An affirmative defense is a reason given by the defendant for why the plaintiff should not win the lawsuit, even if what the plaintiff says is true. In Texas, defendants must assert affirmative defenses in their Answer at the beginning of the case or risk not being able to use them later. Many affirmative defenses are listed in Rule 94 of the Texas Rules of Civil Procedure. Here, you can find out how and where to research each defense.
What is an affirmative defense?
Affirmative defenses are reasons the defendant gives for why a plaintiff should not win. An affirmative defense can help you win the lawsuit even if what the plaintiff says is true. In Texas, defendants must assert affirmative defenses in their Answer at the beginning of their case. Failure to do so may prevent the defendant from using the defenses later.
Who is the plaintiff and who is the defendant?
A plaintiff is the side that starts the lawsuit by filing a complaint or petition with the court. A plaintiff files the lawsuit to get the court to force the defendant to do something, such as pay money damages.
A defendant is the side the lawsuit has been filed against. The defendant is the party that may have to pay money damages or perform some other action if the plaintiff wins and the defendant loses.
Where can I find affirmative defenses I may be able to use?
Many of the affirmative defenses are listed in Rule 94 of the Texas Rules of Civil Procedure. This guide provides an explanation of many of the affirmative defenses listed on the Civil Answer form. Note, though, that the defenses listed here and in the Civil Answer form are not exhaustive.
If the affirmative defense you would like to use is not covered here, and for more information on each listed affirmative defense, you can review books such as "O’Connor’s Texas Rules: Civil Trials" and "O’Connor’s Texas Causes of Action." In those books, look for a section labeled “Defendant’s Response & Pleadings.”
Should I get more help?
Yes. This article does not replace the advice and assistance of an attorney. If you are considering using an affirmative defense, it is a good idea to get detailed legal advice from an attorney first. You may have additional affirmative defenses that are not listed here.
Another way to make getting help from a private attorney more affordable is through limited scope representation, also known as unbundling.
You can review other books such as “O’Connor’s Texas Rules–Civil Trials” and “O’Connor’s Texas Causes of Action.” Look for the section labeled “Defendant’s Response & Pleadings.” These books can likely be found at your local law library.
The cases and statutes listed in this guide can also be a starting point for your legal research. See I need to do legal research to learn how.
Statutes of Limitation
The statutes of limitation say how long the plaintiff has to file a lawsuit against the defendant. Depending on the type of case, the deadlines to file a lawsuit are different. There are further possible issues, including whether the deadline can be extended. For more information on specific statutes of limitation in Texas, read Statutes of Limitation.
Example: Ellie agrees in writing with Obie to repair her roof so it will not continue to leak when it rains. Obie works on the roof, Ellie pays him, and he leaves. But during the next rainstorm, the roof continued to leak. Ellie contacts Obie about the leak, and he ignores her communications. Ellie then forgets about the matter during a dry spell in the weather. For the next few years, the roof continues to leak when it rains, but Ellie is too busy to follow up. Finally, she files a lawsuit five years later. Obie may be able to assert statute of limitations as an affirmative defense because, in this type of case, the deadline to file a lawsuit is four years from the date Ellie knew or should have known of the defect.
Accord and Satisfaction
An accord and satisfaction defense may be the right affirmative defense where there is a disagreement about a contract between the plaintiff and the defendant, and the plaintiff already accepted a smaller sum of money from the defendant to fully satisfy the contract terms.
Example: Sally agreed to buy five sculptures from Harry for $100. However, two sculptures did not turn out exactly the way Sally liked. Harry then offered to sell the sculptures to Sally for $85 instead to solve the problem. Sally agreed and paid Harry the $85. Later, Sally files a lawsuit against Harry because she was unhappy with the two sculptures. Harry may be able to assert an accord and satisfaction affirmative defense.
To do more research, read Jenkins vs. Henry C. Beck Co.
Arbitration and Award
Arbitration is a process where a third party looks at the evidence shown by the parties and makes a decision. The parties usually agree to arbitration as part of a contract before any problem arises.
Having an agreement for arbitration in a contract or part of the contract that involves the plaintiff and defendant’s dispute may be used as an affirmative defense.
