16/06/16 The Phrase ‘Indemnify and Hold Harmless’ in Legal English
It’s commonplace for drafters to use the phrase indemnify and hold harmless (or save harmless). As explained below, it’s much clearer and safer to use just indemnify.
Black’s Law Dictionary treats indemnify and hold harmless as synonyms, in that it defines hold harmless as follows: “To absolve (another party) from any responsibility for damage or other liability arising from the transaction; INDEMNIFY.”
Garner’s Dictionary of Legal Usage collects other dictionary definitions to the same effect, concluding that “The evidence is overwhelming that indemnify and hold harmless are perfectly synonymous.”
Some courts have come to the same conclusion
Nevertheless, some commentators have seen fit to endorse a distinction between indemnify and hold harmless. For example, Mellinkoff’s Dictionary of American Legal Usage, says that “hold harmless is understood to protect another against the risk of loss as well as actual loss.” It goes on to say that indemnify is sometimes used as a synonym of hold harmless, but that indemnify can also mean “reimburse for any damage,” a narrower meaning than that of hold harmless.
Some courts have done likewise fabricating a distinction—that indemnify is an “offensive” right allowing an indemnitee to seek indemnification whereas hold harmless is a “defensive” right allowing an indemnitee not to be bothered by the other party itself seeking indemnification.
So the redundancy in the phrase indemnify and hold harmless is pernicious, in that disgruntled contract parties might seek to have unintended meaning attributed to hold harmless. And any given court might decide to distinguish indemnify from hold harmless, prompted by the judicial rule of construction that every word in a provision is to be given effect.
To stay out of trouble, never use hold harmless. Using just indemnify is no obstacle to saying whatever you want to say.