Drafting Indemnification Clauses

A typical indemnification clause requires the indemnitor to “indemnify and hold the indemnitee harmless.” It might also require the indemnitor to “defend” the indemnitee. While most legal authorities agree that the obligation to defend is different from the obligations to indemnify and hold harmless, many regard the promises to indemnify and hold harmless as synonymous, suggesting that either by itself would be sufficient. However, there is a subtle distinction between the duties to indemnify and hold harmless. Transactional attorneys need to be aware of this distinction because indemnity agreements, which aim to shift the burden of responsibility in potentially expensive lawsuits, can be critical in their practical application.