1. Common Defenses to a Breach of Contract Claim:
2. Timeline
3. If you do not respond
4. Negotiations

Updated July 10, 2020:

An answer to breach of contract complaint is a common method of responding when a lawsuit is started against you.

After receiving a summons and complaint, you should meet with a lawyer and discuss how you would like to proceed. If you believe you have a valid legal defense to the claim and wish to defend yourself, you have a set amount of time during which you must file a response: “an answer.” Discuss with your lawyer which defenses you would like to include in your answer.

Even if everything alleged in the complaint is true, you may have defenses for not performing your obligations under the contract.

Common Defenses to a Breach of Contract Claim:

  1. Misrepresentation or fraud a. Misrepresentations or fraudulent statements were made during contract negotiations and/or formation, rendering the contract invalid
  2. Impossibility or Impracticability a. The contract cannot be performed due to a change in circumstances
  3. Unconscionability a. The terms of the contract are unfair and one sided b. Uneven bargaining power
  4. Statute of limitations a. If the complaint was filed after the statute of limitations time was up, the case will be dismissed
  5. Mistake a. There was a mistake by one or both parties and therefore no meeting of the minds and no contract
  6. Duress a. Forced into entering the contract you would not have entered into otherwise b. Ex: threats of harm, threats of lawsuit, blackmail
  7. Undue Influence a. Less severe version of duress
  8. Lack of capacity a. You did not understand what you were doing when you entered into the contract
  9. Illegality a. A contract is not enforceable if the purpose or objective is illegal
  10. Estoppel a. Reliance on a statement excusing performance

Note: not having the ability to pay is NOT a valid legal defense.

Timeline

An answer must be filed in writing in proper legal form no more than 30 days from the day you were served (if personal service). You have 40 days if substituted service was used. Your 30 (or 40) days starts the day after service. If the 30th (or 40th) day falls on a weekend or court holiday, you have until the end of the next business day to file your answer. Do not wait until the last minute!

Note: There is a date stamped on the bottom of the summons. This date is the date that the summons and complaint were filed with the court by the other party. Do not use this date to count how many days you have to answer.

If you do not respond

If you choose not to respond because you do not believe you have a valid legal defense, the suing party may receive a default judgment. If the court grants a default judgment, the court will not consider any information provided by you after judgment. The suing party wins. However, this is the cheapest way to resolve a case.

Filing an answer to a lawsuit costs a court filing fee of $225-$435, based on the amount you’re being sued for unless you qualify for a fee waiver. You will be responsible for the other party’s court and attorney fees, but these fees will be less than if you answered and lost because the attorney has spent less time working on the case.

Note: You may also have to pay these if you went through the entire trial process and lost.

After a default judgment, the suing party may collect their “winnings.” If you do not have the money to pay in a lump sum, the suing party may garnish your wages or levy your bank account.

The judgment will appear on your credit report for seven years and can be renewed and re-reported on your credit report until paid in full.

Negotiations

You can attempt to negotiate with the suing party at any time. This will not stop the lawsuit, however, so if you do negotiate prior to answering, make sure to request more time to reply in case your negotiations are not successful.

If negotiations are successful, or the other party agrees to more time, make sure either and all of your agreements are put into writing.

If you need help with answering a breach of contract complaint, you can post your legal need on UpCounsel’s marketplace. UpCounsel accepts only the top 5 percent of lawyers to its site. Lawyers on UpCounsel come from law schools such as Harvard Law and Yale Law and average 14 years of legal experience, including work with or on behalf of companies like Google, Menlo Ventures, and Airbnb.