3431 . Af firmative Defense - In Pari Delicto
[ Name of defendant ] claims that [ name of plaintiff ] may not recover
because [ name of plaintiff ] is equally responsible for the harmful conduct.
T o succeed, [ name of defendant ] must prove all of the following:
1. That [ name of plaintiff ] and [ name of defendant ] have substantially
equal economic strength;
2. That [ name of plaintiff ] is at least equally responsible for the
harmful conduct as [ name of defendant ]; and
3. That [ name of plaintiff ] was not compelled by economic pressure
to engage in the harmful conduct.
New September 2003
Sources and Authority
• “Cases . . . have declared that if a plaintif f does not bear equal responsibility for
establishing the illegal scheme, or if he is compelled by economic pressures to
accept such an agreement, he cannot be barred from recovering because he
participated therein.” ( Mailand v . Burckle (1978) 20 Cal.3d 367, 381 [143
Cal.Rptr . 1, 572 P .2d 1 142], internal citations omitted.)
Secondary Sources
1 W itkin, Summary of California Law (1 1th ed. 2017) Contracts, §§ 602-621
8 Antitrust Laws & T rade Regulation, Ch. 164, Pleadings in Antitrust Actions ,
§ 164.05[2][b] (Matthew Bender)
1 Matthew Bender Practice Guide: California Unfair Competition and Business
T orts, Ch. 5, Antitrust , 5.91
3432-3439. Reserved for Future Use
Page last reviewed May 2024
Kathryn Robb, National Director of the Children’s Justice Campaign at Enough Abuse, discusses Vice President Kamala Harris’s unusual mention of child sexual abuse during her Democratic National Convention speech and its broader implications for addressing this issue in America.
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