Demurrer

A demurrer is a procedural device by which a party (usually the defendant) asks the court to dismiss a complaint on the ground that, accepting the opposing party's factual allegations as true, the pleading still fails to state a legally recognized claim. It tests the law, not the facts.

Historically rooted in English common-law pleading, the demurrer was a standard response alongside the plea and the traverse. It allowed a defendant to say, in effect, "so what?" — conceding the facts arguendo while denying their legal consequence. Blackstone discussed it in his Commentaries on the Laws of England as one of the principal modes of joining issue.

In modern U.S. practice, most federal courts and a majority of states have abolished the term in favor of functionally equivalent motions. Under the Federal Rules of Civil Procedure, adopted in 1938, Rule 12(b)(6) governs motions to dismiss for "failure to state a claim upon which relief can be granted" — the direct successor to the general demurrer. England abolished demurrers in civil practice in the late 19th century following the Judicature Acts.

A handful of U.S. jurisdictions retain the name. California still uses demurrers in civil cases under Code of Civil Procedure §§ 430.10–430.41, distinguishing between general demurrers (no cause of action) and special demurrers (uncertainty, misjoinder). Pennsylvania and Virginia also retain forms of the device.

Key features:

• Admits facts solely for the purpose of argument — the demurring party does not concede them generally.
• Raises pure questions of law for the judge, not the jury.
• If sustained, courts typically grant leave to amend unless the defect cannot be cured.

For IR and policy researchers, the demurrer matters mainly when reading older case law, comparative common-law systems, or California litigation involving regulatory agencies and public-interest plaintiffs.