Short answer
Plead the affirmative defense in the answer—or in a reply when you are responding to new matter—by separately designating and numbering it, and by alleging the facts that make the defense apply. The key statutory command is: “must be plainly set forth in the answer or reply.”1
The statute gives examples of affirmative defenses, including payment, release, discharge, fraud, duress, estoppel, laches, statute of frauds, illegality, contributory negligence, void or voidable instruments or transactions, statutory bars, nondelivery, and want or failure of consideration. It also covers any affirmative matter that avoids or defeats the claim, and any defense likely to surprise the other side if not expressly pleaded.1
How to plead it
- Put the defense in the answer or reply, and separately designate and number each defense.1
- State the defense in a plain and concise way, with separately numbered paragraphs and, as nearly as possible, one separate allegation per paragraph.2
- Plead facts, not just a label; the pleading should reasonably inform the opposing party of the nature of the defense they must meet.13
- In the answer, still admit or deny each allegation of the pleading you are answering; allegations not explicitly denied are generally admitted unless a statutory exception applies.4
- If the defense is founded on a written instrument, attach the relevant copy or recite it in the pleading, unless you attach an affidavit explaining why it is not accessible.5
Alternative and multiple defenses
You may plead multiple defenses. If you are unsure which factual version is true, you may plead alternative or hypothetical facts, even if inconsistent; a bad alternative does not defeat a good one.1
Jurisdictional, abatement, and bar defenses may be pleaded together without waiving any defense so pleaded, though the court may order jurisdictional or abatement defenses tried first.1
If the pleading is challenged or needs amendment
Defects in pleadings are raised by motion, and the motion must specifically identify the defects and the relief requested.6 A court may order a fuller or more particular statement if the pleading is insufficient, but defects not objected to in the trial court are waived.3
Before final judgment, the court may allow amendments on just and reasonable terms, including amendments adding new defenses. An amended defense may relate back if the statutory relation-back requirements are met.7