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Affirmative defense
 
 
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An affirmative defense is a category of defense
Defense (legal)

In civil proceedings and criminal prosecutions under the common law, a defendant may raise a defense in an attempt to avoid criminal or civil liability....
 used in litigation between private parties in common law
Common law

Common law refers to law and the corresponding Legal systems of the world developed through legal opinion of courts and similar tribunals , rather than through statute law or Executive ....
 jurisdictions, or, more familiarly, a type of defense raised in criminal law
Criminal law

The term criminal law, sometimes called penal law, refers to any of various bodies of rules in different jurisdictions whose common characteristic is the potential for unique and often severe impositions as punishment for failure to comply....
 by the defendant
Defendant

A defendant or defender is any party who is required to answer the complaint of a plaintiff or pursuer in a civil lawsuit before a court, or any party who has been formally indictment or accused of violating a crime statute....
. Affirmative defense can be classified as either a justification defense or an excuse defense. Affirmative defenses operate to limit, excuse or avoid a defendant
Defendant

A defendant or defender is any party who is required to answer the complaint of a plaintiff or pursuer in a civil lawsuit before a court, or any party who has been formally indictment or accused of violating a crime statute....
's criminal culpability
Culpability

Culpability descends from the Latin concept of fault , which is still found today in the phrase mea culpa . The concept of culpability is intimately tied up with notions of moral agency, freedom and free will....
 or civil liability
Liability

In the most general sense, a liability is anything that is a wikt:hindrance, or puts individuals at a disadvantage. It can also be used as a slang term to describe someone that puts a team or group of which they are a member at a disadvantage, and would thus be better off without....
, even though the factual allegations of plaintiff
Plaintiff

A plaintiff , also known as a claimant or complainant, is the party who initiates a lawsuit before a court. By doing so, the plaintiff seeks a legal remedy, and if successful, the court will issue judgment in favor of the plaintiff and make the appropriate court order ....
's claim
Cause of action

In the law, a cause of action is a set of facts sufficient to justify a right to sue. The phrase may refer to the legal theory upon which a plaintiff brings suit ....
 are admitted or proven.






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An affirmative defense is a category of defense
Defense (legal)

In civil proceedings and criminal prosecutions under the common law, a defendant may raise a defense in an attempt to avoid criminal or civil liability....
 used in litigation between private parties in common law
Common law

Common law refers to law and the corresponding Legal systems of the world developed through legal opinion of courts and similar tribunals , rather than through statute law or Executive ....
 jurisdictions, or, more familiarly, a type of defense raised in criminal law
Criminal law

The term criminal law, sometimes called penal law, refers to any of various bodies of rules in different jurisdictions whose common characteristic is the potential for unique and often severe impositions as punishment for failure to comply....
 by the defendant
Defendant

A defendant or defender is any party who is required to answer the complaint of a plaintiff or pursuer in a civil lawsuit before a court, or any party who has been formally indictment or accused of violating a crime statute....
. Affirmative defense can be classified as either a justification defense or an excuse defense. Affirmative defenses operate to limit, excuse or avoid a defendant
Defendant

A defendant or defender is any party who is required to answer the complaint of a plaintiff or pursuer in a civil lawsuit before a court, or any party who has been formally indictment or accused of violating a crime statute....
's criminal culpability
Culpability

Culpability descends from the Latin concept of fault , which is still found today in the phrase mea culpa . The concept of culpability is intimately tied up with notions of moral agency, freedom and free will....
 or civil liability
Liability

In the most general sense, a liability is anything that is a wikt:hindrance, or puts individuals at a disadvantage. It can also be used as a slang term to describe someone that puts a team or group of which they are a member at a disadvantage, and would thus be better off without....
, even though the factual allegations of plaintiff
Plaintiff

A plaintiff , also known as a claimant or complainant, is the party who initiates a lawsuit before a court. By doing so, the plaintiff seeks a legal remedy, and if successful, the court will issue judgment in favor of the plaintiff and make the appropriate court order ....
's claim
Cause of action

In the law, a cause of action is a set of facts sufficient to justify a right to sue. The phrase may refer to the legal theory upon which a plaintiff brings suit ....
 are admitted or proven. In fact, the defendant usually must affirm that the facts asserted by the plaintiff are correct in asserting their own defense, hence, "affirmative" defense.

A clear illustration of an affirmative defense is self-defense. In its simplest form, a criminal defendant may be exonerated, if he can demonstrate that he had an honest and reasonable belief that his conduct was necessary to protect himself against another's use of unlawful force.

Mistake of fact is another affirmative defense, usually used in combination with another, in which the defendant asserts that he reasonably believed the culpable act was necessary based on his observation, though given complete knowledge of the situation it is clear that the act was unwarranted. Self defense is still valid even if the defendant mistakenly believed he was in imminent danger of harmful or offensive bodily contact.

