Indemnification clauses in contracts are, in principle, enforceable, but may be subject to restrictions provided for in the law. It is relatively common to stipulate in commercial agreements that the indemnifying party will indemnify and hold harmless the other party against claims of third parties related to the subject matter of the agreement.

The basic rule under Argentine law is full indemnification of economic or moral damages caused by illegal conduct, whether that conduct constitutes a contractual or a tort violation.

The parties are free to include contractual rules as to the extent of their indemnification obligations.

Penalty clauses and liquidated damages clauses are acceptable, but they may be limited or amended by the courts if their terms are deemed abusive.

In the absence of contractual provisions, the indemnification's extent will depend on circumstances such as the willful or negligent nature of the violation, foreseeability of the damages caused and the comparative fault of the parties.

Express indemnities are recognized and are generally enforceable.

Caps on liability under indemnification clauses are generally enforceable but, in some circumstances, may be considered unfair, particularly where they are onerous on consumers, and therefore unenforceable.

In general, express indemnities stated in contracts are permissible. Note that there is no indemnification concept comparable to US law in Austria.

The concept of indemnification will, in general, be interpreted in accordance with Belgian law principles (which do not define indemnification) to provide a similar effect, such as a guarantee provided to the indemnitee.

Indemnification provisions are generally recognized and enforceable. Normally they include the obligation to defend, indemnify (ie, pay damages) and hold harmless. Indemnification is not limited to 3rd-party claims.

Even if the parties do not establish a contractual obligation to indemnify, there may be indemnification obligations provided by law.

As a general rule, indemnification is measured by the extent of the damage, which normally includes actual losses and lost profits.

Indemnity clauses, like other contractual clauses, will usually be enforced if negotiated between the parties. However, standard principles such as inequality of bargaining power (particularly in the case of consumer transactions), ambiguity or manifest unfairness of the clause may make such a clause unenforceable in a particular case.

Express indemnities agreed upon in contracts are recognized and generally respected. There are some statutory limits on the amount and indemnification clause that may be set forth.

Express indemnities stated in contracts are recognized and generally respected. Courts will not usually imply an indemnity obligation in a contract.

Express indemnities stated in agreements are recognized, respected, and generally have 3 obligations:

• Defend
• Indemnify (pay for the damages caused) and
• Hold harmless (if the indemnifying party does not have of any other liability arising out of the claim).

The indemnification clauses may extend to third parties.

Express indemnities stated in contracts are recognized and generally respected, though relevant case law is lacking.

The "promise of indemnity" set out as a contractual type in the Civil Code includes the element of indemnification (ie, payment of damages) only. In contracts, the other distinct obligations are often included – that is, defense and holding harmless (ie, indemnifying party responsible for any other liability arising out of the claim) – and this contractual arrangement should be considered valid and enforceable.

Caps on liability under indemnification provisions can be enforceable.

Indemnification clauses of contracts are generally enforceable, unless they are unfair.

Indemnification clauses are usually enforceable and relatively common in B2B contracts.

Indemnification clauses are commonly used in French contracts, in particular where intellectual property rights are involved.

Generally, these clauses have 3 distinct obligations: defend, indemnify (ie, pay damages) and hold harmless (ie, indemnifying party responsible for any other liability arising out of the claim). Indemnification is not limited to 3rd-party claims.

Caps on liability under indemnification provisions may be enforceable, provided that the limitation liability clause does not empty the essential obligation from its substance. Indemnification clauses are generally unenforceable against consumers, provided that such clause is not considered as unfair pursuant to consumer law provisions and does not create significant imbalance between the rights and obligations of the parties for standard, non-negotiated contracts. 

While the obligation to indemnify is generally part of the damage claim (claims by third parties as damage), parties may agree on specific indemnification provisions (eg, for breach of IP rights). Restrictions apply in general terms and conditions – for example, an indemnification regardless of fault – will generally be invalid.

Express indemnities stated in contracts are recognized and generally respected.

