Asserting the Right Affirmative Defenses  to Contract Formation Can Win Your Case

Common Affirmative Defenses to Breach of Contract FormationAffirmative defenses to breach of contract are important when another party files a case but you actually have a legal reason for not completing the contract. In contract litigation, there are certain affirmative breach of contract remedies you can assert at trial.  

By proving contract defenses to the required legal standard, you can actually prevail at trial. However, parties to a lawsuit sometimes fail to assess whether they have any viable abreach of contract affirmative defenses available to them.

Although you may have a reason for breaching the contract, the question is whether or not you have a legal reason or defense.

Common Affirmative Defenses to Breach of Contract

Below are some common affirmative defenses to contract formation.  They are fact-specific and you should always make sure that the facts and evidence are available to support your case in court. Merely asserting a defense is not enough to win your case.

  • Failure to follow the writing requirements. This usually comes into play when an opposing contracts attorney argues that an oral agreement should be enforceable.
  • The Statute of Frauds requires that certain contracts be in writing. There should be no exception to this rule if the type of contract falls under this statute.
  • No agreed-upon termsThis is especially true for  government contractors that try to sue on the enforceability of teaming agreements. Commercial law contracts are fertile grounds for this type of defense.
  • Mistake. This is common among the various breach of contract defenses and can be successful if you can prove that there was an error about the terms of the agreement. Obviously, it must be a reasonable mistake. If there was a mutual mistake made by both parties, then your attorney can be in good shape.
  • Lack of contractual capacity. To legally form a contract, a party must be of sound mind and be able to understand what they were doing at the time of formation. 
    • If you have proof of mental incapacity, or if you can show that at the time of the formation that you were a minor, this defense could be successful.
    • When establishing affirmative defenses to contract formation in litigation, lawyers should watch courts that attempt to form the contract after the fact. An example of this would be a judge that says “well you are 21 years old now, and the fact that you were 16 at the time is irrelevant to the court.”
  • Duress and fraud contract. Your contract can be deemed invalid if there is evidence or fraud or lies, upon which a party relied upon to sign a contract, or if the contract was entered into under duress. 
  • Unconscionable defense claims. Some things in life are not fair. However, under contract law, if your lawyer can argue that the terms of the contract are grossly unfair, then your affirmative contract defenses could have merit.  

There are other common affirmative defenses to breach of contract and remedies such as estoppel, failure to mitigate damages, substantial performance, and set-off.

Gather Relevant Facts and Evidence For Contract Defenses

When responding to the initial lawsuit as a defendant, you want also to include any affirmative breach of contract defenses you have.  

  • Procedural rules require you to bring any defense you have in your answer. 
  • Failure to bring these defenses in your answer can procedurally harm your case.

Not only are you required to assert any affirmative breach of contract defenses in your answer, but you must also make sure that you have hard facts and supporting evidence to support your defense.  

If you assert a defense that you cannot support, the plaintiff may argue that it is frivolous. If the court agrees, then it can impose sanctions or penalties. 

If your lawsuit is related to a government contract breach, you also have to understand the additional rules related to federal contract litigation.

See more information about the breach of contract defenses of impossibility or impracticability.

Understand Your Rights -- Get a Free Copy of Your Breach of Contract Checklist

If you are involved in or contemplating using common affirmative defenses to breach of contract formation in litigation, call a contract law attorney at 1-866-601-5518 for a FREE INITIAL CONSULTATION.