Construction Law

Breach of Contract Claims: Affirmative Defenses and Counterclaims featured image

Breach of Contract Claims: Affirmative Defenses and Counterclaims

As a contractor, you know disagreements can happen in the construction industry. At times those disagreements are taken to court and brought to litigation. These disagreements are common due to the complex nature of construction and can occur between any of the many parties involved. The disagreement could involve an owner, subcontractor, supplier, architect, or employee.

During litigation, the other party (the plaintiff) has to prove that you breached the contract and any damages that occurred. The person accused of breaching the contract (the defendant) has to create a defense. Simply denying any wrongdoing is not enough. A Nashville construction attorney can offer you legal counsel and representation in a breach of contract case.

Affirmative Defenses

These defenses do not assert that a breach of contract didn’t occur but that the other party should not win the lawsuit. This style of defense focuses on the circumstances and mitigating facts surrounding the contract. Some examples of affirmative defenses are duress, mistake, undue influence, misrepresentation, impossibility, and unconscionability.

For instance: a contractor signed an agreement with an owner to complete a new building and the contractor was able to coordinate the project to near completion. However, the contractor was unable to finish the project by the agreed upon time. If the owner claims the contractor breached the contract, the contractor’s lawyer might use the affirmative defense of substantial completion.


Making a counterclaim is another defense that can be used in a breach of contract suit, and it doesn’t have to be related to the original claim. The defendant made a claim against you, and you can make a counterclaim back. It can cause the plaintiff to reconsider what they’re asking for and take care in how they proceed. However, if you make a counterclaim, then you must be able to provide evidence to support your counterclaims. Another thing to be mindful of is if you don’t make a counterclaim early in the breach of contract suit, you may not be able to sue for damages later.

Nashville Construction Lawyers

Construction litigation involves many factors. Choosing a firm that has experience with the construction industry can give you an edge in your case. Cotney Attorneys & Consultants works with contractors and other construction industry professionals before, during, and after litigation, providing comprehensive solutions to their legal needs.

If you would like to speak with our Nashville construction attorneys, please contact us today.

Disclaimer: The information contained in this article is for general educational information only. This information does not constitute legal advice, is not intended to constitute legal advice, nor should it be relied upon as legal advice for your specific factual pattern or situation.