Definition of an affirmative defense
Defenses are set forth by a defendant in his answer to the complaint. They are a potent procedural weapon to defeat or diminish the plaintiff’s claim or claims. Defenses may either be negative or affirmative. A negative defense is the specific denial of the material fact or facts alleged in the pleading of the claimant essential to his cause or causes of action. An affirmative defense is an allegation of a new matter which, while hypothetically admitting the material allegations in the claimant’s pleading, would nevertheless prevent or bar recovery by him. (Section 5, Rule 6, Rules of Civil Procedure).
The hypothetical admission made by a defendant in an affirmative defense is not actually an admission but an assumption for purposes only of argument. Thus, in a suit against the defendant for the enforcement of a promissory note, the defendant may specifically deny the allegation in the complaint that he executed the promissory note. He may also raise an affirmative defense of prescription, that is, assuming without admitting that he executed the promissory note, the same is barred by prescription since the suit was brought more than ten years after the note had become due and demandable.
Although practitioners are fond of setting forth in the answer “special and affirmative defenses,” there is really no such thing as a “special defense” under the Rules of Civil Procedure. A defense is either negative or affirmative. (See Heirs of Cullado v. Gutierrez, 30 July 2019, e.b., Caguioa, J.).
Two groups of affirmative defenses
Under the 2020 Rules of Civil Procedure, affirmative defenses are grouped into two: For purposes of this note, I call them Group A affirmative defenses and Group B affirmative defenses.
Group A affirmative defenses
The Group A affirmative defenses are those mentioned in Sec. 12(a), Rule 8 of the Rules of Civil Procedure plus the affirmative defenses stated in the second paragraph of Section 5 of Rule 6.[1] These are the following:
1. Lack of subject-matter jurisdiction.
2. Lack of personal jurisdiction.
3. Res judicata (bar by prior judgment).
4. Lis pendens.
5. Improper venue.
6. Failure to state a cause of action.
7. Failure to comply with a condition precedent.
8. Lack of legal capacity to sue.
One may note that all these affirmative defenses were grounds of a motion to dismiss under Section 1, Rule 16 of the 1997 Rules of Civil Procedure.
Group B affirmative defenses
The Group B affirmative defenses are those mentioned in Section 5(b), Rule 6 of the Rules of Civil Procedure. These are:
1. Fraud.
2. Prescription.
3. Release.
4. Payment (extinction of the claim or demand).
5. Illegality.
6. Unenforceability under the statute of frauds.
7. Estoppel.
8. Former recovery.
9. Discharge in bankruptcy.
10. Any other matter by way of confession and avoidance.
Except for prescription, extinction of the claim or demand, and unenforceability under the statute of frauds, these affirmative defenses were not grounds of a motion to dismiss under Rule 16 of the 1997 Rules of Civil Procedure. Hence, under the 1997 Rules, these affirmative defenses, except for the three mentioned, could be resolved only during the trial proper.
The specific enumeration of Group B affirmative defenses is not exclusive because of the catch-all clause “any other matter by way of confession and avoidance.” Examples of other affirmative defenses are caso fortuito, nullity or voidability of the contract, vices of consent, and unenforceability of the contract under paragraphs 1 and 2 of Article 1403 of the Civil Code.
Distinction between Group A and Group B affirmative defenses
It is important to know whether an affirmative defense falls under Group A or under Group B since different legal rules apply to each group.
The Group A affirmative defenses shall be motu proprio resolved by the court within 30 days from the filing of the answer. (Section 12[c], Rule 8, Rules of Civil Procedure). In other words, the court cannot defer the resolution of a Group A affirmative defense to the trial proper since it is mandated to resolve such affirmative defense.
On the other hand, as to the Group B affirmative defenses, the court may conduct a summary hearing within 15 days from the filing of the answer.[2] Such affirmative defenses shall be resolved by the court within 30 days from the termination of the summary hearing. (Section 12[d], Rule 8, Rules of Civil Procedure). Since the conduct of the summary hearing is not mandatory, the court has the discretion to defer the resolution of a Group B affirmative defense to the trial proper.
