“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 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.

About the author

Ken Adams is the leading authority on how to say clearly whatever you want to say in a contract. He’s author of A Manual of Style for Contract Drafting, and he offers online and in-person training around the world. He’s also chief content officer of LegalSifter, Inc., a company that combines artificial intelligence and expertise to assist with review of contracts.