defense

That which is offered and alleged by the party proceeded against in an action or suit, as a reason in law or fact why the plaintiff should not recover or establish what he seeks.

That which is put forward to diminish plaintiffs cause of action or defeat recovery.

Evidence offered by accused to defeat criminal charge. With respect to defenses to a commercial instrument of which a holder in due course takes free, the term "defense" means a legally recognized basis for avoiding liability either on the instrument itself or on the obligation underlying the instrument. A response to the claims of the other party, setting forth reasons why the claims should not be granted. The defense may be as simple as a flat denial of the other party's factual allegations or may involve entirely new factual allegations. In the latter situation, the defense is an affirmative defense. Under Rules of Civil Procedure, many defenses may be raised by motion as well as by answer (Rule 12(b), while others must be pleaded affirmatively (Rules 8(c), 9).

See affirmative defense

- answer

- equitable defense

- justification.

As regards defense to criminal charge, such defenses include alibi, consent, "corporate" liability defenses, de minimis infraction, duress, entrapment, ignorance or mistake, infancy, insanity, intoxication, law enforcement authority, necessity, protection of property, public duty, legal impossibility, self defense and protection of others. Defense also means the forcible repelling of an attack made unlawfully with force and violence, such as the defense of one's person or property or nation in time of war.

See self-defense

@ affidavit of defense.

See affidavit

@ frivolous defense

One which at first glance can be seen to be merely pretensive, setting up some ground which cannot be sustained by argument. On motion, such defense may be ordered stricken from the pleadings. Fed.RCivil P. 12(f).

@ legal defense

A defense which is complete and adequate in point of law. A defense which may be set up in court of law, as distinguished from an "equitable defense", which is cognizable only in a court of equity or court possessing equitable powers. This later distinction is no longer applicable with the procedural merger of law and equity under Rules of Civil Procedure.

@ meritorious defense

One going to the merits, substance, or essentials of the case, as distinguished from dilatory or technical objections. For purposes of vacating default judgment is defense presumptively established when allegations of defendant's answer, if established on trial, would constitute a complete defense to the action, and defendant need not establish its defense beyond doubt in its pleading. Hritz v. Woma Corp., C.A.Pa., 732 F.2d 1178, 1181.

@ partial defense

One which goes only to a part of the cause of action, or which only tends to mitigate the damages to be awarded.

@ peremptory defense

A defense which insists that the plaintiff never had the right to institute the suit, or that, if he had, the original right is extinguished or determined.

@ personal efense

In negotiable instruments law, a defense which, though not good as against a holder in due course, is good against certain parties, because of their participation in or knowledge of certain transactions or facts from which such defense arises. Such defenses include all defenses that are not real or absolute defenses. U.C.C. No. 3-305.

@ pretermitted defense

One which was available to a party and of which he might have had the benefit if he had pleaded it in due season, but which cannot afterwards be heard as a basis for affirmative relief.

@ real defense

In negotiable instruments law, a defense inherent in the res and therefore good against anyone seeking to enforce the instrument, even a holder in due course. Real defenses include infancy, and such other incapacity, or duress, or illegality of the transaction, as renders the obligation of the party a nullity, and fraud in the factum. These defenses are good even against a holder in due course because, where they exist, no contract was formed. U.C.C. No. 3-305(2).

@

See also real defenses

- self defense

@ sham defense

A false or fictitious defense, interposed in bad faith, and manifestly untrue, insufficient, or irrelevant on its face

@ defense attorney

Lawyer who files appearance in behalf of defendant and represents such in civil or criminal case.

See public defender

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