Legal Definitions - confession and avoidance

Confession and avoidance refers to a legal defense strategy where a party admits the factual allegations made against them but then introduces additional facts that legally justify, excuse, or otherwise negate their liability for those admitted actions. In essence, it's a "yes, but..." argument: "Yes, I did what you claim, but here are additional circumstances that mean I am not legally responsible or my actions were permissible."

While the specific pleading form known as "confession and avoidance" is largely historical and has been replaced by modern rules for asserting affirmative defenses, the underlying concept remains a fundamental aspect of how defenses are constructed in legal arguments.

• Example 1: Self-Defense in an Assault Case

  Imagine a situation where Alex sues Ben for assault, claiming Ben punched him. Ben's defense could be a form of confession and avoidance. Ben might admit, "Yes, I did punch Alex," (the confession of the act) but then add, "However, I only did so because Alex first lunged at me aggressively, and I was acting purely in self-defense to protect myself from harm." (the avoidance, introducing new facts to justify the action).

• Example 2: Breach of Contract Due to Impossibility

  Consider a scenario where a construction company, "BuildCo," is sued by a client for failing to complete a building project by the agreed-upon deadline. BuildCo might respond by admitting, "It is true that we did not finish the project by the specified date," (the confession of the breach). They would then introduce additional facts, stating, "However, an unprecedented regional flood destroyed our primary material supplier's warehouse, making it physically impossible to acquire the necessary specialized components within the original timeframe, despite our best efforts." (the avoidance, presenting facts that excuse the breach due to impossibility).

• Example 3: Trespass Due to Necessity

  Suppose a property owner, Ms. Green, sues Mr. Jones for trespassing on her land without permission. Mr. Jones might admit, "Yes, I did walk across Ms. Green's private field," (the confession of the trespass). He would then explain, "But I did so because I witnessed a child fall into the nearby river and needed the quickest route to reach and rescue them, as there was no time to go around." (the avoidance, introducing facts of necessity to justify the otherwise unlawful entry).