Confession and avoidance Details

In essence, the confession and avoidance of a defendant neither deny nor admit an allegation. The plea does acknowledge that the plaintiff, the person who brings the case against the defendant, presents a good case or defense at first glance. However, to counter the allegation, the defendant proceeds to negate the effect of the allegation using a justifiable means. It could be a strong argument related to the matter or a piece of new evidence that can prove the plaintiff is also at fault.

The plea in confession and avoidance is one of the formal responses a defendant can choose to handle a plaintiff. The defendant can declare the plea either specifically or by implication. That said, The defendant still needs to state clearly all matters related to confession and avoidance. If necessary, the defendant can also apply the plea for only a certain part of the whole allegation.

The plea of confession and avoidance is pretty common under the old system of common-law pleading. Common-law pleading puts more emphasis on the form of action than the cause of action or, in other words, procedure over substance. In the U.S., this system was long deprecated and was replaced with code pleading in the 19th century. Code pleading focuses more on the substance (cause of action) than the procedure (the form of action), which is the opposite of the common-law pleading.

Example of Confession and Avoidance

We can find one of the most frequent examples of confession and avoidance pleas in injuries caused by negligence allegations. The defendant can negate or, at least, limit the punishment if they can prove that the plaintiff was also at fault. This is known as contributory negligence. To put it simply, the defendant admits to acting carelessly but argues that the plaintiff is just as negligent.

Another common example is the act of adultery involving divorce cases, which can be a ground for prosecutions in some states. At the court, the defendant may plead condonation, which is a defense argument made when the accuser has either forgiven or ignored the currently disputed act. In this case, the defendant may argue that since the defendant’s adultery is forgiven or ignored by the accuser, he or she has some leeway in the legal proceeding. Condonation is also an instance of confession and avoidance, and its use is not limited to divorce cases.

Although defendants can use condonation in multiple contexts, it is useless to some acts. For instance, some jurisdictions forbid condonation in consensual combats (except in professional conditions such as martial arts fights). The people involved in the brawl may forgive each other, but they still can’t escape the legal prosecution. The main reason why this is the case is what they were doing was also harmful to their surroundings, e.g., disruption of the public order, destruction of properties, etc.