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 it inflated. It suggests that an obligation to indemnify is somehow a wasting asset. I don’t see how that could make sense.
If I’m missing something, please let me know.
5 thoughts on ““Shall Indemnify and Keep Indemnified””
I hope it’s nonsense, because read literally, if I indemnify you and you blow the proceeds at roulette, it means I have to indemnify you again!
In spanish “indemnizar y mantener indemne” (which would literally translate to “indemnify and keep unscathed” or “unharmed” but could be translated to “indemnify and keep indemnified” )would mean to indemnify and keep free of any liability to a third party, so in fact makes the first party liable to indemnify any third party that seeks indemnification from the second party involved, different to only being liable against the contracting counterpart. I don’t know if this would apply in english language as well, Would like to confirm it.
Miguel, muchas gracias. [Soy portuguesa e tu sugestión es perfecta, porque tenemos lo mismo “indemnizar e manter indemne”]
Including the phrase “keep indemnified” is unnecessarily redundant IMO. If I agree to indemnify you for something, whether it comes up once, twice or three times doesn’t matter: I’ve agreed to indemnify you for it. And if I don’t fully indemnify you (so that I haven’t kept you indemnified) then I haven’t indemnified you as I agreed to do. “Shall [or will] indemnify…” is all that is required.
At a seminar in England, someone suggested that this usage means that you agree to cover liabilities that exist when the contract is signed and any liabilities that arise in the future. For various reasons, that doesn’t make sense.