In addition, a principal (or an employer) is under a duty to indemnify an agent (or an employee) against all expenses and liabilities incurred in the performance of lawful acts within the scope of the agent’s (or employee’s) duties. Courts do not usually imply an indemnity obligation in a contract where there is an express indemnity.

An indemnification provision in a contract generally provides for indemnifying the other party and holding the other party harmless against losses, damages, expenses, costs, claims and other types of liability arising from breach of a (specified) provision in the underlying contract or from another specified claim (eg, a 3rd-party claim). Indemnification may cover claims between parties as well as 3rd-party claims.

Caps on liability under indemnification provisions are generally enforceable.

Considering that no special indemnification rules regulate commercial contracts, the general contractual rules of the Civil Code shall apply to them.

Indemnities stated in contracts are recognized and enforceable.

Indemnification provisions generally have 3 distinct obligations: defense, indemnify (ie, pay damages) and hold harmless (ie, indemnifying party responsible for any other liability arising out of the claim).

Caps on liability under indemnification provisions can be enforceable.

The Contract Act recognizes indemnity as a contract by which 1 party promises to save the other from loss caused to them by the conduct of the promisor themselves, or by the conduct of any other person.

However, the Indian courts have held that an express indemnity clause may not be necessary in face of implied rights to indemnity already existing under Indian laws.

The promisee in a contract of indemnity, acting within the scope of their authority, is entitled to recover from the promisor:

1. All damages which they may be compelled to pay in any suit in respect of any matter to which the promise to indemnify applies.
2. All costs which they may be compelled to pay in any such suit if, in bringing or defending it, they did not contravene any orders of the promisor; and acted as would be prudent for them to act in the absence of a contract of indemnity; or if the promisor authorized them to bring or defend the suit.
3. All sums which they may have paid under the terms of any compromise of any such suit, if the compromise was not contrary to the orders of the promisor, or was prudent to be made in the absence of a contract of indemnity or is authorized by the promisor.

Express indemnities stated in contracts are recognized and generally respected.

Indemnity clauses in contracts typically fall into 2 categories

• Clauses where one party agrees to indemnify the other against liability which that other may have toward him/her; and

• Clauses in which one party to the contract agrees to indemnify the other party against liability that the other party may incur toward 3rd parties.

Indemnities are generally respected and recognized. Indemnification provisions are generally enforceable unless they involve indemnification of conduct that has been declared unenforceable by statutes or the courts (such as fraud, wilful injury to persons or property and any other future or past unlawful acts) or are contrary to public policy. 

It is not unusual to see limitations and exclusions of liability applying to indemnities. In general, these will be enforceable under Irish law.

Under Israeli law, parties are free to enter into an agreement where one party will indemnify the other party for any losses or damages suffered by the indemnitee arising out of or as a result of specified events. In practice, indemnity agreements usually include indemnity carve-outs and exclusions (such as limited duration and scope of liabilities triggering the obligation to indemnify or limitation in indemnity amount).

Indemnification for criminal fines are not enforceable in Israel as they are usually regarded as contravening public policy.

Under the general provisions of the Italian Civil Code, only the damages that are an immediate and direct result of the non-fulfillment or delay in the performance of the contractual obligation (Section 1223 of the Italian Civil Code) can be claimed by the parties.

The concept of indemnification does not exist under Japanese law. Instead, a contract party will be entitled to certain remedies upon breach of contract, such as damage claims and specific performance. Separately, damage claims are also available in tort cases.

Either in contract or in tort, if a party seeking compensation for monetary damages was also negligent, a Japanese Court may consider reducing damages under the concept of comparative negligence.

Under the general provisions of the Luxembourg Civil Code, only the damages that are the immediate and direct result of the non-performance or delay in the performance of the contractual obligation (Article 1142 and following of the Luxembourg Civil Code) may be claimed by the parties.

