A defence raised in a pleading (answer) to a new issue as a defence to the complaint; Positive defences may include contributory negligence or be stopped in civil actions; In criminal cases, insanity, coercion or self-defense can be used. A defendant may invoke the positive waiver objection if the plaintiff has waived his rights. The waiver of rights may be oral or written, or implied by conduct. A clear example of affirmative defense is self-defense. [1] In its simplest form, an accused may be exonerated if he or she can prove that he or she honestly and reasonably believed that the use of force by another was unlawful and that the defendant`s conduct was necessary to protect himself. [6] In this respect, affirmative defences differ from ordinary defences (assertion of law, alibi, childhood, necessity and self-defence (which is an affirmative defence at common law)], which the prosecution must rebut beyond a reasonable doubt. Rule 11 of the Federal Rules of Civil Procedure requires that positive defences be based on “knowledge, information and beliefs formed as a result of an investigation reasonably considered in the circumstances” and cannot consist of a list of all known positive objections. [ref. needed] The rules governing plea in most courts require a defendant to raise all positive objections when first responding to the civil suit or criminal complaint against him. If this is not the case, it may prevent the exercise of this type of defence at a later stage of the proceedings.
In Campbell v. Acuff-Rose Music, Inc.[12], the U.S. Supreme Court has ruled that fair dealing is a positive defense to copyright infringement. This means that in copyright infringement disputes, the defendant has the burden of proving that the use was fair and not infringing. In the case of the co-worker`s injury, the defendant claims that he is not responsible for the injury of his employee, the plaintiff, if the plaintiff is injured as a result of the actions of another employee. Example: Theo received a credit card in the West Bank. He made a lot of purchases and ended up with a large balance on the card that he couldn`t cash out. Theo filed for bankruptcy and the court issued a decree releasing Theo from his debts, including the West Bank credit card. Later, the West Bank sues Theo for the credit balance owed on the credit card. Theo may be able to seek redress in the insolvency defense. Example: Sandy and Aria sign an agreement whereby Sandy will sell Aria`s wolf paintings in Sandy`s shop.
Sandy insists that Aria also agree to mediation in case of disagreement. Aria agrees, signs the deal and starts producing more artwork. Later, Sandy stopped selling the work. Aria is suing to get Sandy to keep her side of the deal. Sandy may be able to invoke the waiver defence to force the lawsuit to go through mediation first. Example: Sally agreed to buy five sculptures of Harry for $100. However, two sculptures didn`t turn out exactly the way Sally liked them. Harry then offered to sell the sculptures to Sally for $85 to solve the problem.
Sally agreed and paid Harry the $85. Later, Sally sues Harry because she was not satisfied with the two sculptures. Harry might be able to apply a consistent and satisfactory affirmative defense. Example: Ty and Danny signed a contract for Ty to buy eggs from Danny`s farm. A clause in the contract states that all disputes will first be submitted to arbitration. Ty buys the eggs, but is later upset when half of them don`t hatch. Ty and Danny then go to arbitration. In arbitration, the third party reviewed the evidence presented by both parties and ordered Danny to return half of his money to Ty. Ty does not believe that the third party awarded enough money in damages and is suing Danny.
Danny may be able to apply arbitration and grant a positive defense. Arbitral awards will be preferred by the courts to settle disputes, and the court will attempt to uphold the award. Under Rule 56 of the Federal Rules of Civil Procedure, either party may apply for a summary decision on an affirmative defence. Example: Kathy holds the patent for a redesigned bow and arrow. Gale wants to make and sell these sets in his store, so he signs a licensing agreement with Kathy. In exchange for ten payments of $500, Gale obtained a one-year license to sell the bow and arrow sets in his store. Kathy later sues Gale for selling the bow and arrow sets in his store. Gale may be able to use the license affirmation defense. An affirmative defence is different from a “denial defence”. A denial defence is one that tends to refute an element of the plaintiff`s or prosecutor`s case.
An example could be an allegation of factual error in a criminal prosecution for intentional drug possession, where the defendant claims that he or she mistakenly believed that the object possessed was an innocent substance such as oregano. Since this defence simply demonstrates that an element of the offence (knowledge of the nature of the substance) is missing, the accused does not have the burden of conviction with respect to a defence of denial. At most, the burden of proof in asserting the issue rests on the defendant. [11] Example: Fitz, a dancer, and Liz, an economics student at a local college, sign a contract to open a dance studio together. They agree that Liz will take care of the money, marketing, and business aspects, while Fitz will teach the students. They further agree that Liz will work with a broker to secure a studio and create accounts for utilities before Fitz starts teaching. Liz is busy with school and can`t open electricity, internet and water accounts. She is upset that Fitz hasn`t started teaching and making money, so Liz takes legal action against Fitz.
Fitz may be able to use contempt as a positive defense. To use fraud as a positive defence, the defendant must prove that the plaintiff knowingly or recklessly gave him a false and material statement, assuming that the defendant would rely on it and act accordingly. The defendant may invoke the affirmative plea of illegality if the plaintiff and the defendant agree on an unlawful act in a contract. The court will not execute a contract to commit an illegal act. Example: Ellie agrees in writing with Obie to fix her roof so that it doesn`t run away when it rains. Obie works on the roof, Ellie pays him and he leaves. However, during the next rainstorm, the roof continued to leak. Ellie contacts Obie about the leak and he ignores her communication. Ellie then forgets it during a dry period of time. Over the next few years, the roof continues to leak when it rains, but Ellie is too busy to follow up.
Finally, five years later, she filed a lawsuit. Obie may be able to invoke the statute of limitations as an affirmative defence, as in such cases, the time limit for filing a claim is four years from the date Ellie knew or should have known of the default.
