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?
At least one authority claims that “hold harmless” protects against losses and liabilities, while “indemnify” protects against losses alone.1
Yet not all courts agree. Black’s Law Dictionary treats the two as near synonyms. And some experts even suggest cutting “hold harmless” and leaving just “indemnify.”
A Couplet to Love
My advice: Leave “indemnify and hold harmless” intact. If anything, you should add to this phrase, not subtract.
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.
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?
If the seller intends to defend the buyer against claims, you could also add “and defend.” Thus “Seller shall hold harmless, indemnify, and defend Buyer.”
You Are Hereby Absolved
Some courts suggest that “hold harmless” is broader than “indemnify” because it prevents a seller, for example, from holding a buyer responsible for claims arising out of the buyer’s own negligence.2
But do you really want to rely on this distinction? Just state whether the seller intends to indemnify claims arising from the buyer’s own negligence.
For more on indemnification and other key boilerplate provisions, I highly recommend Tina L. Stark’s Negotiating and Drafting Contract Boilerplate (2003).
- Mellingkoff’s Dictionary of American Legal Usage 286 (1992).
- See, e.g., Rooz v. Kimmel, 55 Cal.App.4th 573, 582 (1997) (explaining that defendant not seeking indemnification but relying on “the general ‘hold harmless’ provision … to prevent plaintiff from directly recovering against defendant for damage he incurred from defendant’s own negligence.”).