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PROJECT WORK ON
INDEMNITY INSURANCE
SUBMITTED TO:
DR. RAVI RANJAN
FACULTY OF LAW
SUBMITTED BY:
MOHIT MADHAV
ROLL NO: 754
3 RD
SEMESTER (2ND YEAR)
SECTION: A
TABLE OF CONTENTS
Introduction........................................................................
... (5-7)
Insurance
under
Indian
1872................................... (8-9)
contract
act,
CHAPTER-1
Introduction
The fundamental principle of Insurance is mathematical; its application is
financial; and its interpretation is legal. For the layman to understand the
Insurance principle he should be an actuary (who design and price the
insurance products); to understand its application to financial problems, he
need not be a financial; and to understand its legal concepts, he need not be
a lawyer. The subject of Insurance covers a vast array of topics. This and the
following chapters are concerned with these topics. Insurance may be
defined as a contract between two parties whereby one party called insurer
undertakes in exchange for a fixed sum called premium to pay the other
party called insured a fixed amount of money after happening of a certain
event. Insurance policy is a legal contract & its formation is subject to the
fulfilment of the requisites of a contract defined under Indian Contract Act
1872. According to the Act A Contract may be defined as an
agreement between two or more parties to do or to abstain from
doing an act, with an intention to create a legally binding
relationship. Since Insurance is a contract, certain sections of Indian
Contract Act are applicable.
Because the law allows great flexibility in crafting the terms of an indemnity provision, it is
important that the parties to a transaction consider their particular circumstances, issues and
needs, and draft accordingly, rather than unthinkingly copy and paste an indemnification
provision from a prior deal. Indeed, one recent study of middle market transactions (below
$1 billion) over the 2002 to 2008 period suggests significant variance in at least certain terms
from deal to deal in any given year and over the years as well. See generally Houlihan Lokey
Purchase Agreement Study (May 2009). Similarly, the applicable jurisdictions statutory,
administrative and common law must always be consulted when drafting, analyzing or
enforcing indemnification provisions. Moreover, the perspectives of litigators and corporatetransactional lawyers often differ regarding the impact and effect of indemnity provisions in
transactional documents. Accordingly, it may be productive for the parties to seek a litigators
review of indemnity language being negotiated, at least when there are or may be particular
concerns or sensitivities on certain issues. Several types of transactions will be discussed in
this article including corporate acquisitions, real estate (and the related environmental issues),
and confidentiality agreements. Indemnification in the context of litigation (usually relating
to settlements) and related insurance issues will also be included. Many of the examples used
relate to the sale of a business, because indemnification provisions are common in the
agreements pertaining to such sales. However, the issues discussed in that context are
applicable to many types of transactions and agreements especially those that involve
representations, warranties, guaranties, and related issues.
1 New India Assurance Co Ltd State Trading corpn of India, AIR 2007 Guj 517 (NOC).
Chapter-2
Insurance under Indian contract act, 1872
The essentials of any Insurance Contract are discussed as under with reference to the life
Insurance only.
1. Offer & Acceptance:
In Life Insurance an offer can be made either by the Insurance company or the applicant
(proposer) & the acceptance will follow.
e.g., subsequently (a) An offer made by the Insurance company to propose that the premium
amount will be Rs.100/- per annum for the Insurance amount of Rs.1000/-. It is for the
proposer to accept the offer or not.
(b) An advertisement in the newspaper about the availability of different life Insurance
policies is an invitation for an offer. If a proposer makes an application then it will be offer
from the applicant and the Insurance company may or may not accept it.
(c) An offer may be considered accepted either when the Insurance company issues the policy
or the first premium is paid by the applicant.
As stated above in example (a) if the applicant pays the first premium of Rs.100/- to the
Insurance company then the contract is completed as both the parties have accepted the offer.
