Template:Indemnitycapsule: Difference between revisions

Under an [[indemnity]], one party agrees to pay the other an agreed amount should a certain event occur during the {{t|contract}}.<ref>When you put it like that it sounds rather like a {{t|derivative}}, doesn’t it?</ref>

The “events” covered by an {{t|indemnity}} are usually unexpected costs and expenses the [[indemnified party]] incurs while performing obligations under the {{t|contract}}, the benefits of which accrue to the [[indemnifying party]]: things like [[tax]] charges levied on a custodian relating to assets it holds for its clients. Without an indemnity, the party incurring these costs would just have to wear them. This would be a windfall for the benefiting party.

An {{t|indemnity}} thus creates a payment obligation under the {{t|contract}} where one would not otherwise exist. If the indemnified event occurs, the indemnified party claims on the indemnity and the indemnifying party doesn’t pay, the indemnified party has an action in breach of contract. It can sue.

And that’s about it. an {{isdaprov|indemnity}} gives you a right of suit where, without it, you would not have one.

In any case, '''[[indemnities]] should not, ''ever'', cover losses arising from the counterparty’s [[breach of contract]]'''. Like, ''ever''. Anyone who tells you anything different — and in this old salt’s long and grim experience, many people who should know far better will — is, [[for the time being]], [[without limitation]] and [[notwithstanding anything to the contrary in the foregoing contained]], a ''moron''.  

For two reasons: Firstly, if the other guy has breached the contract, [[Q.E.D.]] ''you have a right of action under the {{t|contract}}''. You don’t need an {{t|indemnity}} to give you a right to sue. This is self-evidently true. Secondly, there are limitations on a party’s liability for [[breach of contract]] — questions of [[causation]], [[remoteness of damage]], [[foreseeability]] and proof of [[loss]] — developed over said centuries in the Darwinian crucible of the [[common law]] — that are there for very good reasons, and about which the parties are certain to disagree vigorously. An indemnity is meant to be a pre-agreed amount, so quite unsuitable for a contractual damages. There are those — as above, they are morons — who believe that overlaying a right to sue for breach with an indemnity will somehow subvert the need for adversarial inquiry into the breach. It won’t.