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Encyclopedia > Affirmative defense

An affirmative defense is a defense used in litigation between private parties in common law jurisdictions. Affirmative defenses work to limit or excuse a defendant's liability even if the plaintiff's claim is proven, based on facts outside those claimed by the plaintiff. In most litigation under the common law adversarial system the defendant, perhaps with the assistance of counsel, may allege or present defenses (or defences) in order to avoid liability, civil or criminal. ... A lawsuit is a civil action brought before a court in order to recover a right, obtain damages for an injury, obtain an injunction to prevent an injury, or obtain a declaratory judgment to prevent future legal disputes. ... This article concerns the common-law legal system, as contrasted with the civil law legal system; for other meanings of the term, within the field of law, see common law (disambiguation). ... The term jurisdiction has more than one sense. ... A defendant is any party who is required to answer the complaint of a plaintiff in a civil lawsuit before a court, or any party who has been formally charged or accused of violating a criminal statute. ... In the most general sense, a liability is anything that is a hinderance, or puts one at a disadvantage. ... A plaintiff, also known as a claimant, or a complainant is the party who initiates a lawsuit (also known as an action) before a court. ... In the law, a cause of action is a recognized kind of legal claim that a plaintiff pleads or alleges in a complaint to start a lawsuit. ...


For example: arbitration and award is an affirmative defense asserting that the action's subject matter has previously been settled in arbitration. Arbitration, in the context of law, is a form of alternative dispute resolution — specifically, a legal alternative to litigation whereby the parties to a dispute agree to submit their respective positions (through agreement or hearing) to a neutral third party (the arbitrator(s) or arbiter(s)) for resolution. ...


An affirmative defense must be timely pleaded by the defendant in order for the court to consider it, or else it is considered waived by the defendant's failure to assert it. Because affirmative defenses require the assertion of facts beyond those claimed by the plaintiff, generally the party pleading an affirmative defense has the burden of proof on that defense. The burden of proof is typically lower than beyond a reasonable doubt. It can either be clear and convincing or preponderance of the evidence. Burden of proof is the obligation to prove allegations which are presented in a legal action. ... Beyond a reasonable doubt is the highest level of burden of persuasion typically employed in the criminal procedure. ... Clear and convincing evidence is the intermediate level of burden of persuasion sometimes employed in the civil procedure. ... Preponderance of the evidence is the level of burden of persuasion typically employed in the civil procedure. ...


Examples


  Results from FactBites:
 
Colorado Criminal Affirmative Defenses - Colorado Springs Gustafson Law Office (4854 words)
Voluntary or self-induced Intoxication is an affirmative defense to certain crimes or their lesser included offenses - that, at the time of the alleged offense(s), lacked the capacity to conform his conduct to the requirements of the law because of intoxication that was not self-induced.
Intoxication of the accused is not a defense to a criminal charge, except that a person is not criminally responsible for his conduct if intoxication was not self-induced and was intoxicated to a degree that was unable to formulate the requisite specific intent or to act knowingly or recklessly with respect to the circumstance.
It is an affirmative defense to the crime of perjury in the first degree that the defendant retracted his / her false statement during the same proceeding in which it was made.
Affirmative defense - definition of Affirmative defense in Encyclopedia (224 words)
Affirmative defenses work to limit or excuse a defendant's liability even if the plaintiff's claim is proven, based on facts outside those claimed by the plaintiff.
An affirmative defense must be timely pleaded by the defendant in order for the court to consider it, or else it is considered waived by the defendant's failure to assert it.
Because affirmative defenses require the assertion of facts beyond those claimed by the plaintiff, generally the party pleading an affirmative defense has the burden of proof on that defense.
  More results at FactBites »

 
 

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