Affirmative defenses are legal defenses which give you a good reason for not being held responsible for breaking the contract. This article examines 75 affirmative defenses to a claim for breach of contract. This article is not meant to cover all possible defenses in every potential claim.
By Brad Nakase, Attorney
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One of the most frequently invoked defenses is the prior material breach defense. This argument asserts that the plaintiff, who is alleging breach, failed to perform their obligations under the contract first, thereby excusing the defendant from further performance. Another common defense is mutual mistake, which applies when both parties misunderstood a fundamental fact central to the agreement, rendering the contract voidable. Additionally, impossibility or impracticability is often cited, especially in cases involving unforeseen events such as natural disasters or regulatory changes that prevent performance. These defenses, rooted in both statutory provisions and case law, are crucial tools in disputing allegations of breach of contract.
Here, I list 75 defenses can be raised against allegations of breach of contract, depending on the circumstances and the governing law. Common defenses include lack of consideration, where the contract lacks something of value exchanged between the parties; mutual mistake, where both parties were mistaken about a fundamental fact at the time of contract formation; and fraud, where one party was induced to enter the contract through deception. Impossibility or impracticability of performance can also serve as defenses if unforeseen events make fulfilling the contract’s terms impossible or unreasonably difficult. Other defenses include illegality of the contract’s purpose, lack of capacity to contract, undue influence, or duress. Statutory defenses, such as the statute of limitations or the statute of frauds (requiring certain contracts to be in writing), may also bar enforcement. Equitable defenses like waiver, estoppel, or unclean hands can be asserted if the plaintiff’s conduct precludes them from enforcing the contract.
1. Failure of consideration
“A contract is unenforceable if the consideration for the promise is illusory.” – Bleecher v. Conte, 29 Cal.3d 345, 350 (1981)
2. Mistake of fact
“When, through fraud or a mutual mistake of the parties, or a mistake of one party, which the other at the time knew or suspected, a written contract does not truly express the intention of the parties, it may be revised.” – Cal. Civ. Code § 3399
3. Mistake of law
“A mistake of law in relation to the legal effect of an agreement may afford grounds for its rescission.” – Cal. Civ. Code § 1578
4. Mutual mistake
“Where the parties have made a mutual mistake of material fact, the contract is voidable.” – Donovan v. RRL Corp., 26 Cal.4th 261, 278 (2001)
5. Fraud in the inducement
“Fraud in the inducement renders the contract voidable.” – Rosenthal v. Great Western Fin. Securities Corp., 14 Cal.4th 394, 415 (1996)
6. Fraud in the execution
“Fraud in the execution results in the agreement being void ab initio.” – Rosenthal v. Great Western Fin. Securities Corp., 14 Cal.4th 394, 415 (1996)
7. Duress
“A contract is voidable if consent was obtained through duress.” – Cal. Civ. Code § 1567
8. Economic duress
“Economic duress may provide grounds for rescission of a contract.” – Rich & Whillock, Inc. v. Ashton Dev., Inc., 157 Cal.App.3d 1154, 1158 (1984)
9. Undue influence
“Undue influence involves the use of excessive pressure to persuade one vulnerable to such pressure.” – Cal. Civ. Code § 1575
10. Unconscionability
“If the court finds the contract or any clause of the contract to have been unconscionable at the time it was made, the court may refuse to enforce the contract.” – Cal. Civ. Code § 1670.5
11. Impossibility of performance
“Performance is excused when it is prevented or delayed by an irresistible, superhuman cause.” – Cal. Civ. Code § 1511(2)
12. Impracticability of performance
“Where performance depends upon the continued existence of a given person or thing, a condition is implied that the impossibility of performance arising from the perishing of the person or thing shall excuse performance.” – Autry v. Republic Productions, 30 Cal.2d 144, 148 (1947)
13. Frustration of purpose
“Where the value of performance regarding the principal purpose of the contract is destroyed, the doctrine of frustration may apply.” – Lloyd v. Murphy, 25 Cal.2d 48, 53 (1944)
14. Lack of capacity
“A contract of a person of unsound mind, but not entirely without understanding, made before his incapacity has been judicially determined, is subject to rescission.” – Cal. Civ. Code § 39(b)
15. Minority or infancy
“A contract of a minor may be disaffirmed by the minor before majority or within a reasonable time afterwards.” – Cal. Fam. Code § 6710
16. Mental incompetence
