Chapter 13-5 Affirmative Defenses

• Jurisdiction: United States

13-5 Affirmative Defenses

Affirmative defenses must be pleaded, or they are waived.⁷⁹ A general denial does not raise an affirmative defense because an affirmative defense is one that precludes or reduces liability even if the plaintiff's allegations are true and is a defense in "confession and avoidance." In other words, an affirmative defense is one that does not controvert the facts asserted by the plaintiff but rather seeks to establish an independent reason why the plaintiff should not recover.⁸⁰ The defendant could (though he is not required to) confess the truth of the plaintiff's allegations and still avoid or reduce liability because the elements of the affirmative defense are true. The requirement to plead affirmative defenses applies to all parties, not just defendants (e.g., parties defending a counterclaim, crossclaim, or third-party claim).⁸¹

13-5:1 Rule 94 as a Nonexclusive List of Affirmative Defenses

Rule 94 provides a list of affirmative defenses that must be pled or else are waived. If the defense is in Rule 94, the attorney will waive it by failing to plead it. Rule 94 requires the following defenses to be pled:

• Accord and Satisfaction
• Arbitration and Award
• Assumption of Risk
• Contributory Negligence
• Discharge in Bankruptcy
• Duress
• Estoppel
• Failure of Consideration
• Fraud
• Illegality
• Injury by Fellow Servant
• Laches
• License
• Payment
• Release
• Res Judicata
• Statute of Frauds
• Statute of Limitations
• Waiver

Rule 94 is, however, a nonexclusive list of affirmative defenses. While the defenses listed in Rule 94 must be pled affirmatively, the rule states that a party should plead "any other matter constituting an avoidance or affirmative defense." The Supreme Court of Texas has also made clear that the list is not exclusive.⁸² Any other defense that is one of confession and avoidance should be affirmatively pled. Recently, the Texas Supreme Court drew a distinction between affirmative defenses and defenses in confession and avoidance:

[A confession-and-avoidance plea] is one of justification. It is based on a different set of facts from those establishing [the cause of action]. As an affirmative defense it [acknowledges] the existence of prima facie liability but [asserts] a proposition which, if established, avoids such liability. Rather than being in conflict with the [cause of action], the [confession and avoidance] admits it but asserts the existence of other facts which justify or excuse it.⁸³

The court also noted that "avoidance and affirmative defenses are used interchangeably.⁸⁴ The following defenses have been held to be affirmative defenses, even though they do not appear in Rule 94:

• Penalty⁸⁵
• Insolvency⁸⁶
• Disclaimer of the Implied Warranty of Merchantability⁸⁷
• Disclaimer of the Implied Warranty of Fitness⁸⁸
• Parental Immunity⁸⁹
• The Unconstitutionality of Statute⁹⁰
• Preemption⁹¹
• Unconscionable Contract Provision⁹²
• Limitation of Liability under Liquidated Damages Clause⁹³

Where the attorney is uncertain whether a particular defense constitutes an affirmative defense, the attorney should err on the side of affirmatively pleading the defense. This will ensure the attorney does not waive the defense.

13-5:2 Satisfying the Pleading Burden for Affirmative Defenses

Rule 45 requires that affirmative defenses be pled in "plain...