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What Is a Real Defense?

By G. Wiesen
Updated May 16, 2024
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A real defense that can be used by someone who is the defendant in a civil case regarding payment for a negotiable instrument, which is a document promising payment that can be held at the value of that payment. If the person providing someone else with such an instrument refuses to value the instrument and make the necessary payment, then he or she can have a civil suit brought against him or her in many jurisdictions. As a defendant in this type of suit, someone can use a real defense to indicate that payment is not warranted; such a defense can include infancy and duress at the time of signing.

The idea behind a real defense is that it provides someone who may have issued a negotiable instrument with a defense against action taken against him or her regarding payment on that instrument. Checks and promissory notes are examples of such an instrument, and not only indicate that payment will be made but can be seen as having in itself the value of such a payment. This type of instrument can also be passed from one owner to another, and the obligation to pay on it continues for the original issuer of the instrument.

Should payment not be made on such an instrument, then the holder of it can bring a civil suit against the issuer under commercial laws in many countries. The defendant in this type of case can utilize a real defense in an attempt to indicate that he or she should not have to pay on the instrument. One of the strengths of a real defense is that it can be used against an ordinary holder or a holder in due course. An ordinary holder is the original person an instrument was issued to, while a holder in due course is someone who has purchased or otherwise legally acquired an instrument.

Different jurisdictions can provide different definitions for what types of real defense are allowed and viable, though infancy is a common one. This is a defense in which someone under the age of majority in his or her area cannot be held to the terms of an instrument he or she issued. Similarly, someone who is found mentally incompetent or legally insane is also not held to the terms of an instrument to which he or she was a party. Duress is often used as a real defense as well; if someone can prove that an instrument was issued under threat of death or physical harm, then he or she can often have the instrument nullified.

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