In almost every cannabis litigation webinar we’ve done, and in many of our past posts discussing breach of cannabis contracts (the general breakdown of this claim is here), we’ve stressed the importance of memorializing good cannabis business agreements – in writing – to save yourself from potential or protracted litigation down the line.
Still, even the best cannabis contracts can become the subject of breach of contract claims depending on the surrounding circumstances. In today’s post, we’re going to discuss the most common affirmative defenses to a breach of contract claim that might be applicable to a defendant’s situation.
A mistake of fact or law can be an affirmative defense to a breach of contract claim. This falls into two separate categories: unilateral mistake and bilateral mistake. To win on a unilateral mistake defense, the defendant must prove the plaintiff (a) knew the defendant was mistaken, and (b) plaintiff used that mistake to take advantage of the defendant. Note that the defendant does have a duty to make a “reasonable inquiry” to understand the contract (meaning, you can’t just bury your head in the sand and later claim mistake). To win on a bilateral mistake defense, the defendant must
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