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Drafting reformers hate couplets. They say, for example, that “terms and conditions” means nothing more than “terms.” But can couplet aversion go too far? Take “indemnify” and “hold harmless.” Double trouble? Or a distinction with a difference?
- Double Trouble: At least one authority claims that “hold harmless” protects against losses and liabilities, while “indemnify” protects against losses alone.[1]
- Distinction Without a Difference: Black’s Law Dictionary treats the two as near synonyms. And some experts even suggest cutting “hold harmless” and leaving just “indemnify.” So what’s the deal?
A Couplet to Love
My Advice: Leave “indemnify and hold harmless” intact. If anything, you should add to this phrase, not subtract. Here are three helpful additions:
1. Indemnify for What?: You can include language that clarifies what the indemnifying party promises to indemnify:
Seller shall hold harmless and indemnify Buyer against any losses, liabilities, and claims arising out of or relating to this transaction.
Tip: You should also state whether the seller intends to indemnify the buyer for claims arising from the buyer’s own negligence. While some courts have suggested that “hold harmless” is broader than “indemnify” and thus prevents a seller from holding a buyer responsible for claims arising out of the buyer’s own negligence, relying on this distinction could subject your client to unnecessary liability. To be safe, clearly delineate whether the seller must indemnify the buyer for such claims.
2. Indemnify When?: You can also spell out when the seller is obliged to indemnify the buyer: When the buyer incurs a loss or a liability? Thirty days after the buyer gives notice? After the claim is resolved?
3. Will the Seller Defend the Buyer Against Claims? If the seller intends to defend the buyer against claims, you could also add “and defend.”
“Seller shall hold harmless, indemnify, and defend Buyer.”
And on that note, I hope that you will hold me harmless for these suggestions!
