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Template:Indemnity description: Difference between revisions
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{{box|An indemnity is nothing more than a contractual promise to pay a defined sum should a pre-agreed circumstance arise.}} | {{box|An indemnity is nothing more than a contractual promise to pay a defined sum should a pre-agreed circumstance arise.}} | ||
But | But in the hands of mediocre finance lawyers this noble purpose has been derailed. Rather than prudently allocating unwanted outcomes, [[indemnities]] are seen, by those who seek them, as [[smart bombs]] that surgically eliminate all evil whilst vouchsafing loved ones to the bosom of the Earth. To those asked for them, they have the hue of the closing stages of a Joseph Conrad novel. There is much misapprehension. Much Horror. Much Fear. Much Loathing. | ||
Much ignorance. | Much ignorance. | ||
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====What an indemnity is not==== | ====What an indemnity is not==== | ||
Of itself, an {{tag|indemnity}} isn't ''better'' than a contractual claim. It ''is'' a contractual claim. | Of itself, an {{tag|indemnity}} isn't ''better'' than a contractual claim. It ''is'' a contractual claim. It does not have a harsher accounting or [[regulatory capital|capital]] impact. You enforce it as you would a breach of contract: by suing the indemnitor for its failure to pay the indemnified amount. Since (if you've crafted it correctly) it is a claim to pay a pre-defined (or at any rate [[deterministic]]) sum, the elements you need to prove your claim are easily produced: a well-crafted indemnity is therefore apt for [[summary judgment]]. | ||
Note a point of profound importance. The failure to honour an indemnity is a breach of contract; the occurrence of circumstances permitting a claim under one is not. | |||
To claim under a (well-crafted) indemnity, therefore, there is no breach to allege; no loss to prove; no causation required, no value judgment needed to satisfy the indemnitor of your bona fides: all you need prove is: | |||
*There is an [[indemnity]] | *There is an [[indemnity]] | ||
* | *The indemnified event has happened; | ||
*You have calculated the indemnified sum | *You have calculated the indemnified sum. | ||
*You have demanded | |||
Recovering for a failure to honour a (well-crafted) indemnity is also straightforward: You must prove only the above, and the following: | |||
*You have demanded the indemnified sum from [[indemnitor]]; and | |||
*The [[indemnitor]] has not paid it. | *The [[indemnitor]] has not paid it. | ||