Indemnification Clauses: Contract for Real Property
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FAQ
An indemnification clause is a legally binding agreement between two parties specifying that one party (the indemnifying party) will compensate the other party (the indemnified party) for any losses or damages that may arise from a particular event or circumstance.
Example 1: A service provider asking their customer to indemnify them to protect against misuse of their work product. Example 2: A rental car company, as the rightful owner of the car, having their customer indemnify them from any damage caused by the customer during the course of the retnal.
A typical indemnification clause consists of two separate and distinct obligations: an obligation to indemnify, and an obligation to defend.
To indemnify means that the seller will reimburse the buyer for a loss or liability. To defend means that the seller will pay the buyer's legal fees for suits that arise from specific risks articulated in the contract.
Indemnity clauses can include 'hold harmless' wording under which one party agrees that the other will not be liable for any losses that the first party suffers arising from the specified events. It is always advisable that you seek independent legal advice on all contracts from a contract solicitor.
Put simply, no, an indemnity is not required to recover loss suffered under a contract. If a party has suffered loss under a contract and there is no indemnity to rely on, a party can rely on their rights under common law to make a claim for damages against the breaching party to recover the loss suffered.
Generally, indemnification is the buyer's remedy for a breach of any promises made in the purchase agreement or losses incurred relating to specific liabilities outlined in the purchase agreement. Indemnification allocates the risk of various post-closing losses between buyer and seller.
The best example of indemnity would be insurance indemnification. Let's say the commercial property owner has consistently paid insurance premiums for the property. The money is paid to an insurance company that promises to take full responsibility for repaying any losses if any loss or damages ever occurs.