Similarly, if the company issues the policy in above stated example (b) then the offer is
accepted by the Insurance company & the contract is completed. In fact, in life Insurance
contract the effective date of the policy is very important; when the premium is paid with the
application but no conditional receipt is issued the contract is not in force until the policy is
delivered to the applicant. The payment of the premium with the application constitutes the
offer and the delivery of policy is its acceptance. Further, if the premium is paid with the
application & conditional receipt is issued, the effective date of the contract depends upon the
provisions of the conditional receipt. There are three types of conditions as follows:
(a) The condition may be that the Insurance becomes effective as of the date of the
application or medical examination whichever is later. A claim arising after this date will be
paid even if the application papers have not reached the competent / Approving Authority,
provided of course, that the facts on the application & the results of the medical examination
are such that the company would have accepted the application had the applicant lived.2
2Mange Ladha Ram v. Ganda Mal AIR 1929 Lah 388.
(b) The second type of conditional receipt used by a company is the approval form, which
provides coverage beginning with the date the application is approved by the company. This
form does not offer the insured protection for the period from the date of the application until
it is approved by the company.
(c) A third type of receipt is the unconditional binding receipt. According to this receipt the
company binds the Insurance from the date of the application until the policy is issued or the
application is rejected. The companies using this type of receipt place a time limit usually
from 30 to 60 days. This binding receipt is beneficial to the prospects because he becomes
insured from the time the application is filed. This form of receipt is not widely used. The
offer or proposal and its acceptance may be verbal or in writing but in Insurance contracts
these are in writing. In General Insurance the Insured offers to purchase an insurance from
the Insurer and this offer is in the form of a proposal form and the Insurer after studying the
proposal can either reject the proposal or accept it. In case he accepts he issues a cover note
or a letter of acceptance. In the latter event the acceptance letter becomes a counter offer or
proposal, which is accepted on payment of premium by the insured.3
2. Consideration:
There is no validity of a contract if there is no consideration, which is the act or promise
offered by one party and accepted by the other as the price of his promise. In Insurance
contracts the consideration is the premium that the Insured pays to the Insurer as the price of
the promise that the Insurer has made that he shall indemnify the insured. Hence premium
payment is the consideration on part of the insured and the promise to Indemnify is the
consideration on part of the Insurer.
3. Legal Capacity to Contract or Competency:
For an agreement to be binding on all parties, the parties involved must have the legal
capacity to enter into a contract. With respect to the insurer, if the company is formed as per
laws of the country & empowered to solicit insurance then the insurer is capable of entering
into an agreement. With respect to the insured, the person should be of legal age i.e. 18 years
and of sound mind. If a contract is made with an underage the application may be held
unenforceable if the minor decides to repudiate it at a later date. In Insurance contract the
insurer is bound by the contract as long as the underage wishes to continue it. If the minor
repudiates his contract, the law will allow him a refund of all premium paid. Insanity or
mental incompetence precludes the making of a valid Insurance contract.
4. Consensus ad idem (Same mind):
The understanding between the insurer & insured person should be of same thinking or mind.
The reasons for taking the Insurance policy should be understandable to both the parties.
Both parties to the contract should be of the same mind and there must be consent arising out
of common intention.4 Both parties should be clear about what the other is saying. The
Insurer should know what the insured wants and the insured should know what the insurer is
3 M. Sham Singh v State of Mysore, (1973) 2 SCC 303.
4 Tropical Insurance Co v. Zenith Life Insurance, (1941) 196 IC 261.
offering and both should be agreed on this. For example, if an Insured seeking a fire policy is
issued a burglary policy there is no consent arising out of common intention.
5. Legality of Object:
To be a valid, a contract must be for a legal purpose & not contrary to public policy.
Insurance is legal business therefore it cannot be illegal on the part of the insurer. An
individual can take the life Insurance of his own life or his/her family members. If an
individual takes a policy on the life of an unknown person it will not be a valid contract as it
will amount to gambling.
