & Commercial Law Encyclopedia)
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