How to Respond to a Breach of Contract Complaint


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 original obligation.
  • Arbitration: The contract may provide for arbitration of any dispute arising under the contract.
  • 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 enforceable.
  • 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 agreement.

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 35 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.

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