First, hold harmless and indemnify don’t concern who has the right to defend against a given claim. I generally address that issue at some length, rather just throwing in the word defend.

Second, in the unlikely event that a contract might be challenged as lacking consideration, the best way to help establish that the contract is in fact supported by consideration would be to use the recitals to clearly lay out the background. Relying on the gibberish that constitutes the traditional recital of consideration would likely not be helpful in that regard. I discuss this in my Business Law Today article.

Ken

I agree with many of your thoughts. However I do comment on two:

1. Indemnification: Under Ohio law, to get indemnification and defense, the parties must specify “defend and indemnify” in the agreement.

2. Precatory language in recitals: I would disagree on not stating that consideration has been given – when you have an apparently one-sided agreement or amendment, it is useful to state that consideration has been given. It’s such a Contracts I issue that many of us forget it in drafting.

Thanks!

Regards,
Lisa Sotir Ozkan