COUNTERCLAIM - The Law Mind Legal Dictionary

COUNTERCLAIMAuthored

The Law Mind • 1039 words

Definition

A claim asserted by a defendant against a plaintiff within the same action in which the plaintiff has sued the defendant. Rather than filing a separate lawsuit, the defendant uses the counterclaim to pursue its own relief — damages, declaratory judgment, or other remedies — against the opposing party in the existing proceeding.

Two categories define the landscape:

1. Compulsory counterclaim: A claim that arises from the same transaction or occurrence as the plaintiff's claim. Under modern procedural rules, a defendant who fails to assert a compulsory counterclaim may be barred from raising it in any subsequent action.

2. Permissive counterclaim: A claim that does not arise from the same transaction or occurrence as the plaintiff's claim. A defendant may, but generally is not required to, bring a permissive counterclaim in the pending action. Failure to do so does not forfeit the claim.

Common Language

Modern common usage (Wiktionary): "A suit filed by a defendant against a plaintiff secondary to the original complaint" or "a claim that counters another."

Historical common usage (Webster's 1913): "A claim made by a person as an offset to a claim made on him."

The everyday sense of counterclaim — simply pushing back against someone else's claim — is close enough to the legal sense to be intuitive, but dangerously imprecise. The Webster's framing ("offset") conflates counterclaim with setoff, which is a distinct doctrine with different procedural and substantive rules. The Wiktionary framing ("secondary to the original complaint") understates the counterclaim's independence: a counterclaim is not subordinate to the plaintiff's action. It is an affirmative assertion of independent relief that can survive even if the original complaint is dismissed.

Common Confusion

Counterclaim vs. setoff: A setoff reduces or cancels the plaintiff's recovery by an amount the defendant is owed; it is purely defensive. A counterclaim seeks affirmative relief for the defendant and can result in a judgment against the plaintiff exceeding any amount the plaintiff recovers — or standing entirely on its own. The historical tendency to treat these as interchangeable (visible in Webster's 1913 and some older equity pleading) obscures a procedural distinction that matters acutely in modern practice.

Counterclaim vs. cross-claim: A counterclaim runs against an opposing party (plaintiff against defendant, or vice versa). A cross-claim runs against a co-party — a defendant suing another defendant, for example. Researchers working with older materials should be alert to inconsistent usage.

Counterclaim vs. recoupment: Recoupment is an even narrower doctrine, limited to claims arising from the same contract or transaction as the plaintiff's claim and operating only to reduce — not exceed — the plaintiff's recovery. Modern procedural codes have largely absorbed recoupment into the compulsory counterclaim framework, but the term appears with independent force in older equity and common law sources.

Recognized Forms

/SUBTYPES

Compulsory counterclaim: Must be pleaded or is waived. Federal Rule of Civil Procedure 13(a) is the model; many states follow similar language.

Permissive counterclaim: May be pleaded at defendant's election. No waiver consequences for omission.

Counterclaim in equity: Historically distinct from counterclaim at law. Equity courts developed their own framework for cross-demands before merger of law and equity. Pre-merger materials use this form with specific procedural implications that do not map directly onto modern practice.

Why It Matters in Research

The compulsory/permissive distinction is the most consequential structural feature of the counterclaim for corpus researchers, and it is almost entirely absent from pre-twentieth-century sources. Historical dictionaries, including Rapalje & Lawrence, predate the procedural codes that created this bifurcation. Researchers reading nineteenth-century materials on "counterclaims" are often reading about what modern law would classify as setoffs, recoupments, or permissive claims — without any of the waiver consequences that now attach to compulsory counterclaims.

The Field Code (New York, 1848) and its progeny introduced "counterclaim" as a statutory term of art, displacing the older common law vocabulary of set-off and recoupment in code pleading states. This created a generation of transitional authority — roughly 1850 to 1938 — where "counterclaim" appears in case law and treatises but carries varying procedural weight depending on whether the jurisdiction had adopted code pleading and how it interpreted the relevant statute.

The Federal Rules of Civil Procedure (1938) standardized the compulsory/permissive framework at the federal level, but state-law variation remains significant. A counterclaim characterized as permissive under one state's rules may be compulsory under another's, affecting research into res judicata and claim preclusion across jurisdictions.

When searching historical corpus materials, treat "set-off," "recoupment," and "cross-demand" as functional predecessors to counterclaim. Documents using these terms may be analyzing the same underlying question as a modern counterclaim analysis, just under different labels.

Historical Dictionary Support

The Rapalje & Lawrence entry retrieved in source material addresses appearance procedure rather than counterclaim substance — a retrieval artifact. This gap is itself informative: Rapalje & Lawrence, as a late nineteenth-century reference, reflects the transitional code pleading era, and the term counterclaim would have been relatively new statutory vocabulary at time of publication.

