In pleading to a preceding pleading, a party shall set forth affirmatively accord and satisfaction, arbitration and award, assumption of risk, contributory negligence, discharge in bankruptcy, duress, estoppel, failure of consideration, fraud, illegality, injury by fellow servant, laches, license, payment, release, res judicata, statute of frauds, statute of limitations, waiver, and any other matter constituting an avoidance or affirmative defense. When a party has mistakenly designated a defense as a counterclaim or a counterclaim as a defense, the court on terms, if justice so requires, shall treat the pleadings as if there had been a proper designation.
Rule 8.03.Affirmative defenses.
Current through June 18, 2026 · Last verified July 9, 2026
In one sentenceRule 8.03 lists affirmative defenses - including accord and satisfaction, contributory negligence, discharge in bankruptcy, estoppel, fraud, res judicata, statute of frauds, statute of limitations, and waiver - that a party must raise in response to a pleading, and lets a court correct a defense mislabeled as a counterclaim or vice versa.
Full Text of Rule 8.03
Amendment History
The source reproduced here (current through June 18, 2026) records no amendment to this rule since its original adoption — no History line appears for it in the compiled rules. For the underlying adopting order and any later amendments, see the West’s Rules & Procedures.
Plain-English Summary
Rule 8.03 lists defenses that a party must raise affirmatively, in response to the pleading, rather than deny the other side's allegations and leave it at that. These include accord and satisfaction, arbitration and award, assumption of risk, contributory negligence, discharge in bankruptcy, duress, estoppel, failure of consideration, fraud, illegality, injury by fellow servant, laches, license, payment, release, res judicata, statute of frauds, statute of limitations, waiver, and any other matter that would avoid the claim or excuse liability. Leaving one of these out of the answer risks losing the chance to raise it later.
The rule also protects a party who labels a defense as a counterclaim, or a counterclaim as a defense, by mistake. The court can treat the pleading as if it had been labeled correctly when justice calls for it.
Frequently Asked Questions
What counts as an affirmative defense in Kentucky?
Rule 8.03 lists examples including accord and satisfaction, arbitration and award, assumption of risk, contributory negligence, discharge in bankruptcy, duress, estoppel, failure of consideration, fraud, illegality, injury by fellow servant, laches, license, payment, release, res judicata, statute of frauds, statute of limitations, and waiver, plus any other matter that would avoid the claim.
What happens if I labeled my counterclaim as a defense by mistake?
Rule 8.03 lets the court treat the pleading as if it had been properly designated, on terms it sets, when justice requires it.
Do I have to raise these defenses myself, or will the court raise them?
Rule 8.03 requires the party asserting the defense to set it forth affirmatively in the pleading responding to the claim.
Source & verification. The rule text is reproduced verbatim from the
official Kentucky Rules of Civil Procedure (Ky. R. Civ. P. 8.03). Prescribed by the Supreme Court of Kentucky (Ky. Const. § 116). The plain-English summary is original and written by us. Last verified July 9, 2026. ·
Official source
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