12/08/16 The Use of “Indemnify” in Legal English
WHETHER TO SAY “HEREBY INDEMNIFIES” OR “SHALL INDEMNIFY”
Black’s Law Dictionary says that indemnify means both “To reimburse (another) for a loss suffered because of a third party’s or one’s own act or default” and “To promise to reimburse (another) for such a loss.” So indemnify can be used in both language of obligation (Acme shall indemnify Widgetco) and language of performance (Acme hereby indemnifies Widgetco). Drafters greatly prefer indemnify as language of obligation rather than language of performance.
Although both usages are adequate to accomplish the intended purpose, there’s some value to uniformity, so I recommend that you hasten the demise of hereby indemnifies by using shall indemnify.