CACI No. 3431. Affirmative Defense - In Pari Delicto

Judicial Council of California Civil Jury Instructions (2020 edition)

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3431.Affirmative 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.
To 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 plaintiff 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 1142], internal citations omitted.)
Secondary Sources
1 Witkin, Summary of California Law (10th ed. 2005) Contracts, §§ 591-607
8 Antitrust Laws & Trade Regulation, Ch. 164, Pleadings in Antitrust Actions,
§ 164.05[2][b] (Matthew Bender)
1 Matthew Bender Practice Guide: California Unfair Competition and Business
Torts, Ch. 5, Antitrust, 5.91
3432-3439. Reserved for Future Use
594
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