AFFIRMATIVE DEFENSES

You’ve been sued. First, you panic. Then, you think about how to defend yourself. One of the best ways to fight back when you are being sued is through affirmative defenses.

What is an affirmative defense? An affirmative defense is a reason why a defendant should not have to pay damages even when the facts in the complaint are true. You can assert affirmative defenses while still denying the allegations in a complaint.

It’s not recommended that affirmative defenses be the first thing you file upon getting served with a complaint. A motion for extension of time and a motion to dismiss are more appropriate first filings. However, your affirmative defenses should be uppermost in your mind early on. They are an essential part of your case strategy.

Affirmative defenses give you something to focus on in discovery. They keep you in the case long after most pro se litigants would have been defeated. If they’re well written, they may even give you leverage in settlement negotiations or a final win. So what do you need to know about affirmative defenses?

Important Things to Know About Affirmative Defenses

It’s often best to file your affirmative defenses with your answer as a single document with two main sections.
A person asserting an affirmative defense is required to meet all the elements (requirements) of that defense. If any element is missing, the affirmative defense can be easily defeated.
Each defense must be expressed as a set of facts.
In order to defeat you, the plaintiff has to strike all of your affirmative defenses.
Listing all viable affirmative defenses makes your case stronger.
Elements of an affirmative defense may vary across jurisdictions, so check to be sure you have the right ones for your jurisdiction.
Asserting an Affirmative Defense: An Example

First, find the elements of the defense you want to assert. Statutes and appellate cases are good resources for this. Then, state any facts in your own case that make up the elements of that defense.

Here’s an example. In your jurisdiction, the affirmative defense of fraud has five elements, (1) a false representation; (2) about a material fact; (3) made with knowledge of its untruth; (4) with intent to deceive; and (5) defendant relied on the representation.

If you want fraud as an affirmative defense in a breach of contract case, how might you assert it?

Sample 1. Affirmative Defense–Fraud

ASSERTION: The plaintiff made a false statement when I signed the contract.

NOT GOOD: This is missing some elements of fraud. It can be easily struck.

Sample 2. Affirmative Defense–Fraud

ASSERTION: The plaintiff committed fraud.

NOT GOOD: This is simply stating a legal conclusion. It can be easily struck.

Sample 3. Affirmative Defense–Fraud

The plaintiff said he owned the property in dispute but knew all along he didn’t. He wanted me to believe his statement so I could enter into a rental contract with him. I thought he owned the land, so I signed the contract.

GOOD: This defense alleges facts that support each and every element of fraud. It includes (1) a false representation; (2) about a material fact; (3) made with knowledge of its untruth; (4) a statement about intent to deceive; and (5) the defendant’s reliance on the representation.

Below is a list of sample affirmative defenses and their elements or requirements. To repeat, the elements and requirements vary by jurisdiction.

1.
Abandonment. In a case of copyright infringement, a defendant can argue that the owner of a trademark cannot exclude others from using that trademark if it has been abandoned.

Sample Elements

the owner, assignor, or licensor of a trademark discontinued its good faith and exclusive use of the trademark in the ordinary course of trade;
the owner, assignor, or licensor intended not to resume using the trademark;
the owner, assignor, or licensor acts, or fails to act, so that the trademark’s primary significance to prospective consumers has become the product or service itself and not the producer of the product or provider of the service; and
the owner, assignor, or licensor fails to exercise adequate quality control over the goods or services sold under the trademark by a licensee.
Source: Manual of Model Civil Jury Instructions for the District Courts of the Ninth Circuit (2017), Section 15.22, pg. 343.

2.

Accord and Satisfaction—an agreement between two parties to accept terms that differ from the original amount of a contract or claim.

Sample Elements

Consideration to support an accord and satisfaction
an offer of partial payment in full satisfaction of a disputed claim
acceptance of the partial payment by the creditor with the knowledge that the debtor offered it only upon the condition that the creditor accepts the payment in full satisfaction of the disputed claim or not at all
Source: Charleston Urban Renewal Authority v. Stanley, 176 W.Va. 591, 346 S.E.2d 740 (1985)

3.

