Affirmative defenses and a Bozo contract no-no
Ask Judge Smith
Judge Layne Smith
Q. Judge Smith, regarding civil lawsuits, what is the difference between a defense and an affirmative defense? Thank you, Trisha
A. Trisha, there’s a distinct difference between defenses and affirmative defenses and I’ll share my foolproof test for making the distinction. Let’s start by covering fundamentals.
Plaintiffs must plead and prove their cases. Defendants must respond by pleading defenses, affirmative defenses, or both.
Typically, the law requires the party making allegations to prove the allegations. Keeping this in mind is the key to distinguishing a defense from an affirmative defense.
A defense is an outright denial
Suppose the plaintiff sues the defendant for breach of contract. The defendant can answer in one word — denied. A defense is an outright denial. When the defendant denies liability, the plaintiff must prove his or her allegations to win the case. The defendant doesn’t have to prove anything.
An affirmative defense is a confession and an avoidance
In contrast, a defendant who pleads an affirmative defense admits the plaintiff’s allegations are true, but also pleads new facts which would allow him to avoid the consequences. By asserting new game-changing facts, the defendant undertakes the burden of proving those facts.
Let’s consider two examples of affirmative defenses in breach of contract cases.
Statute of limitations:
Over time witnesses disappear, memories fade and evidence is lost. To prevent procrastinators from bringing stale claims, the statute of limitations establishes deadlines for filing civil and criminal actions.
Suppose Mastercard sues Jill for breach of contract for failing to pay her credit card bills. Jill admits she breached the contract (a confession) but pleads the statute of limitations (an avoidance). Lawsuits for the breach of a written contract must be filed within five years of receipt of the last payment. Jill wins if she proves Mastercard waited too long to file suit.
Capacity to contract:
By law, minors lack the capacity to enter into binding contracts.
Bozo the Clown sells his car to Johnny for $2,000. Johnny pays Bozo $1,000 up front and promises to pay him the other half within 30 days. Bozo accepts Johnny’s offer and they sign a contract. Later that same day, Johnny returns the car and demands a refund. Instead, Bozo sues Johnny for breach of contract.
In response, Johnny admits Bozo’s complaint (a confession) but pleads he was a minor and lacked the capacity to contract (an avoidance) on the date of the sale. Johnny also counterclaims to recover his down payment. Johnny wins by proving he was only 16 at the time.
The Honorable J. Layne Smith is a Leon County Judge and author of the book “Civics, Law, and Justice — How We Became U.S.” Email your questions to askjudgesmith@gmail.com.
