In my recent post on hold harmless I quoted the Black’s Law Dictionary definition of indemnify: “1. 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.”)
This definition reminded me of an oddity of indemnify. When given the meaning of the first element of the Black’s definition, it uses language of obligation (Acme shall indemnify Widgetco), but when given the meaning of the second element of the Black’s definition, it uses language of performance (Acme hereby indemnifies Widgetco). To my knowledge, indemnify is the only verb that accomplishes this neat trick.
Which usage predominates? Lexis didn’t allow me to search the SEC’s “material contracts” database for instances of hereby indemnifies, and it doesn’t distinguish between indemnify and indemnifies. So I searched for both indemnify and indemnifies and scrolled through the results until I got bored (which happened alarmingly quickly). Instances of indemnify in language of obligation (including suboptimal variants, such as agrees to indemnify) seemed to outnumbered its use in language of performance by about twenty to one.
The findings of this drastically unscientific survey are consistent with what I found on Google: separate searches for hereby indemnifies and hereby indemnify resulted in a total of 483,000 hits, whereas shall indemnify racked up 3,370,000 hits.
What does all this mean for the drafter? The days of hereby indemnifies would seem to be numbered. I recommend that we all hasten its demise by using shall indemnify.
Incidentally, I was delighted to encounter this fence-straddling usage: The Company will, and hereby does, indemnify Investor.