Federal and state civil laws set forth the provisions related to indemnification for damages and losses, which shall be, and are limited to, direct and immediate consequence of the act or omission that generated the indemnification.

Liquidated damages provisions may be used in agreements, provided that the amount of such liquidated damages may not be greater than the principal amount of the agreement.

The concept of indemnification will, in general, be interpreted in accordance with the Dutch law principles (meaning the principles of reasonableness and fairness) and is subject to freedom of contract.

Express indemnities are recognized and generally respected.

However, with respect to specific subject matter, for example pecuniary penalties in relation to entering into cartel provisions, an indemnity may be void. In addition, some statutes require additional formalities before an indemnity provision will be enforceable (such as pursuant to the Credit Contract and Consumer Finance Act 2003).

Indemnification under Nigerian law is generally enforceable.  It can either arise from contract, from an obligation resulting from the relation of the parties (express or implied) or by the statutes. The rule of indemnity is aimed at restoring the party who has suffered a loss within the contemplation of the parties to the financial position they occupied before the loss in relation to the subject matter. Indemnity principle introduces some amount of certainty to an agreement. Parties are able to measure their financial obligations to each other.

Indemnification clauses of contracts are generally enforceable unless they are unfair.

N/A

Express indemnities stated in contracts are recognized and generally respected.

Implied indemnities are based on theories of comparative indemnity or partial indemnity or comparative equitable indemnity (ie, comparative fault of the parties). Courts may award indemnity obligations in the form of moral, exemplary or nominal damages, notwithstanding that an express indemnity is already stated in a contract.

Express indemnities based on comparative fault are enforceable.

Indemnification provisions are generally enforceable unless they require indemnification of behavior that statutes or courts have held to be unenforceable (such as fraud, willful injury to a person or property and other future unlawful acts); indemnification for past unlawful acts is enforceable.

Indemnification provisions generally have 3 distinct obligations: defend, indemnify (pay damages) and hold harmless (the indemnifying party is responsible for any other liability arising out of the claim). Indemnification is not limited to third-party claims.

Caps on liability under indemnification provisions can be enforceable.

It is permissible for 1 party to indemnify the other party against the claims of 3rd parties. Such clauses are commonly used in contracts concerning the transfer or licensing of intellectual property rights.

In transactions, indemnification clauses are usually used for defined and already existing risks, to ensure that the indemnifying party will hold the other party harmless in the event of any 3rd-party claims.

Indemnification clauses in contracts are, in principle, enforceable, but may be subject to restrictions provided for in the law. It is relatively common to stipulate in commercial agreements that the indemnifying party will indemnify and hold harmless the other party against claims of 3rd parties related to the subject matter of the agreement.

Express indemnities stated in contracts are recognized and generally respected. Such express indemnity may be censored by Romanian courts in very limited situations.

Implied indemnities are additionally possible and usually include the loss actually suffered by the aggrieved party and loss of profit. In determining the extent of the indemnity, account is also taken of the costs incurred by the aggrieved party, within a reasonable limit, to avoid or limit the damage.

Express indemnities based on comparative fault are enforceable. Caps on liability under indemnification provisions may be enforceable.

Indemnification is currently recognized as enforceable in Russia, but in limited scope. Additionally, this concept is still very new and untested.

The enforceability of an indemnification obligation is ultimately subject to court evaluation and discretion. That said, a party is only likely to be held liable under an indemnity if found to be a direct cause of losses which have been actually incurred by the party benefiting from the indemnity. Indirect and consequential losses are unlikely to be recoverable.

Express indemnity clauses in contracts are common and enforceable in Singapore. However, this is subject to the reasonableness test under section 4(1) of the Unfair Contract Terms Act 1977, which clarifies that a contract cannot require a consumer to indemnify another person (whether a party to the contract or not) for liability that may be incurred by the other party for negligence or breach of contract, unless the contract term satisfies the requirement of reasonableness.

Not applicable for this jurisdiction.

