The Twelfth Court of Appeals recently held that lack of consideration is an affirmative defense that must be plead. In this case involving a will contest, the court reversed an order granting a no-evidence motion for summary judgment on the basis that the agreement at issue lacked consideration. The court ruled that consideration for a written instrument is presumed. The Court also held, however, that lack of consideration is an affirmative defense. Thus, the court concluded, it was improper for a movant to utilize a no-evidence motion regarding a claim on which the movant has the burden of proof. The court’s opinion in Burges v. Mosley can be found here.
In my opinion, there is a problem with treating lack of consideration as an affirmative defense.Continue Reading Lack of Consideration Revisited