Art. 1005.Affirmative Defenses

An affirmative defense works differently from a denial. A denial disputes the plaintiff's facts; an affirmative defense accepts them and adds something new that defeats or reduces the claim anyway — a reason the plaintiff still should not win even if every allegation in the petition is true. Because an affirmative defense raises facts the petition never had to address, Louisiana requires it to be pled specifically in the answer, giving the plaintiff notice of it before trial rather than a surprise at trial.

Article 1005 names nine categories a defendant must plead this way: fault of the plaintiff or of others besides the defendant, duress, error or mistake, estoppel, extinguishment of the obligation in any manner, failure of consideration, fraud, illegality, and injury by a fellow servant. Several of these track familiar civil-law vocabulary — error or mistake covers a flawed basis for consent, and extinguishment of the obligation is a broad category reaching any of the ways an obligation can come to an end apart from the performance the petition puts at issue.

The list is not closed. Article 1005 ends with a catch-all for any other matter constituting an affirmative defense, so a defendant is not limited to the nine named categories when some other doctrine defeats the claim on facts outside the petition's own allegations. Louisiana handles a few doctrines that other systems often treat as affirmative defenses — like a stale, time-barred claim — through a separate objection procedure instead of this list, so not every defense that admits and avoids a claim necessarily belongs in the answer.

Article 1005 also solves a labeling problem. If a party mistakenly calls an affirmative defense a peremptory exception, or files it as an incidental demand, or mislabels a peremptory exception as an affirmative defense, the court can treat the pleading as though it had been properly designated from the start, on whatever terms the court sets, when justice requires it. That rule keeps a case from turning on which box a party checked rather than the substance of what was pled.