Chapter-3
Insurance under common law
Definitions
One way to provide significant clarity to indemnity provisions is the creation of proper
definitions. Most complex documents now include extensive definition sections. Yet,
surprisingly, indemnification provisions may employ important terms that are undefined or
insufficiently defined. For example, in an operation and maintenance agreement the following
definitions might be created for use solely in the indemnification agreement between the
Contractor and Owner:
Claims shall mean all claims, requests, accusations, allegations, assertions, complaints,
petitions, demands, suits, actions, proceedings, and causes of action of every kind and
description. Contractors Conduct shall mean any act, failure to act, omission,
professional error, fault, mistake, negligence, gross negligence or gross misconduct of any
and every kind, of Contractor, its employees, agents, representatives, or subcontractors, or
employees, agents, or representatives of such subcontractors, arising out of:
(i) Any workers compensation claims or claims under similar such laws or obligations
related to this Agreement;
(ii) Performance of this Agreement (or failure to perform);
(iii) Breach of this Agreement; or
(iv) Violation of any laws.
Contractor Defended Claim(s) shall mean all Claims which allege that Damage was
caused by, arises out of, or was contributed to, in whole or in part, Contractors Conduct.
Damages shall mean each and every injury, wound, wrong, hurt, harm, fee, damage, cost,
expense, outlay, expenditure, or loss of any and every nature, including, but not limited to:
(i) Injury or damage to any property or right;
(ii) Injury, damage or death to any person or entity;
(iii) Attorneys fees, witness fees, expert witness fees and expenses;
and
(iv) All other costs and expenses litigation.
Proven shall mean that a court of competent jurisdiction has entered a final unappealable
judgment on a Claim adjudging an entity or person liable for a monetary judgment.5
5 Supra, Note 2.
If customized definitions are used in the context of an indemnification agreement, then the
actual terms of the indemnification may be relatively simple rather than the long run-on
sentences found in a number of indemnification agreements:
Subject to the terms and conditions of this Article X, Contractor shall provide a defense for
the Owner from all Contractor Defended Claims.
Likewise, the actual terms that impose an obligation to indemnify may be equally simple:
Subject to the terms and conditions of this Article X, Contractor shall indemnify Owner from
any judgment arising from any Contractor Defended Claims, which are Proven against
Owner.
Identification Of Indemnitees
When negotiating the parties to be indemnified, the indemnitors goal is to limit the universe
of the indemnities. On the other hand, the indemnitee may want to expand the class as much
as possible. To the extent that an indemnitor indemnifies any affiliate of the indemnitee, the
affiliate may satisfy the criteria for being a third-party beneficiary of the indemnity. In that
regard, however, when identifying the indemnitees under an indemnification agreement, how
specific must the identifiers be? As an example, assume that the seller of a business
indemnifies the following entities: buyer, subsidiary corporations, parent corporation,
shareholders, directors, officers, managers, members, partners (other corporate participants),
agents, representatives, attorneys, permitted assigns, affiliates, employees, and lenders. This
appears to provide broad coverage but how far can you go? Merely identifying the parties to
the indemnification agreement can be quite tricky. How detailed must you be in identifying a
party in order for that party to be indemnified? Is partner enough? Is agent or employee
enough? The term officers, directors, employees and joint owners has been held by at least
one court to be sufficiently precise, but not to include a consultant to the party to the
indemnification agreement.6
Third-Party Beneficiaries
A signatory to an indemnification provision (such as the buyer of a business) can be
indemnified and has the standing to enforce that right to be indemnified. But are nonsignatories entitled to make claims under the indemnity? When other parties are not signing
the contract, how do these other beneficiaries of the obligation of defense and
indemnification get protection and enforce those indemnification provisions? To be a thirdparty beneficiary of a contract, the contract must express an intention to benefit that party or
an identifiable class to which the party belongs; absent express declaration of such intent, it is
generally presumed that the third party is not a beneficiary and the parties contracted only to
benefit themselves. If there is a no third-party beneficiary clause in the agreement, as may
be the case, then generally no entity, other than the signatory parties, would have the standing
to enforce the indemnity agreement. Only the signatory parties (such as the buyer or seller of
the business sold) will have the right to force the indemnitor to perform its contractual
obligation to indemnify any non-signatory indemnity beneficiaries. If that signatory
indemnitee party has been merged into the indemnitor, or if the indemnitee and the thirdparty beneficiaries are no longer on good terms (e.g. terminated employees), the third parties
