WPI 300.03 Burden of Proof on the Issues—Breach of Contract—With Affirmative Defenses

Use this instruction when the defendant responds to the plaintiff's breach of contract claim with one or more affirmative defenses. If the defendant has not raised an affirmative defense, use WPI 300.02 (Burden of Proof on the Issues—Breach of Contract—No Affirmative Defense).

The instruction will need to be revised if the contract claim is being brought by a party other than the plaintiff.

Use this instruction with WPI 300.01 (Issues—Breach of Contract—Damages), when the defendant has raised at least one affirmative defense that presents an issue for the jury.

Regarding use of paragraphs (4) and (5), see the Note on Use and Comment to WPI 300.02 (Burden of Proof on the Issues—Breach of Contract—No Affirmative Defense). Regarding paragraph (6), see the discussion of actual damages versus nominal damages in the Comment to WPI 303.01 (Measure of Expectation Damages—Breach of Contract—No Counterclaim).

The last paragraph of this instruction is patterned after WPI 21.05 (Burden of Proof on the Issues—Affirmative Defenses Other Than Contributory Negligence/Assumption of Risk). It assumes that the affirmative defense is a complete bar to recovery. When that is not the case, the paragraph must be modified accordingly.

Use this instruction with WPI 21.01 (Meaning of Burden of Proof—Preponderance of the Evidence), when the case involves only issues that require proof by a preponderance of evidence. When the case also involves issues, such as fraud, that require proof by clear, cogent, and convincing evidence, use this instruction with WPI 160.03 (Fraud—Burden of Proof—Combined with Preponderance of Evidence).

When the case involves a counterclaim for damages by defendant, set forth the alternative findings as in WPI 21.04 (Burden of Proof on the Issues—Counterclaim), adapted for a contract action.

When the affirmative defense goes to the enforceability of the contract, it may be appropriate to use this instruction in combination with WPI 301.08 (Enforceability—Mutual Mistake), WPI 301.09 (Enforceability—Unilateral Mistake), WPI 301.10 (Enforceability—Duress), or WPI 301.11 (Enforceability—Undue Influence). When the affirmative defense excuses or discharges the duty of performance, it may be appropriate to use this instruction in combination with an appropriate instruction as set forth in WPI Chapter 302 (Contracts—Performance and Breach), including WPI 302.07 (Excuse of Performance—Waiver), WPI 302.06 (Excuse of Performance—Estoppel), WPI 302.08 (Excuse of Performance—Interference With Contractual Performance), and WPI 302.09 (Excuse of Performance—Impossibility or Impracticability).

See the Comment to WPI 300.02 (Burden of Proof—Breach of Contract—No Affirmative Defense) for discussion of portions of the instruction related to the plaintiff's case.

Affirmative defenses listed in CR 8(c) include accord and satisfaction, arbitration and award, discharge in bankruptcy, duress, estoppel, failure of consideration, fraud, illegality, payment and release, res judicata, statute of frauds, statute of limitation, and waiver.

Generally, such defenses can be divided into those that affect the enforceability of the contract, and those that discharge the duty of the defendant to perform under the contract.

Affirmative defenses affecting enforceability. Included among those that arise during the contracting phase, and affect the enforceability of the contract, are mutual or unilateral mistake, duress or undue influence, fraud or misrepresentation, illegality, statute of frauds, statute of limitations, and lack of competency or capacity. While these issues may be raised just as easily by plaintiffs seeking rescission of a contract as by defendants seeking avoidance of a contract, they are considered here in the role of affirmative defenses. See generally the instructions and Comments in WPI Chapter 301 (Contracts—Formation, Interpretation and Enforceability), including WPI 301.08 (Enforceability—Mutual Mistake), WPI 301.09 (Enforceability—Unilateral Mistake), WPI 301.10 (Enforceability—Duress), and WPI 301.11 (Enforceability—Undue Influence).

When fraud is asserted as an affirmative defense, there must be evidence of the nine elements required to prove fraud, as set forth in WPI 160.01 (Elements of Fraud). See Lambert v. State Farm Mut. Auto. Ins. Co., 2 Wn.App. 136, 141, 467 P.2d 214 (1970).

Affirmative defenses discharging or excusing performance. Other affirmative defenses arise out of conditions or events occurring during or affecting the course of performance, and are said to discharge or excuse a party's duty of performance. Just as with defenses that go to enforceability, when the party asserting the discharge or excuse is a defendant, then it is appropriate to term such claims affirmative defenses, but it should be noted that they might equally be asserted by the party bringing the action. These include laches or estoppel, waiver, prevention or hindrance of performance, or failure of consideration. See generally the instructions and Comments in WPI Chapter 302 (Contracts—Performance and Breach), including WPI 302.06 (Excuse of Performance—Estoppel), WPI 302.07 (Excuse of Performance—Waiver), WPI 302.08 (Excuse of Performance—Interference with Contractual Performance), WPI 302.09 (Excuse of Performance—Impossibility or Impracticability), and WPI 302.10 (Excuse of Performance—Frustration of Purpose). Subsequent conduct, such as accord and satisfaction, would also be included in this category.

Materiality of breach. For a discussion of this issue, see the Comment to WPI 300.02 (Burden of Proof on the Issues—Breach of Contract—No Affirmative Defense).