What Affirmative Defenses to Breach of Contract Can Your Client Use?

Breach of Contract What Affirmative Defenses to Breach of Contract Can Your Client Use?

Affirmative Defenses to Breach of Contract—Is There a Way Around Them?

If your client believes they had a reason for violating the terms of your agreement, they may fight your claim with affirmative defenses to breach of contract. In this article, you can learn which types of defenses there are to prepare yourself best.

Even though your client may believe that they had a valid reason for breaching the agreement, you can send them a demand letter to avoid wasting time, money, and energy on a lawsuit.

What Are Affirmative Defenses to a Breach of Contract Claim?

Affirmative defenses are factual and legal arguments that the breaching party raises to try and make the breach of contract claim moot. The defenses do not necessarily dispute the plaintiff’s primary claim but present the circumstances that should dismiss it.


To submit a claim, you—as the plaintiff—must provide evidence for the following elements of breach of contract:

  1. Existence of the contract
  2. The breaching party’s failure to perform
  3. The injured party’s performance
  4. Damage that resulted in a quantifiable loss

If you cannot prove each of the above-listed elements, the defendant can use it against you by:

  • Contesting the facts
  • Claiming that the breach was minor and not material

The defendant is most likely to raise the affirmative defenses in the early stages of the lawsuit.

What Are the Possible Defenses to a Breach of Contract Claim?

You can find some of the most common affirmative defenses to breach of contract in the table below:

The Most Common Affirmative Defenses Explanation
Error If there is a mistake in the contract terms, the defendant can use it as a defense for their breach. It doesn’t help if it was a mutual mistake
Lack of contractual capacity A defendant can use this argument if they can prove that either one of the parties was mentally incapacitated or a minor during the contract’s formation
Violation of the Statute of Frauds If the contract falls under the Statute of Frauds, it needs to be in written form. If you have an oral contract, the defendant can use this defense to fight your claim and has a good chance of winning the case
Duress If one party is forced or blackmailed into signing a contract, they are doing it under duress. Using duress as an affirmative defense gives the breaching party the upper hand
Unconscionable defense claims The defendant’s lawyer may argue that some of the terms of the agreement are grossly unfair to the defendant
Impossibility The defendant can use this defense if something made the performance impossible or impracticable (e.g., illegal activities)

Write a Demand Letter Before Filing a Lawsuit

To prevent the breaching party from using the affirmative defenses, you can use a breach of contract demand letter to try and settle the dispute among yourselves. If the matter still ends up in court, you can use the letter as proof that you tried to resolve the issue before filing a lawsuit.

Apart from seeking remedies and demanding damages, you should spell out points like:

  • Elements of the breach
  • Your demands
  • Due date by which you expect the breaching party to fulfill their obligations

You have the following options to draw up a demand letter:

  • Do it yourself—Drafting a demand letter by yourself is not an ideal option if you are not well-versed in the legal language. You can find demand letter templates online, but keep in mind that they are generic and might not be customized to your case
  • Engage a lawyer to write a demand letter—A lawyer may be the safest option, but not the most affordable one. The price depends on the size of the firm, your location, and the complexity of your case, and it can vary from $750 to $1,200
  • Use DoNotPay—Our platform can create a reliable and rock-solid demand letter in a few minutes

How To Create a Demand Letter With DoNotPay

DoNotPay is the world’s first robot lawyer that can create fully personalized breach of contract demand letters. As we are familiar with all the legal requirements, you can rest assured that your demand letter will contain all it needs to make your client compensate you for the losses you suffered.

To get your demand letter, you should sign up for DoNotPay and follow these steps:

  1. Open the Client Breach of Contract product
  2. Enter all the required information, such as:
    1. Name of your client
    2. Terms of your contract
    3. The date on which the payment was due
    4. The amount your client owes you
  3. Select the final due date by which the client has to pay you before you take any further legal action

Once you have completed the steps, our app will generate your demand letter immediately so you can send it to your client.

In case you want to know more about state-specific rules and requirements, you can find more useful guides in the table below:

Georgia Michigan Pennsylvania
Colorado New York Illinois
Virginia New Jersey Ohio
Delaware Arizona California
South Carolina North Carolina Florida

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There Is Even More We Can Do for You

Navigating the business world can be overwhelming. If your paperwork is piling up and disputes keep emerging, start using our app and declutter your workday from numerous chores.

The world’s first robot lawyer can help you deal with the following:

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