6 See, e.g., Melvin Green, Inc. v. Questor Drilling Corp., 946 S.W.2d 907, 911 (Tex. App. 1997).
may have a right to indemnity but no practical means of enforcement. 7 A solution (from the
third-party beneficiarys perspective) is to explicitly make these parties third party
beneficiaries (at least as to the indemnification provisions). However, in doing so, the
signatory parties may want to protect their ability to amend all other provisions of the
agreement (outside the indemnification provisions) without the consent of the third-party
beneficiaries.8
10
circumstances shall not be a material breach of this Agreement. However, if the Indemnitee
shall be required by a final judgment to pay any amount in respect of any obligation or
liability against which the Indemnitor is required to indemnify under this Agreement, the
Indemnitor shall promptly reimburse the Indemnitee in an amount equal to the amount of
such payment. Further, if such refusal, or any failure, to provide a defense against a Claim is
found not to have been reasonably justified, under the commercially reasonable standards
observed in the _____ industry, then the Indemnitor that has refused to so provide a defense:
(i) shall be obligated to pay all of the Damages and out-of-pocket expenses incurred by the
Indemnitee in defending said Claim, including, but not limited to, the value of the time,
including travel time, that all of the employees, agents and representatives of the Indemnitee
dedicated to, or expended in furtherance of, the defense of said Claim; (ii) without any
further action from any Party, hereby intentionally relinquishes and waives any and all rights
of every nature to dispute, defend against or contest, in any manner, (including but not
limited to the waiver of every defense of every nature) the claim of the Indemnitee regarding
the amount of, reasonableness of, necessity for or the Indemnitors obligation to pay, the
costs, fees and expenses, and other Damages incurred by the Indemnitee in defending the
Claim.10
11
Chapter-4
Judicial jurisprudence regarding insurance
indemnity
Sadharan Bima Corporation vs. Bengal Liner Ltd. and another13
Marine Insurance in BangladeshIn determining issues of marine insurance in general and the
issue of unrepaired damage in particular there is no law on marine insurance in the statutebook in Bangladesh. Yet, in respect of marine insurance in general the Courts of Bangladesh
follow the general principles of contract and the English Law and Practice, which are held in
high esteem even by the American Courts.Eagle Star Insurance Co. Ltd. Vs. Rahmania
Trading Co. Chittagong, 28DLR (AD) 109; Cheshire's Private International Law, 7th Edn. PP.
213-214; Compania Maritima Astra, S.A. Vs. Archdalf, Known as The "Armar" case, 1954(2)
Lloyd's Rep. 95(101) - Cited.Unrepaired damage of a vesselThe question of unrepaired
damage, when the ship has not been sold in her damaged state during the risk, as in the
present case, arises only after the policy terminates. It is a matter of calculation and it can
never be the subject-matter of a pre-determined amount in the policy.Analysis of Marine and
other Insurance Clauses by Victor Dover 8th Edn. H. F &G. Witherby Ltd., London, PP. 112113 on Institute Dual Valuation Clause--Cited.Deal Valuation clause in a Marine PolicyThe
value of marine policy is determined by the clauses of the Dual Valuation Clause, one
valuation (the lower) determining the Total Loss and the other (higher) determining other
than Total Loss.Insurer not to pay compensation for damages but is responsible for
indemnityA contract of marine insurance is a contract of indemnity, i.e.; the amount
recoverable is measured by the extent of the assured's pecuniary loss. It is never a contract of
guarantee or a contract of "compensation for damages".Market Value and Insured Value of a
VesselThe market value and the insured value of a vessel are not usually the same. These may
be so only in rare cases, as when a newly built ship is insured for the first time and meets
