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Raising Affirmative Defenses to Fight Breach of Contract Claims

If someone sues you or your business for breach of contract, your response can go beyond simply denying the plaintiff’s claims against you. You also can assert what are known as affirmative defenses. These are essentially reasons why your actions were permissible and why the plaintiff should not prevail. They are called affirmative defenses because you have the burden of proving them.

Effective use of affirmative defenses requires in-depth analysis of the facts and circumstances surrounding the formation and substance of the contract. There are dozens of possible affirmative defenses that you can assert. Some of the most common are these:

  • Lack of writing — Oral contracts are valid in some cases, but contracts involving real estate, health care and credit and debt repayment must always be written.
  • Lack of consideration — You claim that your duty to perform was excused because the contractual duty was one-sided; that is, you got nothing of value in return.
  • Fraud in the inducement — This means the plaintiff made misrepresentations that deceived you into entering the contract.
  • Unconscionability — The contract allegedly gives one party “an unjust and undeserved advantage,” such as when that party used its greater bargaining power to get you to sign unjust clauses or waivers.
  • Impossibility of performance — You claim you cannot perform the contract because of an unforeseen event, such as a natural disaster or property destruction.
  • Breach of contract by the plaintiff — If the plaintiff did not materially comply with its duties under the contract or any modification, it cannot claim you are in breach.
  • Substantial compliance — You claim you performed most of your obligations under the contract and that any noncompliance was too minimal to amount to a breach.
  • Accord and satisfaction — The plaintiff allegedly agreed to accept a lower amount of money or an alternative type of performance, which you allege you paid or carried out.
  • Statute of limitations — A suit must be filed within five years of alleged breach of a written contract or within four years if the contract is oral.

You also have the right to plead in the alternative, meaning you can assert every affirmative defense you think may apply even if some are contradictory. For example, you can argue that the contract was invalid while also arguing that you fulfilled your part of the deal.

Under Florida civil procedure rules, you have 20 days to answer the complaint, and your answer must include your affirmative defenses. Otherwise, the court will consider them waived and you will not be allowed to use these defenses later in the case.

H. Clay Parker, Esq. handles contract litigation for business clients across Central Florida. We can start assessing your situation during a 30-minute initial consultation for only $50. Call our Orlando law office by at 407-216-2504 or contact us online to schedule a meeting.

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