Webster's 1913 captures the ordinary understanding of the period — counterclaim as offset — without distinguishing the emerging procedural categories. This confirms that the compulsory/permissive bifurcation had not yet entered general legal consciousness by the early twentieth century, even as code pleading states were beginning to develop case law drawing the distinction.

Historical dictionaries from the common law period uniformly treat the subject through the lens of setoff and recoupment. Researchers should not expect to find "counterclaim" as a term of art in pre-Field-Code authorities.

Jurisdictional Note

Federal courts follow FRCP 13, which draws the compulsory/permissive line by transaction-or-occurrence. Most states have adopted analogous provisions, but the specifics vary — particularly regarding what counts as the "same transaction" and whether counterclaims against additional parties (impleader) are permitted. Louisiana's civil law tradition treats the subject under different conceptual vocabulary (reconventional demand) and researchers working in that jurisdiction should adjust search terms accordingly.

Encyclopedia Cross-Reference

See Law Mind Encyclopedia: Civil Procedure — Pleading and Parties; Claim Preclusion and Res Judicata; Historical Development of Code Pleading.

COUNTERCLAIMmain

Rapalje & Lawrence • 1888

§3. Notice of appearance. -Appearance is generally effected by delivering to the attorney for the plaintiff (or to the proper officer of the court), a memorandum or notice giving the title of the action, stating that the defendant appears in person or by his attorney or solicitor, as the case may be, giving the address of himself or his attorney, and stating whether he requires a declaration, complaint or statement of claim to be delivered. In England, the defendant must also produce a duplicate memorandum for sealing, which he afterwards sends to the plaintiff. Sm. Ac. 54 et seq. 6. Failure to appear.-If a defend. ant does not appear the plaintiff may in some cases enter judgment, and in other cases proceed with his action. See DEFAULT; JUDGMENT. 7. In bailable process.-Appearance has a peculiar meaning in bailable process (see BAIL; BAILABLE), where, to effect a complete appearance, the defendant is required to give ive bail to the action, that is, to provide de sufficient sureties, who enter into a recognizance to the effect that if judgment be given against him he shall either satisfy the plaintiff or render himself to prison; the ordinary kind of appearance was called "common appearance" by way of distinction. 28. What amounts to an appearance.-Anciently, the corporal appearance of the parties before the court was essential to the further prosecution of the litigation, and was compellable by process, but in modern times an appearance by attorney, as indicated supra ?? 2, 3, is sufficient, (save in the cases of infants, lunatics and married women, who must often appear in person or by their next friend, see GUARDIAN AD LITEM; PROCHIEN AMI); and almost any step taken by a defendant after the service of the writ or summons upon him, which may be deemed to imply a submission upon his part to the jurisdiction of the court, will be held a good and sufficient appearance. Thus, applying for and obtaining an extension of time to answer; serving papers indorsed by his attorney as such; making a motion in the case; serving his answer, &c., have been respectively held equivalent to an appearance; and, in all cases on contract, a judgment by default may be taken where there is no appearance. 4. Limited, or qualified appearance. Special forms of appearance are used in actions for the recovery of land; thus, any person appearing in such an action may by his appearance limit his defence to a part of the property. So, in ordinary actions, where a general appearance would have the effect to waive an irregularity in the procedure, a defendant 9. The different kinds.-An appeardesiring to question it may enter a limited ance is compulsory, when made in conor special appearance, designating the par-sequence of the service of process to ticular purpose for which he appears. compel appearance; conditional, when 5. Conditional appearance. - In coupled with conditions as to becoming chancery practice, where a defendant desires to object to the regularity of the proceeding by which the plaintiff seeks to compel his appearance, he must enter a conditional appearance, and then apply to the court to set aside the plaintiff's proceeding. This is the proper course to pur sue if a plaintiff irregularly obtains an order for substituted service of a writ on the defendant. (Dan. Ch. Pr. 459.) As to appearing gratis, under the old practice, see Id. 462. general (see supra & 5); general, when absolute and unconditional; gratis, when made by one not yet notified to appear or served with process; optional, when made by one under no obligation to appear, but who does so in order to save his rights; special, when made for some specific purpose, and not for all the purposes of the suit (see supra & 4); subsequent, when made by a defendant whose appearance has already been entered for him by the plaintiff; voluntary, when made in

COUNTERCLAIMn.

Websters Unabridged Dictionary (1913) • 1913

A claim made by a person as an offset to a claim made on him.

counterclaimnoun

Wiktionary (English) • 2026

Wiktionary contributors • CC BY-SA 4.0 • via Kaikki
Extracted and formatted for display by Law Mind. Source link opens the current Wiktionary page and its contributor history; it is not a frozen copy of this extract.

A suit filed by a defendant against a plaintiff secondary to the original complaint. | A claim (assertion) that counters (disputes) another.

counterclaimverb

Wiktionary (English) • 2026

To file a counterclaim.

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