31 Affirmative Defenses and How to Assert Them in Your Answer

An affirmative defense is a legal argument that defeats the plaintiff’s claim even if every fact in the complaint is true. Instead of simply denying what the plaintiff alleges, you’re giving the court a separate legal reason why you should win anyway. Common affirmative defenses include statute of limitations, fraud, accord and satisfaction, and failure of conditions precedent. This guide explains 31 affirmative defenses and shows you exactly how to assert them.

---

You’ve been sued. First, you panic. Then, you start thinking about how to defend yourself.

One of the most effective strategies is to use affirmative defenses. They’re not just legal technicalities—they’re powerful tools that can keep you in the case long after other pro se litigants might have given up. If done well, they can give you leverage in settlement negotiations or lead to an outright win.

---

What Is an Affirmative Defense?

An affirmative defense is different from a simple denial. When you deny an allegation, you’re saying “that’s not true.” When you raise an affirmative defense, you’re saying “even if it’s true, here’s why I still win.”

For example, imagine you’re sued for breach of contract. You could deny that you breached the contract. But you could also raise the affirmative defense of fraud—arguing that the plaintiff tricked you into signing the contract in the first place. Even if the plaintiff proves you didn’t perform under the contract, your fraud defense could defeat their entire claim.

You can raise affirmative defenses while still denying the claims in the complaint. In fact, courts allow you to plead alternative and even contradictory defenses. The more viable defenses you have, the stronger your position.

---

When to File Affirmative Defenses

File your affirmative defenses with your Answer to the complaint, typically within 20-30 days of being served. Most courts require you to raise affirmative defenses early—if you wait, you may waive them permanently.

It’s usually best to file your affirmative defenses and your Answer as a single document with two main sections: (1) your responses to each allegation, and (2) your affirmative defenses.

However, your Answer shouldn’t be the first thing you file. A motion for an extension of time or a motion to dismiss are often better initial filings. But keep your affirmative defenses in mind from the start—they’re a key part of your overall defense strategy and will be essential during discovery.

---

How to Properly Assert an Affirmative Defense

You must meet all the elements (requirements) of each defense you assert. If any element is missing, your defense can be easily struck by the plaintiff. Each defense should be stated as a set of facts—not as a legal conclusion.

Here’s how to do it right:

Step 1: Find the elements of the defense you want to assert. Statutes and appellate court decisions in your jurisdiction are good sources.

Step 2: Identify the facts in your case that match each element.

Step 3: Write your defense as factual statements that address every element.

Example: Asserting Fraud as an Affirmative Defense

In most jurisdictions, 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
5. The defendant relied on the representation

Here’s how different assertions would fare:

Assertion	Result
“The plaintiff made a false statement when I signed the contract.”	❌ Easily struck — Missing elements 2-5
“The plaintiff committed fraud.”	❌ Easily struck — Legal conclusion, not facts
“The plaintiff said he owned the property in dispute but knew he didn’t. He wanted me to believe him so I would enter a rental contract. I believed him and signed the contract.”	✅ Properly stated — Addresses all five elements

The third example works because it includes: (1) a false representation (said he owned the property), (2) about a material fact (ownership), (3) made with knowledge of its untruth (knew he didn’t own it), (4) with intent to deceive (wanted me to believe him), and (5) reliance (I believed him and signed).

Important: The elements of a defense may vary by jurisdiction. Always check the requirements in your state or federal circuit.

---

31 Common Affirmative Defenses

Below are 31 typical affirmative defenses with their elements. Remember: elements vary by jurisdiction, so verify the requirements for your location.

1. Abandonment

Used in: Trademark and copyright infringement cases

A defendant can argue that the owner of a trademark cannot exclude others from using it if the trademark has been abandoned.

Sample elements:

• The owner discontinued good faith and exclusive use of the trademark in the ordinary course of trade
• The owner intended not to resume using the trademark
• The owner’s acts (or failures to act) caused the trademark’s primary significance to become the product itself rather than the producer
• The owner failed to exercise adequate quality control over 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

---

2. Accord and Satisfaction

Used in: Contract and debt disputes

An agreement between two parties to accept terms that differ from the original contract amount 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 knowledge that the debtor offered it only as full satisfaction or not at all

Source: Charleston Urban Renewal Authority v. Stanley, 176 W.Va. 591 (1985)

---

3. Assumption of Risk

Used in: Personal injury and negligence cases

The defendant must prove that the plaintiff knew of a dangerous condition and voluntarily exposed themselves to it.