12 New India Assurance Co Ltd v. State Trading Corpn of India, AIR 2007 Guj 517 (NOC).
13 1996, 25 CLC (AD)
12
with an accident during the currency of the policy. As the ship ages, her market value
declines. The insured value will not represent her sound market value, because there are other
considerations which weigh with both the insured and the insurer in putting an insured value
on a vessel. The Admiralty Court was wrong in holding that the market value of a vessel will
be presumed to be its insured value. On the contrary, the legal position is that the market
value of a vessel will not be presumed to be her insured value, except in special cases. The
burden of proving the sound market value of the vessel at the termination of a policy lies on
the plaintiff who claims on the policy. This burden is not discharged by just proving the
insured value.Reasonable cost of repairs of a vesselThe reasonable cost of repairs is the
second higher watermark in measuring the indemnity in respect of unrepaired damage. This is
a necessary and inevitable exercise, unless the contending parties have already arrived at a
negotiated figure. The plaintiff is entitled to inflate his claim if a lower amount claimed
earlier before filing the suit was rejected by the insurer. But in such a case the burden is on
the plaintiff to prove each and every item of the inflated claim. A convenient mode of such
proof may be by procuring a report from an approved ship repairer whose hypothetical
estimates, in case the vessel has not been repaired, shall have to be proved in Court, if
challenged. In this case, the reasonable cost of repairs was assessed and awarded to the
plaintiff.
Oriental Insurance Co. and Ors. vs. Vinod Kumar and Ors.14
Cheque towards premium of policy covering third party liability bounced - Notice
terminating contract of insurance served on the insured - No policy and certificate of
insurance issued - In an accident claim petition insurance company made liable to pay the
amount awarded inspire of non payment of premium and cancellation of cover note Whether Section 149(1) of the Act can be held as applicable - Held, under Section 149(1)
once certificate of insurance or policy issued, the liability of the insurance company towards
third parties continues during the prescribed period notwithstanding cancellation of the policy
or the right of the insurance company thereof - The provision has over riding effect and the
insurance company bound to indemnify third parties even if certificate of insurance and
insurance policy liable to be cancelled or has been cancelled - Once cover note is issued,
certificate of insurance also deemed to be issued - If an accident takes place within 60 days of
the issue of the cover note, insurance company to be bound by Section 149(1),
notwithstanding the fact whether cover note has been cancelled or may be cancelled or
avoided - Appeals allowedMotor vehicles - Insurance - Cover Note - Nature of - Rule 142 of
the Central Motor Vehicles Rules - Held, Cover note is issued for a limited period and expires
after a period of 60 days - During its validity in view of Section 145(b) and 145(d), a cover
note itself is equal to certificate of insurance and insurance policy - Cover Note however
comes to end by efflux of time and ceases to be certificate of insurance or policy - Where
certificate or policy not issued within 60 days, section 149(1) of the Act will not apply after
expiry of the said period - Thereafter the insurance company will not be liable to make
14 AIR 1998 SC 588
13
14
Question arose before Court that whether, in case of a willful or intentional breach of terms of
policy by Insured in terms of Section 149 (2) (a) (ii) of Act would Insurer still be liable to
satisfy award of compensation in favour of third parties and avail right to recover same from
Insured - Hence, this Appeal - Held, breach of policy condition as envisaged under Section
149 (2) (a) (ii) of Act had to be proved by Insurer - Moreover if Insurer was able to establish
wilful breach of terms of policy, Insurer could successfully avoid its liability towards insured
but it would have to satisfy award vis--vis third parties - Claims Tribunal would be competent
to decide not only claims of Claimants but inter-se dispute between Insurer and insured and
pass an award - It was obvious that when breach by insured was not wilful, Insurer had an
obligation to indemnify insured - Therefore Insurance Company had liability to satisfy award
vis--vis third party and to recover compensation in case breach of Insurance policy was wilful
or intentional - Appeal disposed of. MAC APP.329/2010Motor Vehicles - Liability - Tribunal
awarded compensation to claimant for motor accident - Whether, owner was guilty of wilful
breach of terms of policy and Insurance Company was liable to be exonerated - Of course,