Assumption of Risk—a defendant must prove that the plaintiff knew of a dangerous condition and voluntarily exposed himself to it

Sample Elements

knowledge on the part of the injured party of a condition inconsistent with his safety
appreciation by the injured party of the danger of the condition
a deliberate and voluntary choice on the part of the injured party to expose his person to that danger in such a manner as to register assent on the continuance of the dangerous condition
Sources: Alley v. Praschak Machine Co., 366 So.2d 661 (Miss.1979), citing Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).

4.

Breach of Contract—the act of breaking the terms of a contract without a legal excuse

Sample Elements

a legally enforceable obligation of a plaintiff to a defendant
the plaintiff’s violation or breach of that obligation
injury or damage to the defendant caused by the breach of obligation
Sources: Filak v. George, 267 Va. 612, 619, 594 S.E.2d 610, 614 (2004).

5.

Collateral Estoppel (Issue Preclusion)—a doctrine that bars a party from re-litigating issues

Sample Elements

the issue previously decided is identical with the one presented in the action in question
the prior action has been finally adjudicated on the merits
the party against whom the doctrine is invoked was a party or in privity with a party to the prior adjudication
the party against whom the doctrine is raised had a full and fair opportunity to litigate the issue in the prior action
Source: Betts v. Townsends, Inc., 765 A.2d 531, 535 (Del.2000).

6.

Duress—the act of applying force to illegally compel someone to perform an act

Sample Elements

one side involuntarily accepted the terms of another
circumstances permitted no other alternative
said circumstances were the result of coercive acts of the opposite party
Sources: Urban Plumbing & Heating Co. v. United States (U.S. Ct. of Claims 1969), 408 F. 2d 382, 389-390; Blodgett v. Blodgett, 49 Ohio St.3d 243, 245 (1990)

7.

Equitable estoppel—where a court bars legal relief to a party who has acted unfairly

Sample Elements

a representation by conduct or word
justifiable reliance [on the representation]
a change in position to one’s detriment because of the reliance
Sources: American Bank and Trust Co. v. Trinity Universal Insurance Co., 194 So.2d 164 (La.App. 1st Cir. 1966); Babin v. Montegut Insurance Agency, Inc., 271 So.2d 642 (La.App. 1st Cir. 1972).

8.

Failure of Condition(s) Precedent—an action or actions required to take place (usually by the plaintiff) before the defendant should perform on a contract.

Sample Elements

an act or event occurring subsequent to the making of a contract
that must occur before there is a right to immediate performance and
before there is a breach of the contractual duty
Sources: Hohenberg Bros. Co. v. George E. Gibbons & Co. 537 S.W.2d 1, 3 (Tex.1976).

9.

Failure to Join Necessary or Indispensable Party—a case can be dismissed where a plaintiff has not included (or “joined”) a party whose participation is required.

Sample Elements – A person must be joined in an action if:

in that person’s absence, complete relief could not be accorded among the existing parties; and
the person claims an interest in the subject of the action and is so situated that a disposition of the action in the person’s absence would impede the person’s ability to protect that interest or leave a current party subject to a substantial risk of incurring multiple or inconsistent obligations by reason of the person’s claimed interest.
Source: Hoyt Props., Inc. v. Prod. Res. Grp., L.L.C., 716 N.W.2d 366, 377 (Minn.App.2006).

10.

Failure to Mitigate Damages—an affirmative defense whereby an award of damages is reduced when the plaintiff took no action to avoid or reduce damages.

Sample Elements

the defendant’s breach caused the plaintiff’s harm;
damages could have been avoided with reasonable efforts or expenditures; and
plaintiff did not take reasonable steps to avoid harm.
Source: Judicial Council of California, Civil Jury Instructions 358. Mitigation of Damages, pg. 176.