Sample elements:

• Knowledge on the part of the injured party of a condition inconsistent with their safety
• Appreciation by the injured party of the danger of the condition
• A deliberate and voluntary choice to expose themselves to that danger

Sources: Alley v. Praschak Machine Co., 366 So.2d 661 (Miss. 1979); Little v. Liquid Air Corp., 37 F.3d 1069 (5th Cir. 1994)

---

4. Breach of Contract (as a defense)

Used in: When the plaintiff breached first

The act of breaking the terms of a contract without a legal excuse—used defensively when the plaintiff’s own breach excuses the defendant’s performance.

Sample elements:

• A legally enforceable obligation of the plaintiff to the defendant
• The plaintiff’s violation or breach of that obligation
• Injury or damage to the defendant caused by the breach

Source: Filak v. George, 267 Va. 612 (2004)

---

5. Collateral Estoppel (Issue Preclusion)

Used in: When an issue was already decided in a prior case

A doctrine that bars a party from re-litigating issues that have already been decided.

Sample elements:

• The issue previously decided is identical to the one in the current action
• The prior action was 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 case
• That party had a full and fair opportunity to litigate the issue previously

Source: Betts v. Townsends, Inc., 765 A.2d 531 (Del. 2000)

---

6. Duress

Used in: Contract disputes

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 by the opposite party

Sources: Urban Plumbing & Heating Co. v. United States, 408 F.2d 382 (Ct. Cl. 1969); Blodgett v. Blodgett, 49 Ohio St.3d 243 (1990)

---

7. Equitable Estoppel

Used in: When the plaintiff’s conduct should bar their claim

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)

---

8. Failure of Condition(s) Precedent

Used in: Contract disputes

An action required to take place (usually by the plaintiff) before the defendant must perform on a contract.

Sample elements:

• An act or event that must occur after the contract was made but before there is a right to immediate performance
• The condition did not occur
• Therefore, no breach of the contractual duty exists

Source: Hohenberg Bros. Co. v. George E. Gibbons & Co., 537 S.W.2d 1 (Tex. 1976)

---

9. Failure to Join Necessary or Indispensable Party

Used in: When someone essential to the case isn’t included

A case can be dismissed where the plaintiff has not included a party whose participation is required.

Sample elements — A person must be joined if:

• Complete relief cannot be accorded among the existing parties without that person
• The person claims an interest in the subject matter and their absence would impede their ability to protect that interest, or would leave a current party at risk of inconsistent obligations

Source: Hoyt Props., Inc. v. Prod. Res. Grp., L.L.C., 716 N.W.2d 366 (Minn. App. 2006)

---

10. Failure to Mitigate Damages

Used in: To reduce the plaintiff’s damage award

An affirmative defense that reduces damages when the plaintiff took no reasonable action to avoid or reduce their harm.

Sample elements:

• The defendant’s breach caused the plaintiff’s harm
• Damages could have been avoided with reasonable efforts or expenditures
• The plaintiff did not take reasonable steps to avoid harm

Source: Judicial Council of California, Civil Jury Instructions 358

---

11. Force Majeure (Act of God)

Used in: Contract disputes involving unforeseeable events

A party is not deemed to have failed an obligation if performance was prevented by events that could not be anticipated and were beyond their control.

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
• The defendant acted with due diligence to prevent damage or further harm

Note: If the contract includes a force majeure clause, that clause typically controls.

Sources: Skandia Ins. Co. v. Star Shipping, 173 F. Supp. 2d 1228 (S.D. Ala. 2001)

---

12. Fraud

Used in: Contract and business disputes

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 taken in reliance upon the representation

Sources: United States v. Kiefer, 228 F.2d 448 (D.C. Cir. 1955); Bennett v. Kiggins, 377 A.2d 57 (D.C. 1977)

---

13. Frustration of Purpose

Used in: Contract disputes

Unexpected circumstances have undermined the entire purpose of the contract.

Sample elements:

• Frustration of the principal purpose of the contract
• The frustration is substantial
• The non-occurrence of the frustrating event was a basic assumption on which the contract was made

Source: Sabine Corp. v. ONG Western, Inc., 725 F. Supp. 1157 (W.D. Okla. 1989)

---

14. Judicial Estoppel

Used in: When the plaintiff contradicts their prior court positions

A doctrine that bars a party from taking positions inconsistent with their positions in a prior judicial proceeding.

Sample elements:

• A sworn, prior inconsistent statement made in a judicial proceeding
• The party now sought to be estopped successfully maintained the prior position
• The prior statement was not made inadvertently or because of mistake, fraud, or duress
• The statement was deliberate, clear, and unequivocal

Source: Vinson & Elkins v. Moran, 946 S.W.2d 381 (Tex. 1997)

---

15. Impossibility of Performance

Used in: Contract disputes

Performance of the contract was made impossible through no fault of the defendant.

Sample elements:

• The defendant’s performance was made impossible
• Through no fault of the defendant
• The impossibility was due to unforeseeable events

Source: Civil Jury Instructions Hawaii, Instruction No. 15.20

---

16. Justification (Necessity/Self-Defense)

Used in: Tort cases, property disputes

The defendant’s actions were necessary to protect themselves or others from harm.