“A contract of a person of unsound mind, but not entirely without understanding, made before his incapacity has been judicially determined, is subject to rescission.” – Cal. Civ. Code § 39(b)
17. Intoxication
“A person entirely without understanding has no power to make a contract of any kind.” – Cal. Civ. Code § 38
18. Illegality of the contract
“A contract to do something which is prohibited by a statute is void.” – Cal. Civ. Code § 1598
19. Violation of public policy
“A contract that is contrary to the policy of express law, though not expressly prohibited, is unlawful.” – Cal. Civ. Code § 1667
20. Statute of frauds
“The following contracts are invalid, unless they, or some note or memorandum thereof, are in writing and subscribed by the party to be charged: (1) An agreement that by its terms is not to be performed within a year from the making thereof.” – Cal. Civ. Code § 1624(a)(1)
21. Statute of limitations
“An action upon any contract, obligation or liability founded upon an instrument in writing: four years.” – Cal. Code Civ. Proc. § 337(1)
22. Waiver
“Waiver is the intentional relinquishment of a known right.” – DRG/Beverly Hills, Ltd. v. Chopstix Dim Sum Cafe & Takeout III, Ltd., 30 Cal.App.4th 54, 60 (1994)
23. Estoppel
“The elements of equitable estoppel are: (1) the party to be estopped must be apprised of the facts; (2) he must intend that his conduct shall be acted upon, or must so act that the party asserting the estoppel had a right to believe it was so intended; (3) the other party must be ignorant of the true state of facts; and (4) he must rely upon the conduct to his injury.” – DRG/Beverly Hills, Ltd. v. Chopstix Dim Sum Cafe & Takeout III, Ltd., 30 Cal.App.4th 54, 59 (1994)
24. Promissory estoppel
“A promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise.” – Kajima/Ray Wilson v. Los Angeles County Metropolitan Transportation Authority, 23 Cal.4th 305, 310 (2000)
25. Laches
“Laches is the neglect to assert a right or claim which, taken together with a lapse of time and other circumstances, causes prejudice to the adverse party and operates as a bar in a court of equity.” – Conti v. Board of Civil Service Commissioners, 1 Cal.3d 351, 359 (1969)
26. Unclean hands
“A party seeking equity must do equity and come into court with clean hands.” – Kendall-Jackson Winery, Ltd. v. Superior Court, 76 Cal.App.4th 970, 978 (1999)
27. Accord and satisfaction
“Accord and satisfaction is the substitution of a new agreement for and in satisfaction of a preexisting agreement between the same parties.” – Krechuniak v. Noorzoy, 11 Cal.App.5th 713, 726 (2017)
28. Release
“A release extinguishes any obligation covered by the release’s terms.” – Edwards v. Comstock Insurance Co., 205 Cal.App.3d 1164, 1168 (1988)
29. Novation
“A novation is the substitution of a new obligation for an existing one.” – Cal. Civ. Code § 1530
30. Rescission
“A contract may be rescinded if all parties thereto consent.” – Cal. Civ. Code § 1689(a)
31. Anticipatory repudiation
“If one party repudiates the contract before performance is due, the other party may treat the repudiation as a total breach and immediately seek damages.” – Taylor v. Johnston, 15 Cal.3d 130, 137 (1975)
32. Modification of the contract
“A written contract may be modified by an oral agreement to the extent that the oral agreement is executed by the parties.” – Cal. Civ. Code § 1698(b)
33. Subsequent agreement
“A contract may be discharged by the agreement of the parties, express or implied.” – Wade v. Markwell & Co., 118 Cal.App.2d 410, 420 (1953)
34. Failure of condition precedent
“A condition precedent is either an act of a party that must be performed or a certain event that must happen before a contractual right accrues or contractual duty arises.” – Platt Pacific, Inc. v. Andelson, 6 Cal.4th 307, 313 (1993)
35. Failure of condition subsequent
“A condition subsequent is one which extinguishes the duty to perform.” – Cal. Civ. Code § 1438
36. Non-occurrence of a condition
“Nonperformance of a condition excuses the corresponding duty to perform.” – Platt Pacific, Inc. v. Andelson, 6 Cal.4th 307, 313 (1993)
37. Breach by the other party
“A material breach by one party excuses performance by the other.” – Whitney Inv. Co. v. Westview Dev. Co., 273 Cal.App.2d 594, 601 (1969)
38. Prior material breach
“If the plaintiff is in material breach of the contract, the defendant is excused from performance.” – Brown v. Grimes, 192 Cal.App.4th 265, 277 (2011)
39. Partial performance
“When a contract is partly performed, the extent of performance and acceptance may determine enforceability.” – Ten Eyck v. Sjoberg, 61 Cal.App.3d 972, 977 (1976)
40. Substantial performance
“A party who has substantially performed is entitled to recover under the contract, minus damages caused by the breach.” – Schellinger Bros. v. Cotter, 2 Cal.App.5th 984, 1003 (2016)
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