As a general rule under Korean civil law, if a contract obligates a putative indemnitor to defend any 3rd-party claim raised against an indemnitee, the indemnitor will have a contractual duty to assume the defense.

Express indemnities stated in contracts are recognized and generally respected.

Indemnification provisions are generally enforceable unless they require indemnification of behavior that statutes or courts have held to be unenforceable (such as fraud, willful injury to person or property and other future unlawful acts).

Caps on liability under indemnification provisions can be enforceable.

Courts have the power to moderate indemnity payments agreed by the parties to a contract.

Unless highly biased and unfair, an indemnification clause (and similar clauses under Swedish contract law) may be enforceable under Swedish law. Indemnification clauses are not uncommon in intellectual property licensing agreements.

In a business-to-consumer situation, the general principle is that the consumer's legal rights may not be limited by a trader.

Indemnification provisions are often used and are generally enforceable.

Express indemnities stated in contracts are recognized and generally respected. A cap on liability under indemnification provisions is generally enforceable, provided that liabilities arising from willful misconduct or gross negligence shall not be released in advance.

Under Ukrainian laws, the damages shall be reimbursed in full unless otherwise prescribed by the agreement and, in certain instances, by law. Pursuant to Ukrainian laws the damages include:

• Actual damages – losses caused to the party in result of destruction or damaging of property, as well as expenses made, or need to be made, by the party for restoring of its violated right and
• Loss of profit.

In addition, under Ukrainian law, parties to an agreement may establish the amount of penalties (eg, fine and penalty interest) to be paid in case of failure of the parties to perform certain obligations under the agreement. The amount of penalties in the agreement can be determined as a percentage of the value of unfulfilled obligations, as a fixed monetary amount, as a percentage of the value of obligations irrespective of the stage of their fulfillment or as the multiple amount to the value of goods (ie, works, services).

However, for the breach of certain types of obligations (eg, monetary obligations), the level of penalties may not exceed a statutory determined limit. Ukrainian legislation stipulates that parties may define the amount of interest for the late payment of debts under the agreement; nevertheless, the amount of penalty interest shall be calculated based on the sum of overdue debt and shall not exceed the double discount rate of the National Bank of Ukraine (NBU) effective during the period for which the penalty interest is paid. Current discount rate of the NBU is equal to 15 percent per annum (ie, double discount rate is 30 percent).

In the UAE, a contracting party is only permitted to indemnify another contracting party for losses which are proven to have been or will be actually incurred by the other party. Successful litigants usually only recover a nominal amount in respect of their legal costs of litigation which have little bearing on their actual legal costs.

Indemnities are generally enforceable as a promise to be responsible for another's loss on a pound-for-pound basis. In addition, depending on the drafting, indemnities may not be subject to a duty of mitigation on the party making such indemnity claim (albeit that case law is not consistent on this point).

Because indemnities are primary obligations, they can remain valid even if the underlying transaction is set aside for any reason. This is different to the provision of a guarantee, which, as a secondary obligation, is dependent on the primary obligation existing.

An indemnity remains subject to the usual contractual principles of offer, acceptance, intention to create legal relations and consideration just like any other contractual terms.

Express indemnities stated in contracts are recognized and generally respected.

Implied indemnities are based on theories of comparative indemnity or partial indemnity or comparative equitable indemnity (ie, comparative fault of the parties). Courts do not usually imply an indemnity obligation in a contract where an express indemnity is already stated.

Express indemnities based on comparative fault are enforceable.

Indemnification provisions are generally enforceable unless they require indemnification of behavior that statutes or courts have held to be unenforceable, such as fraud, willful injury to a person or property and other future unlawful acts; indemnification for past unlawful acts is enforceable.

Indemnification provisions generally have 3 distinct obligations: defense, indemnify (ie, pay damages) and hold harmless (ie, indemnify party responsible for any other liability arising out of the claim). Indemnification is not limited to third-party claims.

Caps on liability under indemnification provisions may be enforceable.