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Warranties v Indemnities

Warranties v Indemnities

Postby Scienke » Tue May 16, 2017 9:21 am

Is it the case that a warranty (most probably in some form of contract) requires a claimant to take action to mitigate their losses.

But an indemnity allows a claimant to behave negligently knowing that the respondent who signed the indemnity will have to pay the bill?
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Re: Warranties v Indemnities

Postby theycantdothat » Tue May 16, 2017 10:27 am

See this discussion: http://www.inhouselawyer.co.uk/index.ph ... ifference/

But an indemnity allows a claimant to behave negligently knowing that the respondent who signed the indemnity will have to pay the bill?


I think there has to be a difference between taking no action to mitigate a loss and doing something which aggravates the loss.
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Re: Warranties v Indemnities

Postby atticus » Tue May 16, 2017 10:30 am

That article appears to relate to the position in Ireland, but seems broadly correct.

I disagree with the OP's second proposition.
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Re: Warranties v Indemnities

Postby theycantdothat » Tue May 16, 2017 10:55 am

atticus wrote:That article appears to relate to the position in Ireland


I may just not be able to spot it, but I cannot see anything which indicates that - other than perhaps the phrase "to recover one euro for every euro of loss".
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Re: Warranties v Indemnities

Postby atticus » Tue May 16, 2017 10:57 am

the word Ireland, at the top by the date. Reinforced bya reference to in Ireland and the UK.
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Re: Warranties v Indemnities

Postby Scienke » Tue May 16, 2017 11:02 am

atticus wrote:That article appears to relate to the position in Ireland, but seems broadly correct.

I disagree with the OP's second proposition.


Could you expand?

Is it down to the individual wording of the agreement or would perhaps the The Unfair Contracts Act come into play on the basis that it may not be deemed reasonable to hold one person liable for the negligent behaviour of another?
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Re: Warranties v Indemnities

Postby theycantdothat » Tue May 16, 2017 11:05 am

atticus wrote:the word Ireland, at the top by the date.


Got it!
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Re: Warranties v Indemnities

Postby atticus » Tue May 16, 2017 11:18 am

It's about what caused the loss. Simple rules of causation.
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Re: Warranties v Indemnities

Postby theycantdothat » Tue May 16, 2017 11:23 am

Scienke wrote:Could you expand?

Is it down to the individual wording of the agreement or would perhaps the The Unfair Contracts Act come into play on the basis that it may not be deemed reasonable to hold one person liable for the negligent behaviour of another?


It is a general principle that a man cannot benefit from his own wrongdoing.

So, broadly:

an indemnity allows a claimant to behave negligently

is incorrect

while

an indemnity allows a claimant not to take action to mitigate his loss

is correct.
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Re: Warranties v Indemnities

Postby Scienke » Tue May 16, 2017 12:22 pm

theycantdothat wrote:
It is a general principle that a man cannot benefit from his own wrongdoing.



But in the eyes of the law is negligence IE: failure to take proper care, an act of wrongdoing?

Some might argue that negligence might arise from a mistake whereas wrongdoing would have to be deliberate.
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