[Update: For my more recent take on this issue, see this 2012 post.]
At a seminar I gave last week, I suggested that hold harmless and indemnify are essentially synonyms. Some participants were skeptical, so I thought I’d better research the issue.
Black’s Law Dictionary supports my view. It defines hold harmless as follows: “To absolve (another party) from any responsibility for damage or other liability arising from the transaction; INDEMNIFY.” (It defines indemnify as follows: “To reimburse (another) for a loss suffered because of a third party’s or one’s own act or default. 2. To promise to reimburse (another) for such a loss. 3. To give (another) security against such a loss.”)
But in Mellinkoff’s Dictionary of American Legal Usage, David Mellinkoff says that “hold harmless is understood to protect another against the risk of loss as well as actual loss.” He goes on to say that indemnify is sometimes used as a synonym of hold harmless, but that indemnify can also mean “reimburse for any damage,” a narrower meaning than that of hold harmless.
So it appears that the skeptical seminar participants and I were both right. But when looked at in a broader context, you should always be able to dispense with hold harmless. All it takes to ensure that indemnify is given its broader meaning is to have Acme agree to indemnify Widgetco against losses and liabilities. Black’s defines loss as “the disappearance or diminution of value, usu. in an unexpected or relatively unpredictable way,” and it defines liability as “A financial or pecuniary obligation.” If you use both these words, Acme would be indemnifying Widgetco against both the risk of loss as well as actual loss, to use Mellinkoff’s words. It would be redundant to have Acme also hold Widgetco harmless.
One of the pleasures of giving seminars is that issues crop up that I would otherwise never have thought to investigate. So my thanks go to last week’s skeptical participants.