11.

Force Majeure (Act of God)—A party is not deemed to have failed to meet an obligation under a contract if their performance or failure to perform was caused by events that could not be anticipated and were beyond their control. Note: parties to a contract may write in a force Majeure clause. Then, the clause will typically rule.

Sample Elements

the event was caused by an Act of God, war, strike, riot, electrical outage, fire, explosion, flood, blockade, governmental action, or other catastrophe;
the consequences were unforeseen and unavoidable; and
the defendant acted with due diligence, to prevent damage, harm or injury or further damage, harm or injury.
Sources: Skandia Ins. Co., v. Star Shipping, 173 F. Supp. 2d 1228, 1239 (S.D. Ala. 2001); Kleberg County v. URI, Inc., Tex: Court of Appeals, 13th Dist. 2016.

12.

Fraud—a wrongful act of deception that causes a person to give up property or a right

Sample Elements

a false representation
in reference to a material fact
made with knowledge of its falsity
with the intent to deceive
action is taken in reliance upon the representation
Sources: United States v. Kiefer, 97 U.S.App.D.C. 101, 228 F.2d 448 (1955); Bennett v. Kiggins, 377 A.2d 57, 59 (D.C.1977)

13.

Frustration of Purpose—a situation whereby unexpected circumstances undermine the purpose of a contract

Sample Elements

frustration of the principal purpose of the contract
that the frustration is substantial
that the non-occurrence of the frustrating event or occurrence was a basic assumption on which the contract was made
Source: Sabine Corp. v. ONG Western, Inc., 725 F.Supp. 1157, 1178 (W.D.Okla. 1989).
14.

Judicial Estoppel—a doctrine that bars a party from taking positions in a case that is inconsistent with their positions in a prior judicial proceeding

Sample Elements

sworn, prior inconsistent statement made in a judicial proceeding
the party now sought to be estopped successfully maintained the prior position
the prior inconsistent statement was not made inadvertently or because of mistake fraud, or duress
the statement was deliberate, clear, and unequivocal
Sources: Vinson & Elkins v. Moran, 946 S.W.2d 381, (1997)

15.

Impossibility of Performance—A defendant can allege as an affirmative defense that it was impossible to perform the contract.

Sample Elements

the defendant’ performance of the contract was made impossible;
through no fault of the defendant(s); and
the impossibility was due to unforeseeable events.
Source: Civil Jury Instructions Hawaii, Instruction No. 15.20: Contract – Impossibility of Performance.

16.

Justification (Necessity/Self-defense)—a defense whereby it must be proven that the defendant’s actions were necessary to protect himself or others from harm.

Sample Elements

that defendant was under an unlawful and present, imminent, and impending threat of such a nature as to induce a well-grounded apprehension of death or serious bodily injury;
that defendant had not recklessly or negligently placed himself in a situation in which it was probable that he would be forced to choose the criminal conduct;
that defendant had no reasonable, legal alternative to violating the law, a chance both to refuse to do the criminal act and also to avoid the threatened harm; and
that a direct causal relationship may be reasonably anticipated between the criminal action taken and the avoidance of the threatened harm.
Source: US v. Andrade-Rodriguez, 531 F. 3d 721 – Court of Appeals, 8th Circuit 2008.

17.

Laches—an unreasonable delay in asserting a claim

Sample Elements

unreasonable delay or lapse of time in asserting a right
absence of an excuse for the delay
knowledge, actual or constructive, of the injury or wrong
prejudice to the other party
Source: State ex rel. Meyers v. Columbus 71 Ohio St.3d 603, 605, 646 N.E.2d 173 (1995)

18.

No Adequate Assurances/Anticipatory Breach —A defendant can allege that any failure to keep her promise is excused because, before the defendant was to perform, circumstances indicated that the plaintiff’s promise would not be kept and the plaintiff failed to give adequate assurances.

