Duhaime's Law Dictionary


Affirmative Defense Definition:

A reply to a claim which alleges facts from which it results that, notwithstanding the truth of the allegations of the complaint, no cause of action exists.

Related Terms: Statement of Defence

"An affirmative defense is one which sets forth facts from which it results that, notwithstanding the truth of the allegations of the complaint, no cause of action existed in the plaintiff at the time the action was brought."

These succinct words are those of the bogeying judge, Justice Disco of the Court of Appeals of California at Los Angeles in the 1992 case of Salazar v Maradeaga.

In almost all cases, an affirmative defense raises or relies on facts beyond or not raised, or intentionally ignored by the plaintiff.

Estoppel and immunity are common affirmative defenses. An example of an affirmative defense would be to reply to a charge of illegal construction that a relevant regulatory authority approved of the construction.

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