Among the most controversial affirmative defenses is the insanity defense, whereby a criminal defendant, shown to be insane at the time of their crime, seeks commitment to a mental institution in lieu of imprisonment.

Most affirmative defense must be timely plead by a defendant in order for the court to consider them, or else they are considered waived by the defendant's failure to assert them. The classic unwaivable affirmative defense is lack of subject-matter jurisdiction
Subject-matter jurisdiction

Subject-matter jurisdiction is the authority of a court to hear cases of a particular type or cases relating to a specific subject matter. For instance, bankruptcy court has the authority to only hear bankruptcy cases....
. What constitutes timely assertion is often itself the subject of contentious litigation.

Because an affirmative defense requires an assertion of facts beyond those claimed by the plaintiff, generally the party making an affirmative defense bears the burden of proof
Burden of proof

The burden of proof is the obligation to shift the assumed conclusion away from an oppositional opinion to one's own position . The burden of proof may only be fulfilled by evidence....
. The burden of proof is typically lower than beyond a reasonable doubt
Burden of proof

The burden of proof is the obligation to shift the assumed conclusion away from an oppositional opinion to one's own position . The burden of proof may only be fulfilled by evidence....
. It can either be proof by clear and convincing evidence or a preponderance of the evidence. In some cases or jurisdictions, however, the defense must only be asserted, and the prosecution has the burden of proving beyond a reasonable doubt that the defense is not applicable.

Rule 8 of the Federal Rules of Civil Procedure
Federal Rules of Civil Procedure

The Federal Rules of Civil Procedure are rules governing civil procedure in United States district courts, that is, court procedures for civil suits....
 governs the assertion of affirmative defenses in civil cases filed in the United States district court
United States district court

The United States district courts are the general trial courts of the United States federal court system. Both Civil law and Criminal law cases are filed in the district court, which is a court of law, Equity , and admiralty....
s. Rule 8(c) specifically enumerates the following defenses: "accord and satisfaction
Accord and satisfaction

Accord and satisfaction is a contract law concept about the purchase of the release from a debt obligation. The payment is typically less than what is owed and is not paid by the actual performance of the original obligation....
, arbitration
Arbitration

Arbitration, a form of alternative dispute resolution , is a law technique for the resolution of disputes outside the courts, wherein the parties to a dispute refer it to one or more persons , by whose decision they agree to be bound....
 and award, assumption of risk
Assumption of risk

Assumption of risk is a defense in the law of torts, which bars a plaintiff from recovery against a negligent tortfeasor if the defendant can demonstrate that the plaintiff voluntarily and knowingly assumed the risks at issue inherent to the dangerous activity in which he was participating at the time of his injury....
, contributory negligence
Contributory negligence

Contributory negligence is a common law defense to a claim based on negligence, an action in tort. It applies to cases where a plaintiff has, through his own negligence, contributed to the harm he suffered....
, discharge in bankruptcy, duress
Duress

Duress or coercion is a possible defense , one of four of the most important justification defenses, by which defendants argue that they should not be held liability because the actions that broke the law were only performed out of an immediate fear of injury....
, estoppel
Estoppel

Estoppel is a law doctrine at common law, where a party is barred from claiming or denying an argument on an equitable ground. Estoppel complements the requirement of consideration in contract law....
, failure of consideration
Consideration

Consideration is the central concept in the common law of contracts and is required, in most cases, for a contract to be enforceable. Consideration is the price one pays for another's promise....
, fraud
Fraud

In the broadest sense, a fraud is a deception made for personal gain or to damage another individual. The specific legal definition varies by legal jurisdiction....
, illegality
Illegal agreement

An illegal agreement, under the common law of contract, is one that the courts will not enforce because the purpose of the agreement is to achieve an illegal end....
, injury by fellow servant, laches
Laches

* Laches : an equitable principle in Anglo-American law* Laches : an Athenian aristocrat * Laches : a Socratic dialogue of Plato* Laches : an indigeous people of Colombia...
, license
License

The verb license or grant license means to give permission. The noun license refers to that permission as well as to the document memorializing that permission....
, payment
Payment

A payment is the transfer of wealth from one Party to another. A payment is usually made in exchange for the provision of good , Service s or both, or to fulfill a legal obligation....
, release
Legal release

A legal release is a legal instrument that acts to terminate any legal liability between the releasor and the releasee signed by the releasor. A release may also be made orally in some circumstances....
, res judicata
Res judicata

Res iudicata or res judicata is, in both civil law and common law legal systems, a case in which there has been a final judgment and is no longer subject to appeal....
, statute of frauds
Statute of frauds

The statute of frauds refers to the requirement that certain kinds of contracts be made in writing and signed.Traditionally, the statute of frauds requires a writing signed by the defendant in the following circumstances:...
, statute of limitations
Statute of limitations

A statute of limitations is a statute in a common law legal system that sets forth the maximum period of time, after certain events, that legal proceedings based on those events may be initiated....
, waiver
Waiver

A waiver is the voluntary wikt:relinquishment or surrender of some known right or privilege.While a waiver is often in writing, sometimes a person's actions can act as a waiver....
, and any other matter constituting an avoidance or affirmative defense."

