demurrer

A demurrer is a procedural challenge to a pleading in civil litigation. It contends that, even assuming all the factual allegations in the pleading to be true, they do not state a legally actionable claim.

Historically, demurrers were a common-law device used to test the sufficiency of a complaint before discovery. They may address either general sufficiency or specific defects. Some systems recognize general demurrers (claiming the pleading is fatally defective on its face) and special demurrers (identifying particular defects such as ambiguity, misjoinder, or duplicity).

On a demurrer, the court will either sustain the demurrer and dismiss the action (often with leave to amend) or overrule the demurrer, allowing the case to proceed on the existing pleading. A sustained demurrer generally means the plaintiff has not stated a claim to relief as a matter of law, while an overruled demurrer means the claim may proceed.

A demurrer tests legal sufficiency rather than factual accuracy. The court accepts the factual allegations as true for purposes of the challenge but does not consider evidence outside the pleadings.

Today, the use of demurrers varies by jurisdiction. In federal courts and many states, the practice has largely been replaced by motions to dismiss for failure to state a claim under Rule 12(b)(6) or equivalent, though some jurisdictions retain demurrers with general and special varieties. In criminal practice, analogous devices exist in some systems as demurrers to indictments or informations, though many jurisdictions use different mechanisms to challenge charging documents. See also pleading, motion to dismiss.