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Indemnity(noun); Indemnify(verb) – Meaning

Facts: A and B are two  drivers involved in a motor accident which A causes because of his negligence. B sues A.

Question: Will the court order A to indemnity B for B’s losses?

Answer: No, because this is not a case of indemnity. It will instead order A to pay B damages, compensating B for his loss.

Indemnity is when one party agrees in advance to make good a loss to another party because of a third party claim. Therefore, in our example, as it is A’s act or failure (to drive carefully) that causes B’s loss, A cannot be said to be indemnifying B. There is no third party in the background nor any agreement in existence before the motor accident.

However, if we change the facts so that C insurance company insures B under a policy of car insurance, the insurer indemnifies B for losses caused by A’s failure to drive carefully. This fits within the indemnity definition.

Another example of an indemnity is contained in the following clause from a distribution agreement made between a manufacturer (called the Company) and distributor.

The Distributor will indemnify the Company against all actions, costs, claims and demands arising from the sale or distribution of the Products by the Distributor excluding matters of a product liability nature.

Functional Language: (1) opinion

In my view/opinion

In my respectful view/opinion

I believe that

My opinion/view/feeling/impression is that

I am of the opinion/view/feeling/impression that

I think it would be a good idea if we

The way I view this matter is that

I might/could be wrong but I honestly believe that

Functional Language: (2) disagreement and apology

The language of disagreement and apology

They couldn’t accept that

No

That’s impossible

We could never go along with that

This is unacceptable/ out of the question

We simply can’t/ couldn’t agree

No, regrettably not

We regret we can’t attend the meeting

We are sorry that/but

We could never go along with that

Unfortunately…

Regretfully…

We must apologise for being late

Sorry

I’m so/very sorry to hear about….

We must apologise in advance for not being able to attend the meeting

Functional Language: (3) cause and effect

Therefore

As a result

Consequently

In consequence

It follows that

The result of this is that

accordingly

and so

for this reason

hence

since

so

thus

to that end

One reason for this

This is because

This is due to

This is due to the fact that

This resulted from …

This can be explained by

Sample sentences to include in a letter to a client, colleague or opponent

To a client

Thank you for your kind instructions.

We are delighted to act/ be acting for you.

We are very pleased to have discussed this matter with you and have the following observations.

I am attaching the draft contract and would particularly ask you to read Clauses 6 and 9. These are rather detailed I am afraid and if their meaning is unclear, please let me know and I will go through them with you.

I am attaching the draft contract and would particularly ask you to read Clauses 6 and 9. I would like you to confirm whether you accept the obligations they contain and whether you wish to suggest changing these. I would obviously then deal with the appropriate wording to reflect these changes.

I regret to inform you that the Seller has decided not to sell to you.

It is with regret that I must inform you of …

Unfortunately, they do not accept our amendments.

Sadly, the Seller has decided to sell to Y/ increase the purchase price of the property.

I note that there are several encumbrances adversely affecting the property and I would advise you not to proceed.

It seems that contrary to your instructions, the property is ….

I would be grateful / pleased if you could contact me on receipt of this letter to confirm that you wish me to proceed.

Please let me know whether you would like to discuss any points in more detail.

If you would like to have further assistance with this, please let me know.

If you would like me to elaborate on any matter further, please contact me.

If you would like any further elaboration or assistance, please contact me.

Please confirm your acceptance of these terms by signing a copy of this letter and kindly returning it to me in the enclosed self-addressed stamped envelope.

If you would like to meet to discuss this further, please phone my secretary Anne to make an appointment/ a mutually convenient appointment.

 

To a colleague

Thank you for memo, the contents of which I have noted carefully. My advice is as follows/ I would suggest the following steps:

Mrs Jones has asked me to help him in relation to/ on the sale of …

I have been asked (by) to deal with the following matter. Our client is buying real estate in London and Paris….I need your input on the on the relevant English relating to joint tenancies.

I would be most grateful if you would kindly let me have your considered advice as a matter of some urgency and if there are any matters which you need to discuss, please contact me.

To the lawyer acting for your opponent

We acknowledge safe receipt of the documentation attached to your email.

Thank you for your email with attachment

Our client instructs us that your client’s version of events is entirely wrong/ false/ inaccurate/ erroneous…/ he does not wish to proceed with the purchase.

Our client instructs us that in view of your client’s intolerable delays in dealing with this matter, if your client does not sign the contract by close of business today, his offer to sell the property is to be considered as withdrawn with immediate effect.

We act for XYZ AG in connection with its proposed sale of this property to ABC AG for whom we understand you act. Kindly/  Please confirm that your client has instructed you to deal with the matter and we will then prepare the draft contract and submit it to you together with the supporting papers.

