If you’ve been accused of breaching a contract, there are a variety of potential defenses to consider. Here are 30:
1. Capacity
A plaintiff can’t maintain a contract claim when the defendant lacked the capacity to enter the contract. Two classic examples are minors and the mentally ill. Neither has the capacity to contract.
2. Standing (privity)
Strangers to the contract also can’t maintain a contract claim. They lack standing.
(Third-party beneficiaries of the contract, however, are not strangers and so have 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 a defendants from contractual 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, there is (usually) no liability for the non-performance.
11. Impracticability
A person (usually) has no obligation to perform the impracticable. So if the defendant’s performance becomes impracticable, there is (usually) no liability for the non-performance.
12. Frustration of purpose
If a party’s primary purpose for entering the contract is frustrated by a supervening event, the duty to perform is discharged.
13. Failure of performance
Plaintiffs cannot maintain breach of contract claims when they themselves materially breached the contract.
14. Prevention of performance
Plaintiffs cannot maintain breach of contract claims when they 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 the plaintiff has waived.
17. Equitable estoppel
Estoppel prevents people from contradicting themselves when other people have reasonably relied on the earlier statement to their detriment.
19. Unclean hands
A person behaving inequitably will not 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
People repudiate a contract by definitively indicating they 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 argue as a defense that one or more elements have not been proven.
25. Failure to mitigate
Plaintiffs cannot recover for losses that they could have reasonably avoided.
26. Recoupment
Defendants may recover losses that they suffered from the plaintiff’s breach of the same contract by having the plaintiff’s damages award reduced accordingly.
27. Economic loss doctrine
Under Virginia law, in general, damages for purely economic losses (not personal injuries or property damages) cannot be recovered for tort claims based on negligence.
28. Statute of limitations
Under Virginia law, in general, 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 the defendant 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.