Affirmative Defenses to Breach of Contract in California

California law defines contracts in the state as being either express or implied. Express contracts are “stated in words,” while implied contracts are “manifested by conduct.” An express contract can also be oral — not written — provided that no other California statute requires the contract to be in writing, as it does for home sales, for instance.

The legal definition of a contract is a “promise or a set of promises for the breach of which the law gives a remedy, or the performance of which the law in some way recognizes as a duty.” A shorthand version might be, “A contract is a legally enforceable promise.”

When one party to a contract fails to live up to their end of the promise, a breach can be said to have occurred, but for the breach to be open to civil litigation, it generally must subvert the whole purpose of the contract. In other words, some breaches are minor and easily repairable, while others are major and threaten the very continuance of the contract. Major breaches often result in breach of contract lawsuits.

When faced with a breach of contract, you need an attorney experienced in the civil litigation of contract law, whether you’re the breached or the breacher — the plaintiff or the defendant. 

The Law Offices of David H. Schwartz, INC has been handling business and civil litigation matters for more than 45 years.  Attorney David H. Schwartz will listen to your story, assess the situation, and advise you of your legal options going forward, whether it’s to defend yourself or pursue a claim against another party.

The Law Offices of David H. Schwartz, INC proudly serves clients in the Greater San Francisco Bay area, including San Jose, Santa Clara, San Mateo, Oakland, and throughout Alameda County.

What Comprises a Breach of Contract?

There are four elements to a breach of contract legal claim:

  • The existence of a valid contract
  • Performance as expected by the plaintiff, or a valid excuse for non-performance
  • The defendant’s failure to perform as required
  • The plaintiff suffers damages as a direct result of the defendant’s non-performance

For instance, Company A and Company B enter into a contract requiring B to supply A with 2,000 gallons of paint on the first day of each month in return for a payment of X dollars. Company B honors the agreement for the first two months, but in the third month misses the deadline.

If Company B has a valid reason for the missed delivery and makes up for it a few days later, this would probably be considered a minor breach that resolved itself. If B offers no explanation and fails to make the delivery for the rest of the month and Company A loses business, that would be a more significant breach open to civil litigation.

What Are Affirmative Defenses?

If you’re facing legal action over a breach of contract, you have various potential defenses at your disposal, beginning with the validity of the contract itself. Defenses to a breach of contract, however, are mostly what are known as affirmative defenses, which means that you, the defendant being accused of the breach, have the burden of proving your defense.

An affirmative defense does not challenge the validity of the breach but offers mitigating circumstances or another rationale for the breach to render the claim moot.

Among the most common affirmative defenses, most of them centering on the validity of the contract, include:

  • CONTRACTS SHOULD BE IN WRITING: If it’s an oral contract that has been breached, the defendant can argue that the contract should have been in writing according to the “statute of frauds.”
  • FORMATION PROBLEMS: One or more of the essential elements of a contract is missing, whether offer, consideration, or acceptance.
  • LACK OF CAPACITY: The defendant lacked the legal capacity, whether because of age or mental condition (being high, drunk, or otherwise incapacitated), to agree to the contract.
  • MISTAKE: There are one or more mistakes in the contract.
  • UNCONSCIONABILITY: The terms of the contract are grossly unfair to one party.
  • MISREPRESENTATION: If terms of the contract are misrepresented, even accidentally, and the other party agrees on the basis of the misrepresentation, the contract can be voided.
  • FRAUD: If a material aspect of the contract is deliberately misrepresented, or deliberately hidden from the other party, the contract can be deemed invalid.
  • IMPOSSIBILITY: Unforeseen circumstances or happenings prevented the fulfillment of a contractual obligation, but the impossible situation cannot have been created by the party responsible for the contracted obligation.
  • DURESS AND UNDUE INFLUENCE: If one party is somehow forced to enter into the contract, that is the defense of duress. Undue influence is similar but the conduct and pressure are less severe.
  • VIOLATION OF PUBLIC POLICY: If the contract violates public policy or has an illegal purpose, it cannot be enforced.

Let the Law Offices of David H. Schwartz, INC Help

Whenever an issue arises with a contract, especially when a breach has occurred, you need to consult with an attorney knowledgeable with California contract law. Attorney David H. Schwartz has 45 years-plus experience in business and contract litigation.

Whether you have suffered a breach or are being accused of a breach, contact the Law Offices of David H. Schwartz, INC immediately to exercise your full rights under the law and protect your vital interests going forward.


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