Contracts are an integral part of business and are used in just about every
situation involving some sort of transaction or agreement. Written contracts
are far superior to oral or verbal contracts because the terms of the
parties’ agreement are documented, eliminating reliance on conflicting
or convenient memories and recollections of the contract terms. While
a written contract is superior to an oral or verbal contract, written
contracts often fail the parties because they are poorly or imprecisely
drafted, creating opportunities for disagreements or misunderstandings
which can become disputes that blossom into lawsuits.
Oral and written contracts are a frequent source of contention in business.
Unfortunately, the shortcomings in a contract are often revealed when
a disagreement arises and the parties’ contract fails to provide
them with clear guidance for resolution of that disagreement. To the extent
contractual obligations are not sufficiently definite and certain, misunderstandings
become allegations in a complaint for breach of contract. Every business
relationship governed by an agreement deserves the attention to detail
only a well drafted contract can provide, and its importance to that business
relationship cannot be stressed enough. Get competent representation before
you sign any contract. Doing so will dramatically reduce the chance of
being served with a complaint alleging
breach of contract and facing the inconvenience and expense of litigation.
If served with a complaint for breach of contract, simply denying the plaintiff’s
allegations may not be enough to obtain a favorable outcome. Your answer
to the plaintiff’s complaint should include all legal and equitable
affirmative defenses available to you based on the facts. Your response
to the complaint must be thorough, as any available defenses not timely
raised or properly alleged may be waived.
Common Affirmative Defenses in Breach of Contract Lawsuits
Properly alleged, affirmative defenses do not deny the plaintiff’s
allegations in the complaint but instead asserts facts that will defeat
the claims asserted. In other words, an affirmative defense does not necessarily
attack the truthfulness of an allegation of fact in a complaint, but rather
introduces some other reason why the other party should not prevail on
the alleged claim. Knowing your available defenses to a claim for breach
of contract depends on the competence and experience of your business attorney.
There are many possible affirmative defenses that may be available in the
defense of a claim for breach of contract. Defenses may be directed to
the formation of the alleged contract, its enforceability, its terms and
conditions, its performance or nonperformance, or the remedies alleged
for breach of the contract. Some examples of potential affirmative defenses:
Abandonment: Effectively the termination of the contract by mutual consent where one
party’s acts are inconsistent with the existence of a contract and
the other party to the contract acquiesces to those actions.
Accord and satisfaction: An agreement for the settlement of previous dispute by alternative or
substituted performance which is performed and accepted, discharging the
Arbitration: The contract may provide for arbitration of any dispute arising under
Condition precedent: The contract that is the subject of the dispute may require the performance
of some act or the happening of some event before an obligation to perform
arises or a claim for breach of the contract can be asserted.
Fraud: If a party entered into a contract in justifiable reliance on a knowingly
false representation of a material fact made by the other party to the
contract, the defense of fraud may defeat a claim seeking to enforce the
contract that resulted from such fraud.
Payment: If the alleged breach of the contract is based on nonpayment, payment
is an obvious defense to such claim that must be asserted or it will be waived.
Prior breach: If the plaintiff breached the alleged contract first or prevented the
other party’s performance of the contract, the plaintiff’s
prior breach of the contract may excuse the other party’s obligation
to perform the contract.
Ratification: If a party breaches a contract and the other party to the contract knows
of the breach but accepts the action taken by the breaching party with
knowledge of the breach, a ratification of the breach of contract may
be a defense to a claim for breach of contract.
Set-off: If the facts show that the amount sought by the plaintiff should be reduced
based on other claims the defendant has asserted against the plaintiff,
the defense of set-off may be an available affirmative defense.
Statute of frauds: The plaintiff’s claim may be based on an alleged oral contract
that the plaintiff seeks to enforce against you. Depending on the subject
matter of the contract, Florida law may require that the contract be in
writing and signed by the party against whom it is being enforced to be
Statute of limitations: Contract claims are governed by statutory limitations periods that require
that the claim be brought within a certain period of time. The failure
to commence the claim within that time period may bar the claim from being asserted.
Unclean hands: If a plaintiff seeks to enforce an equitable remedy based on a breach
of contract claim and the plaintiff’s own conduct was deceptive,
unfair and/or unscrupulous, unclean hands may be an available defense
to the equitable remedy sought by the plaintiff.
Failure to mitigate damages: If the plaintiff had the reasonable ability to avoid damages caused by
the breach, yet made little to no effort to do so, the plaintiff’s
damages may be avoided or reduced.
Unconscionability: If the manner in which the contract is made and the contract terms are
outrageously unfair, the contract may be deemed to be unconscionable and
unenforceable, if the defense of unconscionability is properly raised.
Waiver: Conduct which shows that a plaintiff voluntarily and intentionally relinquished
a known right, provided by the terms of a contract the plaintiff is seeking
to enforce, may give rise to the defense of waiver.
Breach of contract claims can be defended by as many affirmative defenses
as are supported by the facts, even if some defenses are inconsistent
with other defenses. The development of facts that support available affirmative
defenses and knowledge of potential affirmative defenses that may successfully
defeat a breach of contract claim is essential defending such claims.
Preparing to Defend Breach of Contract Litigation
Collect all available written and electronic documentation concerning the
formation of the contract, its performance by the parties and the alleged
the breach in controversy for review with your attorney. This includes
written copies of your agreement, e-mails, text messages, letters, voicemails,
and any other evidence that can be used in your favor. In some cases,
contracts can consist of several documents which together forming a complete
Facing a Claim for Breach of Contract? Call (561) 953-6662
Breach of contract litigation can substantially interfere with business
operations and client or customer relationships. It is inconvenient and
disruptive. For many reasons, it is imperative you retain the services
of a forceful and thorough advocate who can protect your interests. At
Gregg H. Glickstein, P.A., my
business litigation firm has provided creative and cost-effective legal strategies for clients
throughout Boca Raton for more than 30 years, affording me the tools and
insight to maximize your chances of success. Backed by an AV® Rating
by Martindale-Hubbell®, my firm has the skills and dedication you
need to achieve the best possible result.
Schedule a confidential case review
with a Boca Raton business litigation attorney today to review your legal
options in full detail.