AND AVOIDANCE - The Law Mind Legal Dictionary

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The Law Mind • 1114 words

Definition

"Confession and avoidance" — almost always encountered in its shortened form "and avoidance" when appearing as the tail of that phrase — is a common law pleading doctrine under which a defendant admits, expressly or by implication, the facts alleged by the plaintiff but asserts new matter that defeats or neutralizes the legal effect of those facts. The confession is not an admission of liability; it is a pleading device that concedes the factual predicate in order to raise a substantive defense, justification, or excuse that renders the plaintiff's claim unenforceable or extinguished.

The term almost never appears alone. In historical pleading practice and in surviving treatise references, it functions as the second element of "confession and avoidance," naming the affirmative mechanism: the defendant avoids the legal consequence of the confessed facts by introducing new matter — a release, a subsequent payment, accord and satisfaction, the statute of limitations, consent, justification, or any other matter that independently defeats recovery.

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Common Confusion

"And avoidance" as a standalone entry is an artifact of how Bouvier and similar dictionaries alphabetized compound legal phrases — the entry appears under "A" as though "and avoidance" were a discrete term when it is in fact the operative half of "confession and avoidance." Researchers encountering "and avoidance" in isolation in a historical source or index should treat it as a truncated reference to that complete doctrine. Separately, "avoidance" in modern legal practice has accrued distinct meanings — bankruptcy avoidance powers and constitutional avoidance — that share only the ordinary-language root with this pleading concept and are doctrinally unrelated to it.

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Core Elements

The doctrine requires two components, both present in the same pleading:

1. CONFESSION: The defendant does not traverse (deny) the plaintiff's material facts but allows them to stand as stated, either expressly or by declining to put them in issue.

2. AVOIDANCE: The defendant pleads new, affirmative matter — facts not found in the declaration — that, if proven, defeats the plaintiff's cause of action or bars recovery notwithstanding the confessed facts. The new matter must be legally sufficient to extinguish, justify, or excuse the confessed conduct.

The burden of proof on the avoided matter rests with the defendant, because the defendant is the party introducing it.

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Why It Matters in Research

The practical significance of this doctrine for corpus researchers runs in several directions.

First, pleading context: Under the common law system of formal pleading that governed English and American courts through the nineteenth century and, in many jurisdictions, well into the twentieth, the choice between a traverse and a plea of confession and avoidance was a dispositive strategic and technical decision. Misidentifying which approach was required could result in a defective plea. Researchers reading pre-code opinions or pleading-era treatises will encounter the phrase frequently and need to understand that it signals an affirmative defense structure, not a denial structure.

Second, the transition to code pleading: The Field Code (New York, 1848) and successor codes abolished the formal plea structure, but the underlying logic of confession and avoidance survived as the conceptual foundation for affirmative defenses under Rule 8(c) of the Federal Rules of Civil Procedure and its state equivalents. Modern courts still occasionally invoke the language when analyzing whether a defendant's response concedes facts while asserting new matter. The phrase bridges common law pleading vocabulary and modern procedure.

Third, index and digest traps: Because historical legal dictionaries and digests sometimes listed "and avoidance" as a near-standalone entry or subentry, a researcher using a nineteenth-century digest may find cross-references that appear incomplete. Always follow such entries back to "confession and avoidance" for the complete doctrinal treatment.

Fourth, the word "avoidance" across the corpus: The Law Mind corpus contains three distinct legal uses of "avoidance" — the pleading sense (confession and avoidance), the bankruptcy sense (avoidance powers under §§ 544–548 of the Bankruptcy Code), and the constitutional sense (the canon of constitutional avoidance). These are entirely separate doctrines. Keyword searching on "avoidance" alone will surface all three; researchers must use surrounding context to identify which is operative.

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Historical Dictionary Support

Bouvier's treatment appears in the context of pleas in bar, which Bouvier divides into those that traverse (deny) and those that confess and avoid. The entry situates the doctrine correctly: a plea of confession and avoidance admits the plaintiff had a cause of action but asserts it is defeated by subsequent matter. Bouvier cites Chitty on Pleading and Stephens on Pleading — the two dominant nineteenth-century treatise authorities on common law pleading form — and references Coke on Littleton, reflecting the doctrine's deep common law roots. The entry's framing around pleas in bar is accurate and useful: it clarifies that confession and avoidance is not a general-purpose device but a specific response within the architecture of common law pleading, occupying the space between a traverse and a demurrer.

What Bouvier does not address — because it postdates his editions — is how the doctrine maps onto modern pleading under the Federal Rules. Chitty's and Stephens's treatises, cited by Bouvier, provide far greater technical detail on the formal requirements and are the appropriate sources for researchers needing the full common law pleading framework.

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Jurisdictional Note

Jurisdictions that retain code pleading or modified common law pleading rules may preserve more of the traditional confession-and-avoidance vocabulary than federal courts and FRCP-model states. Louisiana's civil law pleading tradition uses different structural concepts entirely. Researchers working in equity pleading contexts should note that confession and avoidance operated somewhat differently in chancery practice than at common law.