Example: Ty and Danny signed a contract for Ty to buy eggs from Danny’s farm. A clause in the contract states that any disputes will first go to arbitration. Ty buys the eggs but later becomes upset when half fail to hatch. Ty and Danny then go to arbitration. At arbitration the third party looked at the evidence shown by both sides and orders Danny to refund Ty half of her money. Ty doesn’t think the third party awarded large enough money damages and files a lawsuit against Danny. Danny may be able to assert an arbitration and award affirmative defense. Arbitration awards are favored by the courts as a way to take care of disputes and the court will try to uphold the arbitration award.
Assumption of Risk
The assumption of the risk defense can be used when the plaintiff has expressly and knowingly agreed, verbally or in writing, to the dangerous activity or condition. This defense can be used as an affirmative defense in a few types of cases. This affirmative defense is a bit limited, but it can still be used as an affirmative defense when there is consent to a dangerous activity or when the plaintiff is injured while committing a felony or attempting suicide.
Example: Ellie runs a skydiving company. Mari signs up to do a skydiving session and signs a form saying she knows this is a dangerous activity. Mari jumps out of the plane but breaks her leg upon landing. Mari then files a lawsuit against Ellie. Ellie may be able to assert an assumption of the risk affirmative defense.
Contributory negligence is a legal concept where you ask whether a plaintiff's actions may have contributed to their injuries in addition to the defendant's actions. In Texas, there is a system called proportionate responsibility and contribution. It is a way for courts to determine which parties are responsible for the injury to the plaintiff, and how much responsibility each party has for the plaintiff’s injuries. The level of responsibility is set as a percentage of damages each party to a lawsuit will have to pay.
Example: Luke is driving his car, knowing his brake pads needed to be replaced soon. Ben has decided to cross the road one rainy day while texting his girlfriend and is not paying attention to the cars. Luke hits Ben with his car. Ben sues Luke. Luke may be able to assert contributory negligence as an affirmative defense, because it can be argued that Ben contributed by being negligent in walking across the road while texting and not paying attention to the cars.
Discharge in Bankruptcy
A bankruptcy discharge is a court order that says the debtor is no longer responsible for certain kinds of debts.
A defendant who has filed for bankruptcy and received a discharge for debts from the court can claim this affirmative defense if the plaintiff is now trying to sue him for one of those debts.
Example: Theo got a credit card through West Bank. He made a lot of purchases and ran up a large balance on the card that he was unable to pay off. Theo filed for bankruptcy and the court entered a decree discharging Theo from his debts, including the West Bank credit card. Later, West Bank sues Theo for the balance owed on the credit card. Theo may be able to assert a discharge in bankruptcy affirmative defense.
To do more research, read Edrington vs. Gee.
Duress is a situation where the defendant, against their will, is forced by the plaintiff into taking an action such as signing a contract. The defendant will need to show that:
- The plaintiff threatened to act in a way they had no legal right to do;
- The threat forced the defendant to act in a way they otherwise would not have;
- The change in behavior was close in time to the threat; and
- The defendant had no way to protect himself from the threat.
Example: Stan wanted Shirley to sign an agreement saying she would repay the $200 she owed him with a 200% interest rate. Shirley resisted, saying she could not afford it. Stan threatened to smash Shirley’s car with a bat if she refused. Shirley then signed the agreement. Stan later filed a lawsuit to enforce the agreement with the 200% interest rate. Shirley may be able to assert the duress affirmative defense.
The estoppel affirmative defense prevents the plaintiff from taking a legal position that is a lot different than an earlier position. This affirmative defense is around because allowing the plaintiff to do this would be unfair to the defendant. The reason estoppel is available as a defense is to prevent injustice that can happen due to fraud or inconsistency. There are several types of estoppel, including:
Promissory estoppel: This type of estoppel can occur when the plaintiff has promised the defendant something, the defendant reasonably relied on the promise in a way that now negatively affects him, the plaintiff knew or should have known that the promise would lead to a bad result for the defendant, and injustice can only be avoided by an enforcing the plaintiff’s promise.
