July 19, 2019

Archives for February 22, 2012

Legal Writing Pro: Are “Indemnify” and “Hold Harmless” the Same?

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?

Defend Yourself

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.

Want More?

For more on indemnification and other key boilerplate provisions, I highly recommend Tina L. Stark’s Negotiating and Drafting Contract Boilerplate (2003).

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  1. Mellingkoff’s Dictionary of American Legal Usage 286 (1992).
  2. 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.”).

Ross Guberman is the founder and president of Legal Writing Pro, an advanced legal-writing training and consulting firm. He has conducted more than a thousand programs on three continents for many of the largest and most prestigious law firms and for dozens of state and federal agencies and bar associations. Ross is also a Professorial Lecturer in Law at The George Washington University Law School, where he teaches an advanced seminar on drafting and writing strategy. When you see the logo, you’re reading an article from Legal Writing Pro, where the article originally appeared.

Tenth Circuit: Applicant for Public Assistance Who Does Not Indicate Intent to Receive or Not to Receive Voter Registration Form Must Be Provided One under NVRA

The Tenth Circuit Court of Appeals published its opinion in Valdez v. Duran on Tuesday, February 21, 2012.

The Tenth Circuit affirmed the district court’s decision. New Mexico’s Human Services Department (HSD) policy, which it believed was compliant with Section 7 of the National Voter Registration Act (NVRA), “was to provide a benefits applicant with a voter registration application form only if he or she checked ‘YES’ on the declination provision or verbally indicated that he or she would like to register to vote. As a result, HSD did not provide voter registration application forms to benefits applicants who left the declination provision blank and who did not otherwise respond ‘yes’ if a verbal inquiry regarding voter registration was made by an HSD employee.” Generally speaking, the NVRA “requires state public assistance offices to be designated as voter registration agencies and, in turn, to distribute with each application for public assistance a mail voter registration application form, unless the applicant, in writing, declines to register to vote.” Respondents allege that the policy of HSD violated the NVRA by not distributing the voter registration form to those who did not check either box. The district court agreed.

Petitioners argue that the district court misconstrued the provisions of the NVRA and that Respondents’ “counsel should be estopped from taking a position before the district court in this case that is inconsistent with the position they took before a federal district court” in a similar case. The Court disagreed.

“If an applicant is passive, i.e., does not check either the ‘YES’ or ‘NO’ box on the declination form and thereby indicate his or her intent in writing, HSD must . . . still provide him or her with a voter registration form, but is relieved from providing the applicant with assistance in completing that form. On the other hand, if an applicant checks the ‘NO’ box on the information form, he or she would be deemed to have declined, in writing, the opportunity to receive a voter registration form, and HSD would thus be relieved . . . from providing the applicant with a voter registration form.” The Court also found that “[j]udicial estoppel does not bind counsel, when representing a variety of parties, to always take the same position on a question.”

Tenth Circuit: Unpublished Opinions, 2/21/12

On Tuesday, February 21, 2012, the Tenth Circuit Court of Appeals issued one published opinion and six unpublished opinions.

Unpublished

Christensen v. Park City Municipal Corp.

United States v. Canas

Kenney v. AG Equipment Co.

United States v. Bradley

United States v. Gauruder

United States v. Hix

No case summaries are available for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.