I’ll be in London in November. In addition to doing a “Drafting Clearer Contracts” seminar on 5 November for my friends at UCL Faculty of Laws (here), I’ll be speaking on 1–2 November at The Legal English Event.
I’m looking forward to the The Legal English Event, so I noticed this tweet:
What does indemnify mean? What does warrant mean? How is it different from represent? International lawyers regularly ask these questions.
Answers can be found in a new book launced at the #LegalEnglishEvent. We agree with @KonciseD – these words need to GO pic.twitter.com/yHBRrmxflt
— The Legal English Event (@legal_event) July 30, 2018
I hope the organizers don’t mind my using it to explore how one goes about choosing terminology.
My views on indemnify and warrant are more nuanced than saying they have to go. In this post, I’ll limit myself to indemnify. Yes, it’s a term of art. There’s always a simpler alternative to a term of art: instead of saying Acme shall indemnify Widgetco against, you could say Acme will be liable to Widgetco for.
But indemnify is entrenched. And unlike hold harmless, it has a settled meaning. The risks posed by indemnify are also posed by will be liable to. For example, does it cover just nonparty claims, or also claims between the parties? And more broadly, when does it make sense to provide for an explicit remedy, in addition to whatever default remedies are available? You have to figure out whether indemnification—whether you call it that or give it some other label—makes sense, then you have to specify exactly what it covers, to avoid finding yourself in one of the fights over indemnification that occur depressingly often. (Go here for my indemnification language.)
Because the concept of indemnification is entrenched and because indemnify doesn’t pose an appreciably greater risk than the simpler alternative, I’ve decided that the cost of seeking to get rid of indemnify for purposes of business contracts would be great and the benefit would be negligible. (Consumer contracts might be another matter.)
I’m in the business of selling change to a notoriously conservative profession, so I have to pick my battles carefully.
I discussed this with Catherine Mason, an organizer of The Legal English Event and co-author of the book mentioned in the tweet. She approaches the subject from the perspective of lawyers who don’t have English as a first language. I agree with Catherine that they’re in a tough position. When you learn to converse in a foreign language, you can take small steps, and people will generally make an effort to accommodate you. But when you’re dealing with contracts, you have no choice but to wrangle the full gruesomeness of it all.
2 thoughts on ““Indemnify” and Picking Your Battles Over Terminology”
Whether “indemnify” or “shall be liable to” is used is less controversial I find than the remainder of the language. I try to get “hold harmless” struck and stick with “indemnify and defend”. My bias is that indemnity should be used only for third party claims and be liable for party-to-party claims.
Cal civil code 2778(3) — addressing whether and how there’s a duty to defend ,,(and fees on fees) are all matters one might want to address.