There are many defenses to a claim for breach of contract. These defenses may be divided into two separate groups: Affirmative Defenses and defenses that amount to a denial. Affirmative defenses do not bring in new facts to contest the Plaintiff’s claims, in fact, an affirmative defense admits the claims made by the Plaintiff, but asserts that even if those facts are true, the claim fails anyway. A widely used affirmative defense is the statute of limitations. The defendant admits the facts of the claim, but affirmatively defends against the claim arguing that the Plaintiff did not file the suit within the time allowed, so it is forever barred. Denial defenses simply deny a material fact or element of the claim. For example, the defendant could deny that the parties entered into an enforceable contract because there was no offer and acceptance, or no consideration for the contract.
Here are some of the more well known affirmative defenses and a brief explanation of each.
Accord and Satisfaction—Means the parties have entered into a separate settlement agreement that is different than the terms of the contract they entered into.
Arbitration and Award – The same claim or dispute of the parties was previously submitted to arbitration and an award (or judgment) was entered. Courts tend to enforce arbitration awards.
Assumption of Risk—When the plaintiff has voluntarily agreed to, or consented to, the risk involved in the transaction. If a person swims across a pond after being told that man-eating crocodiles are in the water waiting for her, they have assumed the risk.
Contributory Negligence—the defendant argues that the plaintiff’s own actions contributed to the damages incurred, whether in whole or in part.
Discharge in Bankruptcy—Once a claim has been discharged in bankruptcy, the person who filed for bankruptcy cannot be sued again for the same claim.
Duress—when one party forces the other one to do something, for example, holding a gun to their head to make sure they sign the contract.
Estoppel—Prevents a party from changing their story later, to the detriment of the other party. For example, if a lawyer drafts a five year lease for himself to live in a landlord’s house, lives in the house for four years, then tries to invalidate the lease because it was not notarized, he will be estopped from denying the validity of the lease.
Failure of Consideration—meaning that the contract was once supported by consideration, but that through time and circumstances, the consideration has disappeared or become worthless.
Fraud—when one person tells the other party a material misrepresentation that was false, the speaker knew it was false, and it was made with the intention of making the other person rely on the false statement and which caused the person to act to their detriment. Cases involving fraud commonly involve issues of deceptive and unfair trade practices particularly in commercial litigation matters.
Illegality—Illegal contracts are not enforceable, for example a contract to kill someone or a contract requiring a person to steal a car, are illegal and are not enforceable.
Injury by Fellow Servant—historically, this defense prohibited or limited or barred an injury claim by one employee of a business against another employee of the same business. Also called the “fellow servant rule.”
Laches—a somewhat antiquated defense applicable in equitable claims, which can bar certain claims that are “stale” or were not brought for an unusually long time.
License—refers to the situation where one party was originally given the right to use something or to be on someone’s property, which is now the subject of a lawsuit.
Payment—In a lawsuit alleging nonpayment, the defendant can assert that the claim was extinguished through a previous payment not mentioned in the lawsuit.
Release—Alleges that the claim asserted by the plaintiff was the subject of a release that Plaintiff signed previously is subject to
Res Judicata—The defense precludes a party from re-litigating issues that have previously been submitted to a court.
Statute of Frauds—Prevents a party from enforcing certain contracts that are required to be in writing, or to be properly witnessed.
Statute of Limitations—the law provides an injured party a certain amount of time to file their lawsuit, otherwise it is forever barred. The statute of limitations for a contract action in Florida is five years from the date of the breach.
Waiver—Certain claims may be voluntarily relinquished, if done so knowingly by the party who possesses the claim.
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