Indemnification Carveouts: Which Are Your Favorites?

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

Don’t Consider Terms of Art Out of Context

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

Contract-Drafting Misinformation in the Marketplace of Ideas

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

Be Clear About Whether Indemnification Covers Only Nonparty Claims

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

“Shall Indemnify and Keep Indemnified”

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

“Defend” Doesn’t Begin to Address Indemnification Procedures

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

My Indemnification Language

[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

“Indemnify For, From, and Against”

In the discussion with Brian Buckham that gave rise to today’s other post on indemnification, Brian also mentioned use of the triplet for, from, and against in indemnification language. So I looked into that too. As far as I can tell, for, from, and against were originally linked to indemnify, hold harmless, and defend, as in the following from EDGAR: … Read More