Example of promissory estoppel: Rob is looking for a company that can produce a certain part for a new invention he has. He needs the product to be of a specific material that can withstand certain temperatures without ever losing its shape. Bolton promises Rob he can produce the part with those specifications, and he is delighted he can get by by using the less expensive materials for the part. Rob and Bolton sign an agreement. However, Rob discovers the part shrinks at the lower end of the temperature range he was concerned about. He refuses to pay Bolton. Bolton sues Rob to enforce the contract. Rob may be able to use promissory estoppel as an affirmative defense.
Equitable estoppel: This type of estoppel can occur when the plaintiff has hidden important information or misled the defendant, knowing the defendant would use that information and act on it in a way that would negatively affect him.
Example of equitable estoppel: Same example as above but this time, Bolton had run multiple tests and studies on the part prior to signing the agreement with Rob. All test and study results show the part will shrink at high temperatures. Bolton intentionally does not mention the tests and studies to Rob. In this instance, Rob may be able to use equitable estoppel as an affirmative defense.
Failure of Consideration
The failure of consideration defense may be applicable in a situation where the plaintiff must do something before the defendant is required to act, and the plaintiff fails to act. Generally, it must be a substantial failure. Consideration is something of value one party gives up in exchange for the other party to perform a certain action or the promise to do so.
Example: Fitz, a dancer, and Liz, a business student at a local college, sign a contract to open a dance studio together. They agree that Liz will handle the money, marketing and business aspects, while Fitz will teach the students. They further agree that Liz will work with a realtor to secure a studio and set up accounts for utilities before Fitz will begin teaching. Liz becomes busy with school and fails to get electricity, internet, and water accounts set up. She becomes upset that Fitz has not begun teaching and earning money, so Liz files a lawsuit against Fitz. Fitz may be able to use failure of consideration as an affirmative defense.
To do more research, read Roark vs. Stallworth Oil and Gas, Inc.
To use fraud as an affirmative defense, the defendant must prove that the plaintiff knowingly or recklessly made a false and important representation to him, believing that the defendant would rely and act on it.
Example: Marianne wants to add a swimming pool to her home in time for an important visit from a supervisor from the corporate office in three months. She interviews many contractors and asks how long it will take to install a pool. All show her how their suppliers have a specific part she will need on backorder for four months. However, John states he will finish the pool in two months and creates a fake letter from a supplier saying he has the pool part she needs in stock. Marianne hires John, and the pool is not completed in time for the visit. Marianne refuses to pay the full amount of the bill, and John files a lawsuit against her. Marianne may be able to use fraud as an affirmative defense.
To do more research, read Eagle Properties, Ltd vs. Scharbauer.
The defendant may claim the affirmative defense of illegality if the plaintiff and the defendant agree in a contract to commit an illegal act. The court will not enforce a contract to perform an illegal act.
Example: Emma and Elton write an agreement to import Emma’s pickles into England where Elton will sell them. Suppose permits are required to import any pickled vegetables into England. But neither Emma nor Elton obtained the permits. Now Elton is suing Emma for not sending him the pickles. Emma may be able to use illegality as an affirmative defense.
To do more research, read GNG Gas Systems, Inc. vs. Dean.
Injury to Fellow Servant
In the injury to fellow servant affirmative defense, the defendant is claiming he is not responsible for injury to his employee, the plaintiff, if the plaintiff is injured due to another employee’s actions.
Example: Ray and LeeAnn are coworkers at Target Lawns. LeeAnn is in charge of maintaining all of the lawnmowers. However, she fails to keep up with servicing them. Ray is later using one, when it catches on fire. Ray is hurt and sues Target Lawns for his injuries. Target Lawns may be able to use injury to a fellow servant as an affirmative defense.
To do more research, read City of San Antonio vs. Mendoza.
With the affirmative defense of laches, the plaintiff can be prevented from filing a lawsuit because it has been too long, regardless of any statutes of limitation. The defendant must show that:
- There was an unreasonable delay in the plaintiff enforcing his rights
- The delay negatively affected the defendant’s assertion of rights or defenses, and
- There were extraordinary circumstances that justify this affirmative defense.