Sample Elements

the defendant had reasonable grounds to believe that the plaintiff would not or could not keep his promise;
the defendant made a reasonable effort to get assurances from the plaintiff that the plaintiff would keep his promise; and
under the circumstances, the plaintiff did not give adequate assurances within a reasonable time.
Source: Alaska Civil Pattern Jury Instructions, 24.04D: Plaintiff’s Anticipatory Breach By Repudiation — No Adequate Assurances (Affirmative Defense).

19.

Unclean Hands—a doctrine whereby a defendant argues that the plaintiff is not entitled to obtain an equitable remedy (a remedy forcing the defendant to honor a contract) because the plaintiff acted unethically or in bad faith with respect to the subject of the complaint

Sample Elements

the plaintiff is guilty of immoral, unconscionable conduct;
the conduct was relied upon by the defendant; and
the defendant was injured thereby.
Sources: Doe v. Deer Mountain Day Camp, Inc., 682 F. Supp. 2d 324 – Dist. Court, SD New York 2010, quoting Nat’l Distillers & Chem. Corp. v. Seyopp Corp. [17 N.Y.2d 12, 267 N.Y.S.2d 193], 214 N.E.2d 361, 362 (1966)

20.

Novation—the substitution of an old contract with a new one

Sample Elements

the existence of a previously valid contract
the agreement of all the parties to a new contract
the extinguishment of the original contractual obligation
the validity of the new contract
Source: Sans Souci v. Division of Fla. Land Sales & Condominiums, Dept. of Business Regulation, 421 So.2d 623, 630 (Fla. 1st DCA 1982).

21.

Promissory Estoppel—a doctrine by which a defendant can claim that he acted in response to the plaintiff’s promise

Sample Elements

a promise
foreseeability of reliance thereon by the promissor
substantial reliance by the promisee to his detriment
Sources: Aubrey v. Workman, 384 S.W.2d 389, 393 (Tex.Civ. App.—Fort Worth 1964).

22.

Ratification—the act of giving consent to or sanctioning the prior acts of a defendant such that a plaintiff can’t complain about the act later

Sample Elements

approval by act, word, or conduct
with full knowledge of the facts of the earlier act
with the intention of giving validity to the earlier act
Source: Motel Enterprises, Inc. v. Nobani, 784 SW 2d 545 – Tex: Court of Appeals (1990)

23.

Res judicata—a doctrine that prevents a plaintiff from litigating claims that have been either finally adjudicated or could have been adjudicated in a prior claim

Sample Elements

a claim or issue raised in the present action is identical to a claim or issue litigated in a prior proceeding
the prior proceeding resulted in a final judgment on the merits
the party against whom the doctrine is being asserted was a party or in privity with a party to the prior proceeding
Source: People v. Barragan 32 Cal.4th 236, 252-253 (2004)

24.

Unconscionability—the absence of meaningful choice on the part of a party to a contract because the terms are overwhelmingly one-sided in favor of the party with the superior bargaining power

Sample Elements

circumstances surrounding each of the parties to a contract such that no voluntary meeting of the minds was possible; and
unfair and unreasonable contract terms.
Sources: Vistein v. American Registry of Radiologic Techns., Dist. Court, ND Ohio 2007; Collins v. Click Camera & Video, Inc. 86 Ohio App.3d 826, 832, 834, 621 N.E.2d 1294 (Ohio Ct.App.1993).

25.

Undue Influence—a doctrine whereby a contract can be rendered void or voidable if a person is reasonably considered to be in a position of trust in relation to another person and abuses that trust.

Sample Elements

the existence of a confidential or fiduciary relationship between the grantor and a fiduciary;
the fiduciary or an interest which he represents benefits from a transaction; and
the fiduciary had an opportunity to influence the grantor’s decision in that transaction.
Source: Kar v. Hogan, 251 NW 2d 77 – Mich: Supreme Court 1976.

26.

