This article explains what an “affirmative defense” is and what is meant by each of the common affirmative defenses.
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What is an Affirmative Defense?
A “defense” is a statement asserted by a party in litigation regarding why they should not be liable for the claim against them. A defense is “affirmative” if it must be stated at the beginning of the case in the pleadings. If an affirmative defense is not stated immediately, it may be forever lost.
In responding to a pleading, a party must affirmatively state any avoidance or affirmative defense, including:
Accord and satisfaction, arbitration and award, assumption of risk, contributory negligence, duress, estoppel, failure of consideration, fraud, illegality, injury by fellow servant, laches, license, payment, release, res judicata, statute of frauds, statute of limitations, and waiver.
Fed. R. Civ. P. 8(c).
General Affirmative Defenses
Running of the Statute of Limitations
The plaintiff has a limited amount of time to sue you. For more information, see this guide.
Failure to State a Cause of Action
Every lawsuit must have at least one cause of action. A cause of action is a legal theory upon which a lawsuit can be based. Each cause of action has certain parts that must be written in the complaint and proved at trial. If you think the plaintiff has not written any part of their cause or causes of action, you can use this defense.
Waiver and Estoppel
These two defenses are closely related. They are based on the concept that if someone “says one thing but does another,” he or she may be held to what was first said. If the plaintiff told or promised you something regarding the money you are being sued for, and you relied upon the statement or promise, but plaintiff failed to honor it, these defenses may apply to you.
Unclean Hands (only used in equity)
The law requires those coming into the court seeking justice to do justice themselves. This concept is called “clean hands.” If you believe the plaintiff has taken advantage of his or her own wrong doing in relation to the lawsuit, you may raise this defense.
The law requires people to act promptly to enforce their rights. If the plaintiff waited a long time to file a lawsuit, without having a good reason for the delay, and the delay has made it harder for you to defend the case, this defense may apply to you.
Failure to Mitigate Damages
Plaintiffs should not be able to collect money from you if they could have prevented the damage. For example, if you break a year-long lease, a landlord may be required to find a new tenant as soon as possible. You may still be responsible for the difference in the rent and the time the unit was not rented. But the landlord cannot just wait out the year and then try and force you to pay the whole year’s rent.
You can use this defense if giving the plaintiff the amount they request in the lawsuit would result in the plaintiff receiving more money than s/he is entitled to.
Prevention of Performance
If you were prevented from doing your part of the contract by the plaintiff this affirmative defense may apply to you.
Act of God
If you were prevented from doing your part of the contract due to a natural occurrence (earthquake, flood, storm), this affirmative defense may apply to you.
Discharge by Bankruptcy
If you filed bankruptcy, and the claim you are being sued for was included in your bankruptcy, you may have been released from paying the claim when your bankruptcy case was over. Check with your bankruptcy attorney to find out if the plaintiff’s claim was “discharged” or released by the bankruptcy court. Include the bankruptcy case information including the date of discharge and the case number. Case # ______________________, discharge date: ___________.
Failure to Exhaust Administrative Remedies
You may use this defense if the plaintiff was supposed to pursue different administrative avenues but failed to do so before suing you. This defense is most commonly used by government agencies or businesses.
Failure to Pursue Alternative Dispute Resolution (ADR)
You may use this defense if the person suing you failed to request mediation or arbitration as required before filing a lawsuit. CAUTION: If you think this affirmative defense applies to you, and you want to enforce an arbitration clause in the contract which is the subject of the lawsuit, filing an answer alone, without filing a petition to compel arbitration at the same time, may cause you to waive your right to have the dispute resolved through arbitration. You can get a form for filing a petition to compel arbitration from a court’s self-help center.
Lack of Privity
You can raise this defense if there was no contract or agreement between you and the person suing you, or the debt was not properly assigned to the person suing you.