Examples

  • civil law
    Civil law (common law)

    Civil law, as opposed to criminal law, refers to that branch of law dealing with disputes between individuals and/or organizations, in which damages may be awarded to the victim....
    • Accord and satisfaction
      Accord and satisfaction

      Accord and satisfaction is a contract law concept about the purchase of the release from a debt obligation. The payment is typically less than what is owed and is not paid by the actual performance of the original obligation....
    • assumption of risk
      Assumption of risk

      Assumption of risk is a defense in the law of torts, which bars a plaintiff from recovery against a negligent tortfeasor if the defendant can demonstrate that the plaintiff voluntarily and knowingly assumed the risks at issue inherent to the dangerous activity in which he was participating at the time of his injury....
       (when the plaintiff knowingly entered into a dangerous situation)
    • authority
      Authority

      In government, authority is often used interchangeably with the term "power ". However, their meanings differ: while "power" refers to the ability to achieve certain ends, "authority" refers to a claim of legitimacy , the justification and right to exercise that power....
    • consent
      Consent

      Consent as a term of jurisprudence is a possible defence against civil or criminal liability. Defendants who use this defense are arguing that they should not be held liability for a tort or a crime, since the action s in question were taken with the plaintiff or "victim's" consent and permission....
    • defense of property
      Defense of property

      The defence of property is a possible justification used by defendants who argue that they should not be held liable for the loss and injury they have caused because they were acting to protect their property....
    • duress
      Duress

      Duress or coercion is a possible defense , one of four of the most important justification defenses, by which defendants argue that they should not be held liability because the actions that broke the law were only performed out of an immediate fear of injury....
    • estoppel
      Estoppel

      Estoppel is a law doctrine at common law, where a party is barred from claiming or denying an argument on an equitable ground. Estoppel complements the requirement of consideration in contract law....
    • contract-specification defense
    • contractual
      Contract

      A contract is an exchange of promises between two or more parties to do, or refrain from doing, an act which is enforceable in a court of law. It is a binding legal agreement....
       provision (when the defendant's liability for causing the plaintiff's injuries had been waived in the contract)
    • contributory negligence
      Contributory negligence

      Contributory negligence is a common law defense to a claim based on negligence, an action in tort. It applies to cases where a plaintiff has, through his own negligence, contributed to the harm he suffered....
       (when the plaintiff's actions contributed to his own injury)
    • fair use
      Fair use

      Fair use is a doctrine in United States copyright law that allows limited use of copyrighted material without requiring permission from the rights holders, such as use for scholarship or review....
    • laches
      Laches (equity)

      Laches , , is an Equity defense, or doctrine. The person invoking laches is asserting that an opposing party has "slept on its rights", and that, as a result of this delay, that other party is no longer entitled to its original claim....
       (similar to statute of limitations)
    • merger doctrine
    • repossession
      Repossession

      Repossession is generally used to refer to a financial institution taking back an object that was either used as collateral or rented or leased in a transaction....
    • statute of frauds
      Statute of frauds

      The statute of frauds refers to the requirement that certain kinds of contracts be made in writing and signed.Traditionally, the statute of frauds requires a writing signed by the defendant in the following circumstances:...
    • statute of limitations
      Statute of limitations

      A statute of limitations is a statute in a common law legal system that sets forth the maximum period of time, after certain events, that legal proceedings based on those events may be initiated....
       (too much time has elapsed between the tort and the bringing of the suit)
    • waiver
      Waiver

      A waiver is the voluntary wikt:relinquishment or surrender of some known right or privilege.While a waiver is often in writing, sometimes a person's actions can act as a waiver....
  • criminal law
    Criminal law

    The term criminal law, sometimes called penal law, refers to any of various bodies of rules in different jurisdictions whose common characteristic is the potential for unique and often severe impositions as punishment for failure to comply....
    • insanity defense
    • necessity
      Necessity

      In U.S. criminal law, necessity may be either a possible Justification or an exculpation for breaking the law. The corresponding defense in Britain is called "lawful excuse." Defendants seeking to rely on this defense argue that they should not be held liable for their action as a crime because their conduct was necessary to prevent s...
    • self-defense
      Self-defense (theory)

      The right of self-defense is the right for civilians acting on their own behalf to engage in violence for the sake of defending one's own life or the lives of others, including the use of deadly force....
    • statute of limitations
      Statute of limitations

      A statute of limitations is a statute in a common law legal system that sets forth the maximum period of time, after certain events, that legal proceedings based on those events may be initiated....
    • Truth


See also

  • Reverse onus
    Reverse onus

    A reverse onus clause is a provision within a statute that shifts the burden of proof on to the individual specified to disprove an element of the information....