The opinion of the court was delivered by: Shadur, District Judge.
MEMORANDUM OPINION AND ORDER
Instituto Nacional de Comercializacion Agricola ("Indeca"), a
quasi-national corporation organized under Guatemalan law, has as
part of its responsibility the purchase of foodstuffs and
agricultural staples for the Guatemalan people on international
markets. It sues a group of defendants for an allegedly
fraudulent scheme in which Indeca was bilked of over $5 million
in its attempted purchase of 6,000 metric tons of black beans
that proved to be non-existent.*fn1
Continental Illinois National Bank and Trust Company of Chicago
("Continental') has filed an amended answer, in part asserting 12
arguments labeled "affirmative defenses." Indeca now moves to
strike all those defenses as insufficiently pleaded or
insufficient as a matter of law. For the reasons stated in this
memorandum opinion and order, Indeca's motion is granted in part
and denied in part.
Indeca's Claimed Facts*fn2
Indeca sought to purchase 6,000 metric tons of black beans from
Rumex International, Inc. ("Rumex"). To facilitate that purchase
Indeca negotiated with Banco de Guatemala ("Banco") for the
issuance of a letter of credit (the "Letter"). Under the
provisions of the Letter (like all letters of credit), Banco as
issuing bank was required to render payment when presented with
documents in complete conformity with the Letter's requirements.
Because the seller of the beans was located in the United States,
Banco engaged Continental's services to confirm the Letter.
Banco in turn transmitted the documents to Indeca, which
received them September 24. On September 30 Indeca signed a
statement confirming that the documents conformed to the Letter's
requirements and authorizing payment to Rumex.
Time passed, and the beans (already overdue by September 30)
never arrived in Guatemala. In February 1981 Indeca's attorneys
communicated with Continental's attorneys and stated orally the
documents negotiated by Continental and then approved by Banco
and Indeca had not in fact conformed to the Letter.
Indeca brought suit against several defendants, including
Continental, to recover the money paid for the nonexistent beans.
Indeca charges Continental with (1) fraudulent conduct in
knowingly assisting Rumex in the fraudulent procurement of
payment of the Letter (Complaint Count IV) and (2) negligence in
accepting nonconforming documents (Complaint Count III).
Pleading Affirmative Defenses
Fed.R.Civ.P. ("Rule") 8(c) requires that some defenses be
pleaded affirmatively. Its list of 19 specific items is not
exhaustive: In addition, a party must set forth "any other matter
constituting an avoidance or affirmative defense." What the Rule
terms "an avoidance" — what the common law used to term a
"confession and avoidance" or "shift and avoidance" — is a more
restrictive concept than loose practice would have it. See
Black's Law Dictionary 55, 125 (5th ed. 1979).
This Court has discussed that problem at some length in Bobbitt
v. Victorian House, Inc., 532 F. Supp. 734, 736-37 (N.D.Ill.
1982). Because there may sometimes be difficulty in deciding
whether a particular matter would be put in issue by a general
denial, the pleader is usually given the benefit of the doubt
when setting forth a purported affirmative defense. But the basic
concept of an affirmative defense is an admission of the facts
alleged in the complaint, coupled with the assertion of some
other reason defendant is not liable. Id. at 736. Affirmative
defenses are of course also subject to the general pleading
requirements of Rules 8(a), 8(e) and 9(b), generally requiring
only a short and plain statement of the facts but demanding
particularity as to the circumstances constituting fraud and
mistake. Id. at 737; 5 Wright & Miller, Federal Practice &
Procedure: Civil § 1274.
Accordingly this Court must determine as to each of
Continental's "affirmative defenses" (for convenience, cited ...