Also known as: sets up · setting up · set-up · establish
Written by attorneys · grounded in primary & secondary sources — see below
An action by which a litigant asserts or pleads a particular defense or claim in response to an opposing party's position. The assertion places the matter formally before the court for adjudication.
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Simon Stern and Sasha Stone agreed to rob a bank they believed held cash reserves. When police revealed the bank had already closed, Simon attempted to set up factual impossibility as a defense to the conspiracy charge. The court rejected the defense because the agreement and intent alone completed the offense at common law.
Stella Shapiro purchased land from Sebastian Santos without recording her deed. When Sierra Singh later bought the same parcel and recorded first, Stella set up her prior interest under the notice statute. The court held that Sierra prevailed as a bona fide purchaser without notice.
Spectrum Financial challenged a state tax on interstate shipments by setting up the argument that Congress alone holds power under Article I Section 8. The court examined whether the tax regulated commerce among the states or merely affected it incidentally.
Synergy Systems moved for summary judgment on a contract claim. Sapphire Technologies set up the defense that the record contained no admissible evidence establishing an essential element of the claim. The court denied the motion after finding a genuine dispute remained.
Selena Singh faced a malpractice suit from a former client. She set up the exception under Model Rule 1.6(b)(5) to reveal limited client information necessary to defend the claim. The tribunal permitted the disclosure because it responded directly to allegations concerning her representation.
Southland Foods sued for breach after a written supply contract omitted an earlier oral pricing term. The buyer set up the prior negotiation to show the writing was not completely integrated. The court admitted the evidence under the Restatement rule to determine integration.
A party sets up a defense by formally asserting it in pleadings or motions so the court can adjudicate the issue. The assertion places the matter at issue and shifts the burden to the opposing party to respond or rebut.
Supporting sources
…Constitution vests the whole judicial power in one supreme court and such inferior courts as Congress shall ordain and establish. This power is extended to all cases arising under the laws of the United States and consequently may be exercised over the present case because the right claimed is given by a law of the…