Statute of Frauds
The “Statute of Frauds” is a law, or set of laws, that requires many different types of contracts to be in writing. There are some exceptions to the Statute of Frauds, but if you think the claim the plaintiff is suing you for arose out of an agreement that was required by law to be in writing, but was not in writing, this defense may apply to you. Learn more about the Statute of Frauds.
Parole Evidence Rule
The law states that when people put their agreements in writing, the written contract takes priority over whatever else is said in relation to the agreement. If the plaintiff’s claims are based on a verbal statement that contradicts, or falls outside the written terms of the agreement, you may raise this defense.
Frustration of Purpose
If enforcement of the actual contract would go against the very purpose of the agreement you made with the person suing you, you may raise this defense.
Failure of Condition Precedent
Sometimes one party’s performance of a contract is dependant on someone else first performing an obligation, or something else happening first. If someone else was required to do something before you had to perform your obligations under the contract but failed to do it, or something was required to happen before you had to perform but it did not happen, you may raise this defense.
Breach by Plaintiff
If the person suing you broke their end of the contract first, and you believe you were therefore excused from performing your part, you can raise this defense.
If the person suing you canceled the contract, or pulled out of the deal before you had a chance to perform your part of the contract, you can raise this defense.
Attorney’s Fees Not Recoverable
The law only allows the winning side in a lawsuit to be reimbursed the money they paid for attorney’s fees if the contract upon which the lawsuit is based says that the winning side can recover attorney’s fees, or a statute (law) says the winning side can recover attorney’s fees. If the plaintiff has asked for reimbursement of attorney’s fees but there is no contract provision or law that entitles plaintiff to recover attorney’s fees, you can raise this defense.
Improper Notice of Breach
You may use this defense if the plaintiff did not tell you before suing you that you were violating the terms of the contract, and therefore denied you the opportunity to fix the problem. In this defense, notice of breach may need to be required in the contract, and the other side’s failure to give you notice must have deprived you of your opportunity to fix the problem.
You may use this defense if the plaintiff owes you money, or the plaintiff failed to credit you for money you already paid.
You may use this defense if the plaintiff is charging higher interest than the law allows.
Accord and Satisfaction
You may use this defense if you and the plaintiff agreed to settle the claim for a lower amount than the lawsuit is asking for and you have paid the lower amount.
Contract Void as Against Public Policy
If the contract required a party to perform an illegal act or to violate a law, then it may be unenforceable, and this defense may apply.
Affirmative Defenses for Service Contracts
Failure of Consideration
You may use this defense if the person suing you never performed the services that they are suing you for.
Lack of Consideration
You may use this defense if the services provided by the person suing you were so poorly performed that any further payment to that person would be unreasonable and unfair.
Breach of Express Warranty
This defense applies if the person suing you failed to honor a promise or written warranty for services.
Breach of Implied Warranty
This defense applies if the services provided by the person suing you failed to meet the custom and standard within the industry.
Affirmative Defenses for Contracts Selling Goods, Products, and Things
Failure of Consideration
You may use this defense if the goods or products you bought from the person or entity suing you are completely defective.
Lack of Consideration
You may use this defense if the goods or products you purchased were so defective that enforcement of the contract would be unreasonable and unfair.
Breach of Express Warranty
This defense applies if the goods or products you purchased were defective, you requested their repair within the written or promised warranty period, and the plaintiff failed to make the repair.
Breach of Implied Warranty
This defense applies if the goods or products purchased from the person or entity suing you could not be used for the purpose for which they were sold. You tried to return the goods but the seller refused to accept them.
No Deficiency Judgment Permitted by Law
If the complaint is asking for money after the goods or property that served as collateral on a loan were sold, and the sale was not properly noticed or conducted, this defense may apply. Plaintiff, or the person or entity that assigned the claim to plaintiff, is not entitled to sue for extra money after the sale of the goods or property if the law does not allow for a deficiency judgment, or there was improper notice of sale, or the sale was conducted improperly.
Failure to Act in a Commercially Reasonable Manner
If the person who is suing you failed to follow the procedures required by the Uniform Commercial Code in selling you goods or products, this defense may apply.