A responsive pleading shall set forth specifically and separately a statement of facts constituting an avoidance or affirmative defense including but not limited to accord and satisfaction, arbitration and award, contributory negligence, discharge in bankruptcy, duress, estoppel, failure of consideration, fraud, frustration of purpose, illegality, impossibility of performance, injury by fellow servant, laches, license, payment, release, res judicata, statute of frauds, statute of limitations, and waiver. If a party has mistakenly designated a defense as a counterclaim or a counterclaim as a defense, the court, on terms if the interest of justice requires, shall treat the pleading as if there had been a proper designation.
Rule 4:5-4.Affirmative defenses; misdesignation of defense and counterclaim
Last amended September 1, 2016 · Current through June 18, 2026 · Last verified July 7, 2026
In one sentenceRule 4:5-4 requires a responsive pleading to set out affirmative defenses specifically and separately — giving a non-exhaustive list from accord and satisfaction to waiver — and directs the court to treat a mislabeled defense or counterclaim as properly designated when justice requires.
Full Text of Rule 4:5-4
Amendment History
New Jersey publishes each rule’s amendment record in a “History” note beneath the rule. It is reproduced verbatim below; the “R.R.” citations refer to the former Revised Rules numbering the current rules replaced.
Source-R.R. 4:8-3; amended August 1, 2016 to be effective September 1, 2016.
Plain-English Summary
Certain defenses must be raised affirmatively or they are lost. This rule requires a party to plead them specifically and separately, and it lists many by name — among them accord and satisfaction, contributory negligence, discharge in bankruptcy, estoppel, fraud, illegality, laches, release, res judicata, the statute of frauds, the statute of limitations, and waiver. The list is illustrative, not closed, so any matter of avoidance belongs here.
The rule is forgiving about labels. If a party mistakenly designates a defense as a counterclaim or a counterclaim as a defense, the court treats the pleading as if it had been properly designated, on terms if the interest of justice requires. Substance controls over the caption.
Frequently Asked Questions
What are affirmative defenses in New Jersey?
Matters of avoidance that must be pleaded specifically and separately, such as accord and satisfaction, statute of limitations, statute of frauds, release, res judicata, estoppel, fraud, and waiver. The rule’s list is illustrative, not exhaustive.
What if a defense is mislabeled as a counterclaim?
The court will treat the pleading as if it had been properly designated, on terms if the interest of justice requires. A labeling mistake does not defeat the pleading.
Source & verification. The rule text and amendment history are reproduced verbatim from the
official New Jersey Rules of Court (N.J. Ct. R. 4:5-4). Prescribed by the Supreme Court of New Jersey (N.J. Const. art. VI, § 2, ¶ 3). The plain-English summary is original and written by us. Last verified July 7, 2026. ·
Official source
Also known as: affirmative defenseslist of affirmative defensesavoidancestatute of limitations defensemisdesignation of defense