Comments on: Revisiting “Indemnify and Hold Harmless”

By: Ken Adams

Ken Adams — Fri, 13 Nov 2009 12:52:16 +0000

Mike: I wrote about the historical roots of redundant synonyms in this April 2009 blog post. I'd be interested to know when indemnify and hold harmless were first joined; it may have happened after English had prevailed as the language used by the legal profession in England. And of course we're hundreds of years past the point at which the two-languages approach had any utility. Ken

By: Mike Naughton

Mike Naughton — Thu, 12 Nov 2009 17:38:50 +0000

I believe that “Indemnify and hold harmless” is just another vestige from when contracts were written in both Law French/Latin (“indemnify”) and Middle English (“hold harmless”).

Despite the tendency of attorneys to try to attach meaning to this type of duplication, the re-statement doesn’t reflect any intention to make a distinction or add additional thoughts. It’s no more or less significant than a sticker on a bag with the words “trash” and “basura.”

By: Ken Adams

Ken Adams — Wed, 13 May 2009 20:15:11 +0000

Jack: What you understand those terms to mean is, unfortunately, irrelevant. The question is, what does the world at large understand them to mean? That’s why things get ugly. Ken

By: Jack

Jack — Wed, 13 May 2009 20:11:50 +0000

I always understood the terms to refer to three separate but related concepts. If I agree to indmenify you, I am promising to reimburse you for amounts you have already paid. If I agree to hold you harmless, I am promising to pay those amounts first, so you don’t have to. If I agree to defend you, I am promising to provide you with counsel at my expense. (I should have citations to back this up, but I don’t.)

By: Ken Adams

Ken Adams — Mon, 11 May 2009 15:03:52 +0000

Jim: I don’t share at all your confidence in indemnify, defend and hold harmless. Why use language that routinely results in lawsuits, not to mention wildly diverging judicial interpretations? Of course, not relying on jargon results in longer indemnification provisions. So be it. Ken

By: Jim Brashear

Jim Brashear — Mon, 11 May 2009 14:56:42 +0000

Clarity would favor indemnity provisions that describe in reasonable detail the procedures for defending indemnified claims. In some cases, the provisions address the types of costs explicitly, sometimes because of local law requirements (e.g., attorneys’ fees in NY).

I have, however, often encountered clients (particularly in a sales context) who prefer a much shorter version of the indemnity provision. In that case, “indemnify, defend and hold harmless” seems to succinctly convey the intent – even though it is jargon.