driver and owner of offending vehicle preferred not to contest proceedings before Claims
Tribunal, but at same time, no effort was made to summon them to prove that there was a
breach or in any case a wilful breach of terms of policy - Thus there was no manner of doubt
that Insurance Company had failed to establish that there was wilful breach of terms of policy
by Insured - Therefore Insurance Company could not avoid liability to pay compensation as
awarded - Appeal dismissed. MAC APP. 13/2008Motor Vehicles - Liability - Tribunal held
that Insurance Company had failed to prove that owner was aware that driver was not holding
a valid driving licence at time of accident, yet, First Respondent was granted right to recover
compensation from Appellants herein owner and driver - Held, it was established on record
that driving licence held by driver and seized by IO, immediately after accident and which
was valid - Further Insurance Company had not proved on record that owner was not aware
that driver did not hold a valid driving licence at time of accident - Therefore Claims
Tribunal's order granting recovery rights to First Respondent Insurance Company against
owner could not be sustained to that extent - Appeal partly allowed.MAC
APP.404/2007Motor Vehicles - Liability - Whether, Insurance Company was liable for
compensation - Held, driver and owner had failed to produce any licence - It was found that
third Respondent had failed to prove circumstances under which vehicle was given to driver
by second Respondent and in absence of any evidence adduced by third Respondent it should
be assumed that there was wilful breach of policy condition - Further it was found that
vehicle was driven by a person other than permit holder, there was violation of policy - Thus
Insurance Company was under obligation to pay and recover amount of compensation Insurance Company was not entitled to be completely absolved - Insurance company had
failed to place on record any evidence to effect that owner of offending vehicle i.e. insured, at
any point of time had knowledge that Respondent no.1 was not a duly licensed person to
drive vehicle - Hence Insurance Company could not be exonerated of its contractual liability
to indemnity insured - Thus Tribunal erred in declining to grant recovery rights to Appellant
Insurance Company as Appellant would be entitled to recover amount of compensation Appeal partly allowed.MAC APP.189/2009 and CM APPL.4990/2009 (delay)Motor Vehicles
17 AIR 1997 Cal 179.
15
- Liability - Section 10 and Section 149 of Motor Vehicle Act, 1988 - Claims Tribunal held
that driver did not possess a driving licence to drive a road roller and, therefore, although
Insurance Company was liable to satisfy award in favour of a third party, it was entitled to
recover compensation awarded from owner of offending vehicle - Hence, this Appeal Whether, holder of a licence was competent to drive a road roller - Held, a perusal of written
statement filed by Appellant revealed that Appellant did not take plea that road roller weighed
less than 7500 kg - However road roller was less than 7500 kg and would come within
definition of "LMV" but a separate endorsement was required to drive a road roller - A
combined reading of Section 10 of Act along with Form 6 revealed that road roller was a
separate category; a separate endorsement was required to drive same. Thus Appellant was
rightly held to have committed wilful breach of condition of policy - Hence Insurance
Company was entitled to avoid indemnification of insured but for its statutory liability and so
Claims Tribunal rightly granted recovery rights in favour of First Respondent - Appeal
dismissed. Ratio Decidendi"Insurance Company shall not be liable for compensation if there
is breach of insurance policy by owner of vehicle."
Chapter-5
Conclusion
Mechanics Of Indemnity
Indemnity provisions may require some type of notice to be given by the indemnitee to the
indemnitor. If the notice clause is drafted as a covenant, then the indemnitor will argue that
failure to deliver notice is a breach of the indemnity agreement. The indemnitor would
contend that it is entitled to damages based on the lack of notice and that, if delivery of notice
is a condition precedent to the indemnitors obligation to indemnify, the failure to satisfy the
condition precedent relieves the indemnitor of its obligation to defend or indemnify. The
delivery of notice may be a particularly significant issue when indemnification is being
sought because of a claim by a third party. Indemnity provisions may be drafted to state that
defective notice does not excuse the indemnification obligation unless or except to the extent
that as a result, the damages to be indemnified are increased or the indemnitor is otherwise
prejudiced, e.g., the indemnitors ability to provide a defence is somehow prejudiced. The
following is an example of such a provision.
