Most commercial contracts contain indemnity clauses. Yet, despite their prevalence, relatively few contracting parties have a clear and structured understanding of what indemnities are, how they operate, or how to assess their significance within the context of a particular transaction. 

This disconnect is commercially significant. Where a party to a contract has a clear understanding of what indemnities are and what they are intended to achieve, that party is better positioned to identify and assess risk, and will be more attuned to the provisions that require scrutiny. 

As a basis, it is important to know that an indemnity is a contractual risk-allocation mechanism in terms of which one party (the indemnifier) undertakes to hold another (the indemnified party) harmless against specified loss, liability, damage, or expense arising from defined events. It is not merely a damages claim; it is a primary obligation to compensate, typically triggered upon the occurrence of the stipulated risk rather than upon proof of breach in the ordinary sense. 

At their core, indemnities operate as contractual undertakings in terms of which one party agrees to compensate another for defined loss, liability, or expense. 

Indemnity vs Damages: The Fundamental Distinction 

The practical importance of indemnity clauses lies in their ability to alter the default legal position. In the absence of an indemnity clause, a party seeking recovery would generally need to establish breach of contract and satisfy the ordinary requirements for damages. 

At a conceptual level, an indemnity differs from a standard claim for damages. A damages claim is compensatory and subject to common law limitations such as remoteness, foreseeability, causation, and the duty to mitigate. By contrast, a properly drafted indemnity clause operates as a self-standing obligation. It may exclude or modify these limitations, depending on its wording, and can extend to losses that would not ordinarily be recoverable via a damages claim. 

In commercial transactions, this distinction is critical. An indemnity is designed to shift defined risks from one party to another with a high degree of certainty. 

Commercial Purpose and Risk Allocation  

Indemnity clauses are used to ring-fence specific categories of risk. These commonly include third-party claims, regulatory breaches, tax liabilities, intellectual property infringement, and losses arising from defined operational activities.

For example, a seller may indemnify a purchaser against pre-closing tax liabilities of a target company, or a service provider may indemnify a client against claims arising from the provider's negligence or misconduct. The indemnity clause ensures that liability follows the party best positioned to control or insure against the relevant risk. 

Scope and Interpretation of Indemnity Clauses 

The scope of an indemnity is entirely dependent on its drafting. A narrow indemnity clause may cover only direct loss suffered by the indemnified party, while a broader indemnity may extend to indirect or consequential losses, legal costs, penalties, and third-party claims. 

In practice, the phrase "hold harmless" is often used alongside "indemnify" to reinforce that the indemnified party should not be left out of pocket in respect of the defined risk. 

Courts will, however, interpret indemnity clauses restrictively where ambiguity exists, particularly where the clause seeks to indemnify a party against its own negligence or misconduct. Precision in drafting and/or amending is therefore essential. 

First-Party vs Third-Party Indemnities  

A critical distinction arises between first-party and third-party indemnities. 

A first-party indemnity compensates the indemnified party for its own losses, such as a tax indemnity covering historical liabilities. A third-party indemnity protects against claims brought by external parties, such as customers, regulators, or creditors. 

Third-party indemnities are procedurally more complex and typically require provisions dealing with notice, control of defence, settlement rights, and cooperation between the parties.

Displacement of Common Law Limitations 

Indemnities may, if clearly drafted, displace or modify common law principles. For example, an indemnity clause may provide that the indemnifier is liable "on demand" or "as and when incurred," thereby avoiding disputes as to when loss has crystallised.

Similarly, an indemnity may exclude the duty to mitigate or extend liability beyond foreseeable loss. However, such departures from common law must be clearly expressed. Ambiguity will be construed against the party seeking to rely on the indemnity.

Interaction with Limitation of Liability Clauses

Indemnity clauses must be read together with limitation of liability provisions. While limitation clauses seek to cap or exclude liability, indemnities may either fall within that cap or operate outside it.

This interaction is commercially significant. An indemnifier will typically seek to ensure that indemnity exposure is capped, time-limited, and subject to procedural steps. Conversely, the indemnified party will attempt to preserve indemnities as uncapped or separately recoverable obligations. 

Enforceability and Public Policy 

Indemnities are generally enforceable, subject to public policy considerations. An indemnity clause that purports to indemnify a party against gross negligence, fraud, or unlawful conduct may be unenforceable or subject to strict judicial scrutiny. 

Courts will assess such provisions against principles of fairness, particularly where there is unequal bargaining power between the parties.

Conclusion 

Indemnity clauses are among the most commercially significant provisions in any contract, and appear in almost every commercial agreement. They operate as targeted risk-allocation tools, capable of overriding default legal principles and creating primary payment obligations for indemnifiers.

They should not be treated as boilerplate. Careful consideration should be exercised to determine whether the indemnities create uncertainty or undermine enforceability, or whether the indemnities provide clarity, reduce dispute risk, and ensure that liability is allocated in a commercially rational manner. 

A solid conceptual understanding of what indemnities are, and what they are designed to achieve, materially improves one's ability to assess risk when reviewing any indemnity clause in South African commercial contracts. 

Written by Nicolene Schoeman-Louw; Specialist Technology, Commercial and Contract Law; SchoemanLaw Inc