Search
  • Potomac Litigation

30 top contract defenses


If you've been accused of breaching a contract, there are a number of potential defenses. Here are the top 30:


1. Capacity

As a general rule, a plaintiff can't sue minors and the mentally incapacitated for breach of contract. They lack the capacity to contract.


2. Standing (privity)

Strangers to the contract can't sue for breach of contract. They lack standing.


3. Statute of frauds

Contracts within the statute of frauds must be in writing and signed by defendants to be enforceable against them.


4. Mistake

A mistake is an erroneous belief regarding existing facts. And a mutual mistake of material fact may excuse defendants from their contract obligations.


5. Misrepresentation

A misrepresentation is a false assertion of fact. A plaintiff's misrepresentation may excuse the defendant from his contract obligations.


6. Duress

Duress is the use of an improper threat to make a party do something it otherwise would not do. A plaintiff cannot maintain a breach of contract claim when the defendant entered into the contract under duress.


7. Undue influence

Undue influence is the use of unfair persuasion to overcome another party's free will. A plaintiff cannot maintain a breach of contract claim when the defendant entered into the contract because of undue influence.


8. Public policy

A contract violating public policy is void.


9. Unconscionability

An unconscionable contract is one without conscience; it is marked by gross disparity in value and oppressive influences in the exchange. A plaintiff cannot maintain a breach of contract claim if the contract is unconscionable.


10. Impossibility

A person (usually) has no duty to perform the impossible. So if the defendant's performance becomes impossible, he usually is not liable for not performing.


11. Impracticability

A person has no obligation to perform the impracticable. So if the defendant's performance becomes impracticable, he usually is not liable for not performing.


12. Frustration of purpose

If a party’s primary purpose for entering the contract is frustrated by a supervening event, his duty to perform is discharged.


13. Failure of performance

A plaintiff cannot maintain a breach of contract claim when he himself materially breached the contract.


14. Prevention of performance

A plaintiff cannot maintain a contract claim when he wrongfully hindered the defendant’s performance.


15. Modification

Those who make a contract may agree to change it. A modified contract duty discharges the original duty. And a plaintiff cannot maintain a breach of contract claim based on a discharged duty.


16. Waiver

Waiver is the voluntary giving up of a contractual right. A plaintiff cannot maintain a claim based on a contract right he has waived.


17. Equitable estoppel

Estoppel prevents a person from contradicting himself when another person reasonably relied on the earlier statement to his detriment.


19. Unclean hands

A person behaving inequitably will not to be granted relief in equity.


20. Novation

A contract novation is the mutual agreement to extinguish one contract and substitute a new one. A plaintiff cannot maintain a breach of contract claim based on an extinguished contract.


21. Accord and satisfaction

An accord and satisfaction substitutes a new contract performance for the original one, which is discharged. And a plaintiff cannot maintain a breach of contract claim based on a discharged performance.


22. Rescission

Those who make a contract may unmake it.


23. Repudiation

A party repudiates a contract by definitely indicating he cannot or will not perform. One party's repudiation excuses the other's performance. So a plaintiff who has repudiated a contract cannot then maintain that the defendant breached it.


24. Lack of enforceable agreement

The plaintiff has the burden of proving each element of valid contract: mutual assent, consideration, and sufficient definiteness. But the defendant may also raise as a defense that an element is missing.


25. Failure to mitigate

The plaintiff cannot recover for losses that he could have reasonably avoided.


26. Recoupment

The defendant may recover losses that he suffered from the plaintiff’s breach of the same contract by having the plaintiff’s damages award reduced accordingly.


27. Economic loss doctrine

Damages for purely economic losses (not personal injuries or property damages) cannot be recovered for tort claims based on negligence.


28. Statute of limitations

An action for breach of an unwritten contract must be brought within three years of the breach; an action for breach of a written contract, within five years.


29. Laches

The plaintiff who unreasonably delays in bringing an equitable claim will have the claim barred if the delay caused the defendant prejudice.


30. Res judicata

Res judicata bars a plaintiff from suing the same defendant twice for the same claim, suing him for any other claim that could have been brought in the first suit, or relitigating an issue decided in the first suit.

To learn more about each of these defenses, check out Virginia Contract Defenses, available now on Amazon.