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Encyclopedia Cross-Reference

The Law Mind Business Organizations & Corporate Law Encyclopedia — Bankruptcy General: Avoidance Powers (Preferences, Fraudulent Transfers — Sections 544–548): for the distinct bankruptcy doctrine sharing the avoidance label.

The Law Mind Torts & Personal Injury Encyclopedia — Defenses to Negligence: Mitigation of Damages (Avoidable Consequences): for the tort-law concept of avoidable consequences, which is structurally parallel (defendant raises plaintiff's conduct to defeat or reduce recovery) but doctrinally separate.

The Law Mind Constitutional Law Encyclopedia — Constitutional Avoidance: for the canon of statutory construction directing courts to avoid unnecessary constitutional questions, another distinct use of the avoidance term.

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AND AVOIDANCEmain

Bouvier's Law Dictionary • 1928

Pleas in bar deny that the plaintiff has any cause of action., 1 Chitty, Pl. 407; Co. Lit. 303 b. They either conclude the plaintiff by matter of estoppel, show that he never had any cause of action, or, ad- mitting that he had, insist that it is de- termined by some subsequent matter. Steph. Pl. And. ed. 448; Britt. 92 § 190. They either deny all or some essential part of the averments in the declaration, in which case they are said to traverse it, or, admitting them to be true, allege new facts which obviate and repel their legal effect, in which case they are said to confess and avoid; Steph. Pl. And. ed. 146. The term is often used in a restricted sense to denote what are with propriety called special pleas in bar. These pleas are of two kinds; the general issue, and special pleas in bar. The general issue denies or takes issue upon all the material allegations of the declara- tion, thus compelling the plaintiff to prove all of them that are essential to support his action. There is, however, a plea to the action which is not strictly either a general issue or a special plea in bar, and which is called a special issue, which denies only some particular part of the declaration which goes to the gist of the action. It thus, on the one hand, denies less than does the general issue, and, on the other hand, is distinguished from a "special plea in bar" in this.-that the lat- ter universally advances new matter, upon which the defendant relies for his defence, which a special issue never does; it simply denies. Lawes, Pl. 110, 145; Co. Litt. 126 a; Gould, Pl. 5th ed. ch ii. § 38, ch. vi. § 8. The matter which ought to be so pleaded is now very generally given in evidence under the general issue. 1 Chitty, Pl. 415. A plea which merely amounts to the general issue, though not such in form, is bad; 84 Md. 414. Special pleas in bar admit the facts al- leged in the declaration, but avoid the ac- tion by matter which the plaintiff would not be bound to prove or dispute in the first instance on the general issue. Ld. Raym. 88. They are very various, accord- ing to the circumstances of the defendant's case: as, in personal action the defendant may plead any special matter in denial, avoidance, discharge, excuse, or justifica- tion of the matter alleged in the declara- tion, which destroys or bars the plaintiff's action; or he may plead any matter which estops or precludes him from averring or insisting on any matter relied upon by the plaintiff in his declaration. The latter sort of pleas are called pleas in estoppel. In real action, the tenant may plead any mat- ter which destroys and bars the demand- ant's title; as, a general release; Steph. Pl. 115. The general qualities of a plea in bar are -first, that it be adapted to the nature and form of the action, and also conformable to the count. Co. Litt. 303 a; 285 b; Bac. Abr. Pleas (I); Rolle 216. Second, that it answers all it assumes to answer, and no more. Co. Litt. 303 a; Com. Dig. Pleader (E 1, 36); 1 Saund. 28; 2 B. & P. 427. Third, in the case of a special plea, that it confess and admit the fact. 3 Term 298; 1 Saund. 28, 14; 10 Johns. 289. Fourth, that it be single. Co. Litt. 307; Bac. Abr. Pleas (K 1, 2); 2 Saund. 49, 50. Fifth, that it be certain. Com. Dig. Pleader (E 5-11, C 41). See CERTAINTY; PLEADING. Sixth, it must be direct, positive, and not argu- mentative. See 6 Cra. 126; 9 Johns. 313. Seventh, it must be capable of trial. Eighth, it must be true and capable of proof. The parts of a plea are-first, the title of the court. Second, the title of the term. Third, the names of the parties in the margin. These, however, do not constitute any substantial part of the plea. The sur- names only are usually inserted, and that of the defendant precedes the plaintiff's: as, "Roe v. Doe." Fourth, the commence- ment, which includes the statement of the name of the defendant, the appearance, the defence, see DEFENCE, the actio non, See ACTIO NON. Fifth, the body, which may contain the inducement, the protes- tation, see PROTESTATION, ground of de- fence, quæ est eadem, the traverse. Sixth, the conclusion. Dilatory pleas go to destroy the partic- ular action, but do not affect the right of action in the plaintiff, and hence delay the decision of the cause upon its merits. Gould, Pl. ch. ii. § 33. This class includes pleas to the jurisdiction, to the disability of the parties, and all pleas in abatement. All dilatory pleas must be pleaded with the greatest certainty, must contain a dis- tinct, clear, and positive averment of all material facts, and must in general, enable

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