Notice. Each Indemnitee must provide written notice to the Indemnitor within 10 days after
obtaining knowledge of any claim that it may have pursuant to Section X (whether for its own
Losses or in connection with a Third Party Claim); provided that the failure to provide such
notice will not limit the rights of an Indemnitee to indemnification hereunder except to the
extent that such failure materially increases the dollar amount of any such claim for
indemnification or materially prejudices the ability of the Indemnifying Party to defend such
claim. Such notice will set forth in reasonable detail the claim and the basis for
indemnification.
Joint Claims
In some situations, both the indemnitor and the indemnitee will be targets of a claim by a
third party and neither party will be responsible for all the damage sought. The contract may
require one party to provide a defence for both of the target parties, but that does not
16
necessarily mean that the indemnitor must ultimately bear the full cost of that defence. One
method of distributing the cost of defence to the various parties is to provide that defence
counsel will allocate its fees and expenses between the defendant parties, if in fact such an
allocation is possible. An example of that language (assuming allocation is possible) is set out
below:
Division of Fees. Counsel retained hereunder for the defence of a party hereunder shall be
instructed by the party retaining them to regularly estimate in good faith the portions of all
costs, fees, and expenses of such defence which relate directly to Contractor Defended
Claims and Owner Defended Claims. All fees of such defence counsel shall be allocated
between Contractor Defended Claims and Owner Defended Claims. The division of fees
(which shall not disclose any information other that the amounts of fees, and costs) shall be
provided to Contractor, Owner and all defended parties, and such accounting shall be
irrevocably binding on the Owner, Contractor and the defended party. Owner shall promptly
pay Contractor for the costs, fees, and expenses paid by Contractor to such defence counsel
relating directly to the defence of Owner Defended Claims. Contractor shall reimburse
Owner for the costs, fees, and expenses paid by Owner to such defence counsel that are
directly related to the defence of Contractor Defended Claims. The Owner and Contractor
agree to complete such reimbursements within 30 days after receipt of any such accounting
by defence counsel described herein.
Transfer Of Relationship
When an ongoing customer (or other) relationship is being transferred from the indemnitor to
the indemnitee, e.g., the transfer of customer relationships in connection with the sale of a
business, the indemnitee may want to defend all claims that arise with the newly acquired
customers, even if the seller-indemnitor is obligated to defend the claim and may ultimately
be responsible for the loss. Depending on the circumstances, the buyer-indemnitee may not
want the claims defended vigorously, and instead may want the claims simply paid off, so as
to protect its relationship with the customers, whereas the seller-indemnitor may want to
defend the claim vigorously, and never pay any portion of the claims, with little regard to the
impact that such a posture may have on the buyer-indemnities relationship with the
customers. Possible compromises include:
The buyer-indemnitee is allowed to control the defence but must also assume responsibility
for all or a specified portion of the litigation expenses and any adverse judgment; or
The seller-indemnitor retains control of the defence, but cannot settle without the buyer
indemnities consent.
See John Seegal, Allocation of Post-Closing Risk in Private Company Acquisitions, in
Acquiring or Selling the Privately Held Company (Practicing Law Institute 2006).