Example: Jimmy, Brad, and John are all friends. One day, they are celebrating John’s birthday. John is very ill and may not live much longer. Brad stumbles onto a rock and accidentally pushes Jimmy onto the ground. Jimmy breaks his hand, ending his promising guitar career. John sees all of this. Brad apologizes for the accident, but Jimmy is upset. Jimmy sues Brad, but intentionally waits for John to pass away first. Brad may be able to use laches as an affirmative defense because John could have provided testimony on how Brad’s actions were unintentional.
To do more research, read Wayne vs. A.V.A. Vending, Inc.
The affirmative defense of license may be used in a situation where the defendant has been given a legal right to the use of a good or property that the plaintiff is now filing a lawsuit over.
Example: Kathy owns the patent to a newly designed bow and arrow set. Gale wants to make and sell these sets in his store, so he signs a licensing agreement with Kathy. In exchange for ten payments of $500, Gale will have a license for one year to sell the bow and arrow sets in his store. Kathy later sues Gale for selling the bow and arrow sets in his store. Gale may be able to use the license affirmative defensive.
To do more research, read American Mfg. Co. of Tex. vs. Witter.
A release is an agreement where one person agrees that the other person will not be held responsible for a negative outcome that may result from an action. The release must be written in clear terms and be noticeably visible in the contract.
Example: Marjorie owns an art studio where people can come in and, for a fee, paint on their own. She does not provide aprons for painters and encourages them to paint in old clothing instead. Marjorie has them sign a release saying she is not responsible for any damage to clothing as the paint is permanent and cannot be washed out. Jeffrey comes in to do a painting and signs the release. He splashes paint on his $500 designer jeans. Jeffrey sues Marjorie for the damage to his jeans. Marjorie may be able to assert release as an affirmative defense.
To do more research, read Dresser Industries, Inc. vs. Page Petroleum, Inc.
The affirmative defense of res judicata prohibits a finished case involving generally the same parties from being done again, along with related issues that should have already been decided in that case.
Example: Maricella and Tommy are involved in a minor car accident. Tommy sues Maricella for the damage done to the side of his car, including the side mirror which was loosened. Tommy obtains a judgment against Maricella, and she pays him the amount ordered. A few months later, the side mirror falls off completely. Tommy files a lawsuit against Maricella, asking for her to replace the side mirror. Maricella may be able to assert res judicata as an affirmative defense.
To do more research, read Barr vs. Resolution Trust Corp. ex. rel. Sunbelt Federal Sav.
Statute of Frauds
The statute of frauds requires certain types of contracts to be in writing and signed by the defendant in order to be enforceable by the plaintiff. Types of contracts that are covered by the statute of frauds include:
- Contracts that cannot be performed within a year;
- Contracts for the sale of goods over $500;
- Contracts for a real estate sale (real estate is land or a house).
Example: Ed wants to buy a gold ring from Katie for $3,000. She hands him the ring, and they orally agree for Ed to make three payments of $1,000 for three months. Ed stops paying after one payment because he thinks the ring is not real gold. Katie sues him, asking that he continue to make payments. Ed can assert the statute of frauds as an affirmative defense because the agreement was for ore than $500 and it was not in writing.
A defendant may claim the affirmative defense of waiver when the plaintiff has given up their rights. Giving up rights can be done through oral or written means, or it can be implied through conduct.
Example: Sandy and Aria sign an agreement that Sandy will sell Aria’s paintings of wolves at Sandy’s store. Sandy insists that Aria also agree to go to mediation if there is ever a disagreement. Aria agrees, signs the agreement, and begins producing more artwork. Later, Sandy stops selling the artwork. Aria sues to get Sandy to keep her end of the agreement. Sandy may be able to assert the waiver affirmative defense to force the lawsuit to first go through mediation first.
To do more research, readVessels vs. Anschutz Corp.
Court How-Tos (Civil Procedure)
This article explains the basics of civil lawsuits in Texas.
This article explains statutes of limitation in Texas.
This article provides an overview of the process of conducting legal research.