Your client has persistently delayed payment and is in breach of contract terms. Therefore, unless you send the outstanding amount to arrive at our office by close of business on the 4 June next, our client has instructed us to institute/ start/commence legal proceedings.  We will claim the outstanding amount together with all costs, fees and contractual interest without any further notice.

Conditions, Warranties and Representations

1. There are two meanings of each of the words condition and warranty, a traditional meaning and a more technical meaning.
2.  The traditional meaning of condition is term of a contract ( note that the use of the phrase Terms and Conditions is a redundancy, terms = conditions, so use either terms or conditions).
3. The traditional meaning of the word warranty is a promise in a contract of a future action. The Distributor will not sell/ warrants not to sell the goods outside of Territory A.
4. In a more technical sense, condition means a vital or essential term of the contract (Oscar Chess Limited v W.V.R.Williams [1956] EWCA Civ 5). I buy a new car but its engine is defective. The court would hold that to be a seller’s breach of condition since the sale of a new car has an essential term expressed or implied into it that the engine is in perfect condition.
5. When used in a technical sense, warranty means a subsidiary term in a contract. An example of this is the sale of a car which has a perfect engine but not the same type of sound system as I ordered.
6. It follows that you can say in the contract that The conditions (or instead terms) of the contract contain conditions and warranties that are burdensome to the Seller.
7. The contract containing the condition or warranty can be either oral or in writing.
8. Whether there is a breach of condition or warranty depends upon either the label that the parties to the contract have given to the term in question or, in the absence of this labelling, on the way the courts have traditionally treated terms of that kind. If the parties have not given a label or if the courts have not yet treated the term in question as a condition or warranty, the court will treat the breach as neither a breach of condition nor of warranty but instead as breach of an innominate term.
9. For breach of condition, the innocent party has the right to treat the contract as at an end or he might apply to the court for damages instead. For breach of warranty the remedy is damages.
10. The remedy for breach of an innominate term depends on whether the breach is of a fundamental nature, meaning that the innocent party has been deprived of substantially the whole of the benefit of the contract. If this has happened, he is entitled to treat the contract as at an end and claim damages. If not, he can claim damages only.
11. It will be for the court to decide whether the breach of the innominate term is  to be treated as being of a fundamental nature.
12. It is often preferable for the parties to a contract to expressly declare which of the terms amount to conditions and which as warranties.
13. The easiest way of understanding the word representation is that it is a statement of fact. “The car has been driven 20,000 miles”.
14. One person (misrepresentor) makes a misrepresentation to another (misrepresentee) when he makes a false material statement of fact: “The car has been driven 20,000 miles”, although it has been driven 120,000 miles. The misrepresentor must intend that the statement will lead the misrepresentee to enter into the contract. The misrepresentee must believe in the truth of the statement. The misrepresentee relies on it- he might rely on other things as well to enter into the contract but that does not matter- and enters into the contract.
15. When the misrepresentor made the statement, he does not believe in its truth or is very careless as to whether or not it is true  (fraudulent misrepresentation),  he might have had no reasonable grounds for making the statement ( negligent misrepresentation), or he might have made the statement innocently (innocent misrepresentation).
16. A misrepresentation is not:

(i)                  an opinion- the car seems to be in good working order

(ii)                a statement of intent- I intend to buy the business from you next year

(iii)               a statement of law- English contract law does not need consideration ( note: it does) or

(iv)               a ‘mere puff’- an exaggerated claim about the goods without any intention to be binding- ‘It’s ( referring to a car) a good little runner’.

14. The misrepresentation might have become a part of the (written or oral) contract. Whether it does so depends upon the parties’ intentions, gathered from their conduct, words and behaviour but not from what is in their minds ( Lord Denning, LJ in Oscar Chess, supra). If the court says the misrepresentation forms part of the contract, it will then be a contractual term. It is then either a  condition or warranty in the technical senses described above.

15.If the misrepresentation becomes a part of the (written or oral) contract, then the remedies are as above, namely the innocent party can treat the contract as at an end (if the court regards it as a condition) or to apply for damages (if the court regards it as a warranty or if the innocent party does not wish to treat the contract as being at an end).

16. If the misrepresentation does not become a part of the (written or oral) contract, the innocent party has the right to rescind the contract and sue for damages in the case of fraudulent or negligent misrepresentation and, for innocent misrepresentation, he has the right to rescind or obtain damages in lieu. Rescission (see post entitled, The Contractual Remedy of Rescission) is an equitable remedy and, as such, it will not always be granted. For example, if the innocent party delays in claiming, the court will not order rescission.