Selection Of Counsel
An indemnitor may expressly be given the right to select counsel to provide the required
defense. The indemnitee may also be given a right of reasonable refusal. An example of
such a formulation is as follows:
Selection of Counsel. Any party obligated to provide a defense hereunder shall do so with
qualified counsel that is selected by the party providing the defense, where such counsel is
approved by the other party; but such approval shall not be unreasonably withheld. Such a
provision may lead to future complications if the indemnitor and indemnitee end up as
adversaries in litigation related to the defense of the underlying third-party claim (e.g., from
17
contribution disputes). For example, the counsel selected by the indemnitor may become
privy to confidential information about the indemnitee that might be helpful to the indemnitor
in a direct action between the two, and that counsel may also be the regular counsel for the
indemnitor and therefore also involved in making demands on the indemnitors behalf for
contribution or indemnification from the indemnitee. Although applicable rules of ethics may
prevent counsel from becoming involved in such a scenario, the parties may wish to avoid the
situation entirely by agreeing in advance upon a law firm that will provide the defense, so
long as no conflict of interest would preclude the representation. The shall not be
unreasonably withheld standard may also present complications. For example, if an
indemnitee refuses counsel proposed by the indemnitor, and the underlying case is lost, the
indemnitor may claim that the indemnitees refusal to approve the proposed counsel caused
the loss and therefore excuses the indemnitors obligation to indemnify. The indemnitee
would argue that its approval was not unreasonably withheld. On the other hand, the sellerindemnitee may believe that the benefits of the consent requirement outweigh the costs. If the
seller does wish to compromise the issue, it might do so with the following type of provision,
that at least preserves certain protections for it.
Selection of Counsel. Any party obligated to provide a defense hereunder shall do so with
qualified counsel with demonstrable experience defending claims of the type to be defended,
who is selected by the party providing the defense, and such counsel shall be deemed to have
been approved by the party to be defended, without further action by said party, unless the
party to be defended establishes: (i) a substantive conflict of interest with such counsel; or
(ii) a substantial cause or reason to withhold such approval.
SURVIVABILITY OF INDEMNIFICATION
Transaction agreements may provide that representations and warranties, and the rights to
indemnification for breaches thereof, remain in effect (or survive) only for some specified
period of time. In theory, the time specified should be intended to give sufficient time, postclosing, to determine the veracity of the representations and warranties. This is, however, a
general guideline and moreover, different types of representations or indemnity rights may be
treated differently as far as survival periods. For example, the following types of
representations or warranties may be given indefinite survival:
Taxes. While taxes may be defined as excluded from an asset sale transaction, unpaid
personal property taxes may follow the assets, and the buyer of the assets may be subjected to
liability for such taxes. Accordingly, indemnification from any liability for the sellers preclosing taxes may be demanded by the buyer in asset purchase transactions. Some parties use
statutes of limitation as the limit of survivability for representations regarding taxes.
However, considering that those limitation periods may be tolled or extended, many parties
request that representations and warranties relating to taxes, and the right to seek
indemnification for their breach, be indefinite;
Environmental. The fear of the unknown, and the potential for very significant costs of
environmental remediation, may motivate parties to seek indefinite duration for
environmental representations and warranties and the related right of indemnity for breach
thereof;
Title. When acquiring realty or personal property (including stock or other assets), a buyer
may demand indefinite duration for the representations and warranties relating to the sellers
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ownership of and title to the items and related right of indemnity for breach thereof. The
buyer may take a similar approach to representations regarding liens and rights of others to
the property in question;
Corporate Authority. When an entity makes a representation that it has the authority to
enter into a transaction, such that the agreements are binding and enforceable upon that party,
the other party may seek to make those representations and warranties, and the related rights
of indemnity, unlimited in duration.
Indemnity provisions are inherently flexible and should be built to suit the transaction. When
they are, they can do much to mitigate the risks undertaken and provide a considerable degree
of security.
Bibliography
Books:
contracts and specific relief, avatar singh, 10 th edition,
eastern book company, lucknow, 2008.
contract-ii, r.k.bangia, 6th edition, Allahabad law agency,
Allahabad, 2009.
Indian contracts act, D.f.mulla, 11 th edition, LexisNexis
Butterworth wadhwa, Nagpur, 2009.
contract law, akhileshwar pathak, oxford university
press, Hyderabad, 2011.
law of contract, s.s.ujjanavar, eastern law house,
Nagpur, 2011.
law of contracts, hugh Collins, 4 th edition, Cambridge
university press, 2003.
Websites:
www.preservearticle.com
www.britanica.com
www.i-law.com
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