Sample elements:

• The defendant was under an unlawful, present, imminent, and impending threat inducing well-grounded apprehension of death or serious bodily injury
• The defendant had not recklessly placed themselves in that situation
• The defendant had no reasonable legal alternative
• A direct causal relationship exists between the action taken and the avoidance of the threatened harm

Source: US v. Andrade-Rodriguez, 531 F.3d 721 (8th Cir. 2008)

---

17. Laches

Used in: When the plaintiff unreasonably delayed filing

An unreasonable delay in asserting a claim that prejudices the defendant.

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 (1995)

---

18. No Adequate Assurances / Anticipatory Breach

Used in: Contract disputes

The defendant’s failure to perform is excused because the plaintiff indicated they would not keep their promise and failed to provide adequate assurances.

Sample elements:

• The defendant had reasonable grounds to believe the plaintiff would not keep their promise
• The defendant made a reasonable effort to get assurances
• The plaintiff did not give adequate assurances within a reasonable time

Source: Alaska Civil Pattern Jury Instructions, 24.04D

---

19. Unclean Hands

Used in: Equity cases

The plaintiff is not entitled to an equitable remedy because they acted unethically regarding the subject of the complaint.

Sample elements:

• The plaintiff is guilty of immoral or unconscionable conduct
• The conduct was relied upon by the defendant
• The defendant was injured thereby

Source: Doe v. Deer Mountain Day Camp, Inc., 682 F. Supp. 2d 324 (S.D.N.Y. 2010)

---

20. Novation

Used in: Contract disputes

The substitution of an old contract with a new one that extinguishes the original obligation.

Sample elements:

• The existence of a previously valid contract
• Agreement of all parties to a new contract
• Extinguishment of the original contractual obligation
• Validity of the new contract

Source: Sans Souci v. Division of Fla. Land Sales, 421 So.2d 623 (Fla. 1st DCA 1982)

---

21. Promissory Estoppel

Used in: Contract and reliance disputes

The defendant acted in reasonable reliance on the plaintiff’s promise.

Sample elements:

• A promise
• Foreseeability of reliance by the promisor
• Substantial reliance by the promisee to their detriment

Source: Aubrey v. Workman, 384 S.W.2d 389 (Tex. Civ. App. 1964)

---

22. Ratification

Used in: Contract disputes

The plaintiff gave consent to or sanctioned the defendant’s prior acts.

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 S.W.2d 545 (Tex. App. 1990)

---

23. Res Judicata (Claim Preclusion)

Used in: When the claim was already decided or could have been raised before

A doctrine preventing re-litigation of claims that were or could have been adjudicated in a prior case.

Sample elements:

• The claim in the present action is identical to a claim litigated (or that could have been litigated) in a prior proceeding
• The prior proceeding resulted in a final judgment on the merits
• The party against whom the doctrine is asserted was a party (or in privity) to the prior proceeding

Source: People v. Barragan, 32 Cal.4th 236 (2004)

---

24. Unconscionability

Used in: Contract disputes

The absence of meaningful choice on the part of one party because the contract terms are overwhelmingly one-sided.

Sample elements:

• Circumstances surrounding each party such that no voluntary meeting of the minds was possible
• Unfair and unreasonable contract terms

Source: Collins v. Click Camera & Video, Inc., 86 Ohio App.3d 826 (1993)

---

25. Undue Influence

Used in: Contract and estate disputes

A contract can be rendered void if a person in a position of trust abused that trust.

Sample elements:

• The existence of a confidential or fiduciary relationship between the grantor and a fiduciary
• The fiduciary (or an interest they represent) benefits from the transaction
• The fiduciary had an opportunity to influence the grantor’s decision

Source: Kar v. Hogan, 251 N.W.2d 77 (Mich. 1976)

---

26. Unilateral Mistake of Fact

Used in: Contract disputes

There was no valid contract because the defendant was mistaken about a material fact.

Sample elements:

• The defendant was mistaken
• The plaintiff knew the defendant was mistaken and took advantage
• The mistake was not caused by the defendant’s excessive carelessness
• The defendant would not have agreed to the contract if they had known about the mistake

Source: Judicial Council of California, Civil Jury Instructions 330 (2018)

---

27. Unjust Enrichment

Used in: Various civil disputes

The plaintiff received a benefit they did not pay for and should not be allowed to keep.

Sample elements:

• The plaintiff conferred a benefit on the defendant, who has knowledge of it
• The defendant voluntarily accepted and retained the benefit
• Circumstances make it inequitable for the defendant to retain the benefit without paying for it

Source: Henry M. Butler Inc. v. Trizec Properties Inc., 524 So.2d 710 (Fla. 2d DCA 1988)

---

28. Usury

Used in: Loan and debt disputes

The illegal act of lending money at unreasonably high rates of interest.

