Legal Definitions - affirmative defense

An affirmative defense is a legal strategy used by a defendant in a lawsuit, whether civil or criminal, where they acknowledge that the basic actions alleged against them might be true, but they introduce new facts or arguments that, if proven, would excuse, justify, or mitigate their liability. Essentially, the defendant says, "Yes, I did X, but here's why I shouldn't be held responsible for it."

The crucial aspect of an affirmative defense is that the party raising it (the defendant) has the responsibility, or "burden of proof," to present evidence and convince the court or jury that these new facts are true and legally relevant. Even if the prosecution or plaintiff successfully proves that the defendant committed the alleged acts, a successful affirmative defense can lead to a finding of no liability.

• Example 1: Breach of Contract and Force Majeure

  Imagine a construction company is sued for failing to complete a building project by the agreed-upon deadline. The company admits that the project was indeed delayed beyond the contract date. However, they introduce an affirmative defense, arguing that an unexpected and severe regional flood, which was an "act of God" covered by a force majeure clause in their contract, made it impossible to continue work for several weeks. They would need to provide evidence of the flood's severity, its impact on the project, and the specific clause in the contract.

  This illustrates an affirmative defense because the company acknowledges the breach (the delay) but presents new facts (the flood and the contract clause) that, if proven, would excuse their liability for the delay. The burden is on the company to demonstrate these facts.

• Example 2: Criminal Assault and Defense of Others

  A person is charged with assault after physically intervening in an altercation. They admit to striking the other individual. However, they raise an affirmative defense, claiming they did so only to protect a vulnerable elderly person who was being violently attacked by the individual they struck. They would need to present evidence, such as witness testimony or video footage, to show that the elderly person was in imminent danger and their actions were a reasonable response to prevent harm.

  Here, the defendant admits to the physical act of assault but introduces new facts (defense of another) that, if believed by the jury, would justify their actions and negate criminal liability. The defendant bears the burden of proving these circumstances.

• Example 3: Debt Collection and Statute of Limitations

  A bank sues an individual to collect an unpaid credit card debt. The individual admits that they originally incurred the debt and did not fully repay it. However, they raise an affirmative defense, arguing that the lawsuit was filed too many years after the last payment was made, exceeding the legal time limit (known as the "statute of limitations") for collecting such debts in that state. They would need to provide evidence of the dates of their last payment and the date the lawsuit was filed.

  This is an affirmative defense because the individual acknowledges the underlying obligation (the debt) but introduces a new legal fact (the expiration of the statute of limitations) that, if proven, prevents the bank from legally collecting the debt, even if the debt itself was valid. The individual has the burden to prove the relevant dates.