Yesterday I received from longtime reader Chris Lemens an email complaining about someone opting for indemnify, hold harmless, and exonerate. It’s bad enough to have hold harmless, not to mention defend—why add exonerate! I looked into indemnify plus exonerate, and yes, it’s a thing: But inspired by Chris, I looked for other gratuitous additions to indemnify, and I found protect: … Read More
[Warning: I made this first bit up just to accommodate my fish-gutting analogy. Why that analogy? Because it came to mind so I went with it!] Last month I was isolating in Alaska with my lacrosse buddies, Declan Smartwood, Jr. and Shackleford Stanwick, Sr. We spent our time salmon fishing. I’m not a fan of killing fish, but Dec and … Read More
As part of my LegalSifter work, I’ve been exploring carveouts to indemnification provisions and creating specs for sifters—bits of AI software—to spot them. Carveouts state that indemnification doesn’t apply to certain kinds of liabilities. The ones I’ve spotted cover liabilities arising out of the following: intentional misconduct bad faith fraud negligence breach of the contract I’m not sure why people … Read More
Today I received the following email from a reader: I have been reading your post from July 2012 (Revisiting “Indemnify”).” There seems to be an important distinction between “indemnify” and “hold-harmless” that seems to be getting overlooked (or I missed something in my brief reading). According to Black’s Law Dictionary “hold-harmless” means “to absolve (another party) from any responsibility for … Read More
The Google Ngram Viewer is a neat tool. It allows you to check the relative frequency with which words and phrases appear, over time, in Google’s corpus of millions of digitized books. It follows that the Ngram Viewer can help you build a case that a given word or phrase is the more modern choice than another word or phrase … Read More
Last night I did the following retweet of a live tweet from a conference: My intent isn’t to embarrass anyone—hence my amateurish redacting of the name of the law firm that offered this advice. Instead, it gives me an opportunity to make the following points: There’s beaucoup misinformation out there. Indeed, what’s in the tweet is what passes for conventional wisdom … Read More
You like fights over indemnification language? OK, here’s a reliable source of disputes: whether an indemnification provision covers just nonparty claims or whether it also covers claims between the parties. I wrote about that in this 2011 post, but given the perils of copying and pasting dysfunctional contract language, you can expect that sort of dispute to crop up in … Read More
There’s no end to the weirdness that drafters dream up. Evidently, it’s not enough that we have a choice between hereby indemnifies and shall indemnify (see this 2006 blog post). Recently I saw an additional variant, shall indemnify and keep indemnified. It appears in hundreds of contracts on the SEC’s EDGAR system. It’s analogous to shall inflate the balloon and keep … Read More
In MSCD 13.334, and in this post, I say the following regarding defend in the witless triplet indemnify, defend, and hold harmless: Drafters routinely tack defend on to indemnify and hold harmless, but that doesn’t begin to address how defense of nonparty claims is to be handled. To avoid uncertainty and the possibility of dispute, address that explicitly in provisions governing indemnification procedures. … Read More
[Updated most recently 18 October 2021. For details, go to the end of this post.] Over the years I’ve posted plenty of items about indemnification. (If you click on the “Indemnification” category to the right, you’ll be offered sixteen different posts.) But I’ve not posted any indemnification language … until now! Yes, I know, I feel very emotional about it … Read More