Sample elements:

• The transaction was a loan or forbearance
• The interest to be paid exceeds the statutory maximum
• The loan and interest were absolutely repayable by the borrower
• The lender had willful intent to enter into a usurious transaction

Source: Ghirardo v. Antonioli, 883 P.2d 960 (Cal. 1994)

---

29. Violation of the Real Estate Settlement Procedures Act (RESPA)

Used in: Foreclosure and mortgage disputes

The plaintiff violated provisions of RESPA. Can also be used to allege failure of conditions precedent.

Sample allegations:

• Failure to provide the HUD special information booklet
• Failure to provide a Mortgage Servicing Disclosure Statement and good faith estimate within three days of the loan application
• Failure to provide Annual Escrow Disclosure Statements
• Giving or accepting kickbacks in exchange for referrals
• Charging fees for services not actually performed

Sources: LaSalle Bank, NA v. Shearon, 19 Misc. 3d 433 (2008); 12 U.S.C. § 2601

---

30. Violation of the Truth in Lending Act (TILA)

Used in: Foreclosure and consumer credit disputes

The plaintiff violated provisions of TILA.

Sample allegations:

• Failure to properly disclose the amount financed
• Failure to clearly disclose the finance charge
• Failure to clearly disclose the annual percentage rate
• Failure to clearly disclose the number, amounts, and timing of payments
• Failure to properly itemize the amount financed

Sources: 15 U.S.C. § 1601; Inge v. Rock Financial Corp., 281 F.3d 613 (6th Cir. 2002)

---

31. Waiver

Used in: Various civil disputes

The plaintiff relinquished or surrendered a right or privilege.

Sample elements:

• The existence, at the time of the alleged waiver, of a right, advantage, or benefit
• Knowledge, actual or constructive, of its existence
• An intention to relinquish such right, advantage, or benefit

Source: Fetner v. Rocky Mount Marble & Granite Works, 251 N.C. 296 (1959)

---

Using Affirmative Defenses Strategically

Knowing the elements of an affirmative defense and how to properly assert it takes you a long way toward managing your case strategically. As a pro se litigant, it also helps you gain respect (if not affection) from your opponent and the court.

For the plaintiff to win, they must overcome all of your affirmative defenses. The more viable defenses you have, the stronger your position—and the more leverage you have in settlement negotiations.

Affirmative defenses are essential during discovery. They give you grounds to request documents and information that support your defenses. They can keep you in the case long after other self-represented litigants might have been pushed out.

This is an essential requirement for anyone adopting a Personal Practice of Law—the process of interpreting, applying, and arguing the law for yourself.

---

Frequently Asked Questions About Affirmative Defenses

What is an affirmative defense?

An affirmative defense is a legal argument that defeats the plaintiff’s claim even if every fact in their complaint is true. Instead of simply denying allegations, you’re giving the court a separate reason why you should win—like the statute of limitations has expired or the plaintiff committed fraud.

What’s the difference between a denial and an affirmative defense?

A denial says “that’s not true” to the plaintiff’s allegations. An affirmative defense says “even if it’s true, here’s why I still win.” You can and should use both in your Answer.

When do I file affirmative defenses?

File your affirmative defenses with your Answer to the complaint, typically within 20-30 days of being served. Most courts require you to raise affirmative defenses early or risk waiving them permanently.

How many affirmative defenses should I include?

Include every affirmative defense that could possibly apply to your case. Courts allow you to plead alternative and even contradictory defenses. Having multiple viable defenses strengthens your position and gives you leverage in settlement negotiations.

What happens if I forget to include an affirmative defense?

If you fail to raise an affirmative defense in your Answer, you may waive it entirely. Some courts allow amendments, but adding defenses later is much harder. When in doubt, include it.

Can I add affirmative defenses after I’ve filed my Answer?

Possibly, but it’s difficult. You would need to file a motion for leave to amend your Answer. Courts may deny permission if too much time has passed or if it would prejudice the plaintiff. It’s far better to include all possible defenses from the start.

Do affirmative defenses apply in all types of civil cases?

Yes. Affirmative defenses can be used in contract disputes, personal injury cases, debt collection, foreclosure, employment matters, and virtually any civil litigation. The specific defenses available depend on your case type and jurisdiction.

How do I know which affirmative defenses apply to my case?

Review the facts of your case against the elements of each defense. Research how courts in your jurisdiction have applied each defense. If the facts of your situation could satisfy all the elements, include that defense. Tools like Courtroom5 can help you analyze which defenses fit your circumstances.

---

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. It’s an essential requirement for any defendant adopting a Personal Practice of Law, the process of interpreting, applying and arguing the law for yourself.