Unilateral Mistake of Fact—A defendant may allege as an affirmative defense that there was no contract because he was mistaken about a material fact.

Sample Elements

the defendant was mistaken;
the plaintiff knew the defendant was mistaken and used that to take advantage of him;
the defendant’s mistake was not caused by the defendant’s excessive carelessness; and
defendant would not have agreed to enter into the contract if he’d known about the mistake.
Source: Judicial Council of California, Civil Jury Instructions (2018), 330: Affirmative Defense—Unilateral Mistake of Fact, pg. 138.
27.

Unjust Enrichment—a benefit for which the one enriched has not paid or worked and morally and ethically should not keep

Sample Elements

plaintiff has conferred a benefit on the defendant, who has knowledge thereof
defendant voluntarily accepts and retains the benefit conferred
the circumstances are such that it would be inequitable for the defendant to retain the benefit without paying the value thereof to the plaintiff
Source: Henry M. Butler Inc. v. Trizec Properties Inc., 524 So.2d 710 (Fla. 2d DCA 1988)

28.

Usury—the illegal act of lending money at unreasonably high rates of interest. Sample Elements

the transaction must be a loan or forbearance;
the interest to be paid must exceed the statutory maximum the loan and interest must be absolutely repayable by the borrower; and
the lender must have a willful intent to enter into a usurious transaction.
Sources: Ghirardo v. Antonioli, 883 P. 2d 960 – Cal: Supreme Court 1994.

29.

Violation of the Real Estate Settlement Procedure Act (RESPA)—In many cases, a defendant can allege as an affirmative defense that the plaintiff violated provisions of a statute. The defendant would review the facts of his case alongside the statute and allege anything that’s missing. A RESPA violation might also be used to allege the failure of conditions precedent.

Sample Allegations

failure to provide the Housing and Urban Development (HUD) special information booklet;
failure to provide a Mortgage Servicing Disclosure Statement and good faith estimate of settlement/closing costs to the defendant at the time of the loan application or within three (3) days thereafter;
failure to provide defendants with an Annual Escrow Disclosure Statement for each year of the mortgage since its inception;
giving or accepting fees, kickbacks and/or other things of value in exchange for referrals of settlement service business, and splitting fees and receiving unearned fees for services not actually performed; or
charging a fee at the time of the loan closing for the preparation of truth-in-lending, uniform settlement and escrow account statements.
Sources: LaSalle Bank, NA v. Shearon, 19 Misc. 3d 433 (2008); Real Estate Settlement Procedure Act (“RESPA”) – 12 U.S.C. section 2601.

30.

Violation of the Truth in Lending Act (TILA)—A foreclosure defendant can allege that the plaintiff violated provisions of TILA. The defendant would review the facts of his case alongside the statute and allege anything that’s missing. A TILA violation might also be used to allege failure of conditions precedent.

Sample Allegations

failure to properly and accurately disclose the amount financed;
failure to clearly and accurately disclose the finance charge;
failure to clearly and accurately disclose the annual percentage rate;
failure to clearly and accurately disclose the number, amounts and timing of payments scheduled to repay the obligation; or
failure to clearly and accurately itemize the amount financed.
Sources: Truth in Lending Act (TILA) – 15 U.S.C. Section 1601; Inge v. Rock Financial Corp., 281 F. 3d 613 (2002).
31.

Waiver—the relinquishment or surrender of a right or privilege

Sample Elements

the existence, at the time of the alleged waiver, of a right, advantage or benefit
the knowledge, actual or constructive, of the existence thereof
an intention to relinquish such right, advantage or benefit
Source: Fetner v. Rocky Mount Marble & Granite Works, 251 N.C. 296, 302, 111 S.E.2d 324, 328 (1959).

Knowing the elements of an affirmative defense and having the ability to properly assert that defense takes you a long way to managing your case strategically. As a pro se litigant, it also helps you gain much respect (but not much love) from your opponent.