17.Contracts  frequently include an ‘entire contact’ clause by which the contracting parties agree that only the contract terms , and nothing that preceded them, will  be effective. In relation to statements that preceded the contract, in AXA Sun Life Services PLC v Cambell Martin [2011] EWCA Civ 133  the court has emphasised the need for clear wording to exclude liability for pre-contractual misrepresentation and has held  the following wording was not sufficient to exclude liability for claims based on misrepresentation, “This Agreement […] constitutes the entire agreement […] this Agreement shall supersede any prior promises, agreements, representation, undertakings or implications whether made orally or in writing between you and us relating to the subject matter of this Agreement [….]”.

18. To be on the safe side, the party relying on the exclusion of the representation will need to use the clearest of language in the contract to successfully do so.

 

 

Plain English- an illustration of how it improves clarity

I have set out below two versions of a clause within a commercial lease. The first, the legal jargon version, is quoted by the Plain English Campaign on its website:

http://www.plainenglish.co.uk/specialist-areas/legal/examples-of-legal-jargon.html

The second, the plain English, version is my own.

The second version is the much clearer one and my legal English courses teach the strategies that will help you write in that style.

Legalese version

‘Not to discharge or suffer to be discharged into the Leekbrook or any watercourse or ditch situate on the demised premises any water of less purity than the water in the Leekbrook or watercourse or drain for the time being or of a temperature sensibly differing from that of the Leekbrook or watercourse or drain for the time being of any substance or matter (fluid or solid) which shall prejudicially affect the Leekbrook or watercourse or drain or the fish therein or which shall be or cause a nuisance or annoyance to the said Joshua Wardle Limited the owner or occupier for the time being of Leekbrook Dyeworks or to any other person.’

Plain English version

( Party) must not pollute or allow others to pollute that part of the of Leekbrook located on the Demised Premises or  any watercourse  or ditch located within the Demised Premises   ( in this Clause the said Leekbrook or any watercourse drain or ditch collectively called “the Prohibited Areas”)

with

(a) water which is either less pure than or of a different temperature from the water that was in the Prohibited Areas at the time of the pollution; or

(b) fluid or solid material that either

(i) damages injures or prejuducially affects the Prohibited Areas or any plants fish or other acquatic animals in them; or
(ii) causes nuisance or annoyance to the said Joshua Wardle Limited or the owner or occupier for the time being of the Leekbrook Dyeworks or to any other person.

Phrasal verbs frequently used by lawyers

Lawyers often use phrasal verbs (and collocations too, see future posting).This is a gap filling exercise on phrasal verbs. Where necessary, make changes to the verbs to fit in with the rest of the sentence. Please email me your answers and I’ll respond with correct answers. Email: keys2english@gmail.com The plane …………………………………… at 11.00 and arrives at noon. The police were ………………………………to investigate the theft. We need to ……………………………. this case and then get back to you. He ………………………………… of the partners’ meeting and was as angry as I have ever seen. They will try to put us under a lot of pressure but we must …………………………….. to them. The husband and wife ………………………………….. before co-habiting a year later. How do you ……………………………. completing registration of freehold land at the land registry? Quite unexpectedly, I …………………………………..my old boss yesterday. Please ………………………………………. your mind whether you wish to work with me on this file. Why did you ……………………………………. that lucrative job offer? The lawyer said he would ……………………………me this afternoon but I am still waiting for his call. Would you mind ……………………………………… while I try his extension number? You must ………………………………………….your language as it is too aggressive. Have you …………………………………………… this type of legal problem before? It’s a long time since I was last in court. I must …………………………………… on my advocacy skills.

a)      call in b)      storm out c)      bump into d)      tone down e)      split up f)       brush up g)      turn down h)      look into i)       go about j)       come across k)      take off l)       make up m)     hang on n)      stand up o)      get back

The following is a useful list of prepositions we use regularly in business.

on account of	under discussion	at the outset	for the sake of
in addition	in doubt	from the outset	on schedule
on the agenda	to some degree	by phone	ahead of schedule
in agreement with	to some extent	beside the point	behind schedule
in answer to	in exchange for	at this point	at short notice
on the basis of	in fact	in practice	in short supply
on behalf of	in favour of	in theory	at this stage
at best	in this field	at the present time	at stake
to the benefit of	at first sight	under pressure	from the start
on business	in general	on principle	out of stock
in business	on good terms with	in principle	under stress
in charge of	in hand	in all probability	on the subject
in certain circumstances	to hand	out of the question	on the surface
under no circumstances	on hand	by reason of	for the time being
in conference	in your interest	within reason	in time
in common	under no illusions	on the record	on time
in conclusion	under the impression that	off the record	out of time
in conjunction with	at this juncture	for the record	in view of
in connection with	to my knowledge	with regard to	with a view to
under consideration	in lieu of	with respect	on the whole
on the contrary	in the long run	in some respects	in a word
at all costs	in the long term	in retrospect	by fax
at cross purposes	by means of	in response to	in writing
in detail	in order	to return to	in return for
in demand	out of order	on the safe side	I n general