The reason for the difference is that the resolution of the Group A affirmative defenses does not generally require a full-blown trial. On the other hand, resolution of a Group B affirmative defense may require a full-blown trial in which case it would be better to defer its resolution to the trial proper.
Re affirmative defense of prescription
An interesting question is how to set up the defense of prescription. Prescription may be set up either in a motion to dismiss or as an affirmative defense in the answer. Tactical considerations will come into play in making the choice.
If the defendant wants the issue of prescription resolved by the court up front without going to trial, the defendant should raise prescription in a motion to dismiss. Being a litigious motion, the court is mandated to resolve the motion to dismiss within 15 days from its receipt of the opposition thereto or upon the expiration of the period to file the opposition. The court may, in the exercise of its discretion and if deemed necessary for its resolution, call a hearing on the motion. (Section 6, Rule 15 of the Rules of Civil Procedure).
If the defendant however wants to set up a compulsory counterclaim, he should file an answer raising prescription as an affirmative defense and setting forth the counterclaim in the answer. [3] The reason is that the compulsory counterclaim will be barred if not set up in the answer. (Section 2, Rule 9, Rules of Civil Procedure). Here, the court may defer resolution of the defense of prescription to the trial proper.
Remedy from the denial of an affirmative defense
The denial of an affirmative defense means that the case shall proceed to trial. The defendant is prohibited from filing a motion for reconsideration of the denial nor may such denial be challenged by a petition for certiorari, prohibition, or mandamus. (Section 12[e], Rule 8, Rules of Civil Procedure). The reason is to curtail the defendant’s employment of dilatory tactics.
Of course, the denial of the affirmative defense is not conclusive upon the defendant. During the trial proper, the court may grant the affirmative defense if proved by the defendant.
Remedy from the grant of an affirmative defense
The grant of an affirmative defense means that the complaint will be dismissed. In this case, the remedy of the plaintiff would depend on whether the dismissal is with or without prejudice.
If the dismissal is on the ground of prescription, unenforceability under the statute of frauds, res judicata, or extinction of the claim or demand (PURE), then such dismissal is with prejudice. In such a case, the remedy of the plaintiff is to appeal. (Section 13, Rule 15, Rules of Civil Procedure). If the dismissal is on an affirmative defense other than PURE, such as improper venue, then such dismissal is without prejudice. The remedy of the plaintiff then is to file the appropriate special civil action under Rule 65. (Section 1[g], Rule 41, Rules of Civil Procedure).
Take note that the plaintiff is prohibited from filing a motion for reconsideration of the court’s order granting the affirmative defense pursuant to Section 12(c) of Rule 15. It is opined that this prohibition should be removed. The plaintiff’s motion can hardly be characterized as dilatory, unlike the defendant’s motion for reconsideration of the denial of an affirmative defense.
Waiver of the affirmative defenses
Except for lack of subject-matter jurisdiction, res judicata, lis pendens, and prescription, an affirmative defense not pleaded in the answer is deemed waived. (Section 1, Rule 9, Rules of Civil Procedure). The new Section 12(b), Rule 8 of the Rules of Civil Procedure further provides that “[f]ailure to raise the affirmative defenses at the earliest opportunity shall constitute a waiver thereof.” Taken together with Section 1 of Rule 9, it is believed that an affirmative defense not set up in the original answer can no longer be raised in an amended answer if such defense was existing or available at the time of the filing of the original answer.
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[1] Although Section 12(a) of Rule 8 speaks of “reasons set forth under Section 5(b), Rule 6,” what it actually means is “reasons set forth under the second paragraph of Section 5, Rule 6.”
[2] Note that a motion to hear affirmative defenses is a prohibited motion. (Section 12[b], Rule 15).
[3] This procedural device is provided for in Section 16, Rule 16 of the 1997 Rules of Civil Procedure. This section was unfortunately not re-enacted in the present Rules of Civil Procedure. Nonetheless, it is believed that this procedural device may still be availed of under the 2020 Rules.
Legisperit 