What is a Hold Harmless Agreement? A Waiver of Liability? An Agreement to Indemnify?
How do they differ? Who are they for? Should You Sign One?

Everyone should understand what they are signing, yet we find that many people do not. This web page is presented as a public service, because what you don't understand can hurt you.

Legal documents seem to "use a hundred words where ten would do" because ordinary language is not always precise enough. When a document has to stand on it's own, and mean exactly what the writer intended, more words are needed.

When a "hundred word" concept is used often, and has a generally agreed-upon wording and meaning, it is convenient to give it a shorter name. But for those of us who are not familiar with these abbreviations, the meaning may not be what we think. Here we explain several you should understand, if you are asked to agree to them.

Should I be Reading This?

Some people already know about these agreements, and use them as a normal part of doing business. Used properly they help to place risk and responsibility where it belongs. If that's you, you probably already know all that this page has to offer.

Others may have just heard of them, by being asked to sign something that contains one or more of these terms. This is for you!

Some events are so unlikely, that even though they do happen to someone almost every day, the chances are good that they will never happen to you. If you believe that there is no need to worry about things like that, you do not need to read any further. Good luck, and have a nice day.

Still with us? Good.

Promisor shall indemnify and hold harmless the Promisee, and all of his agents and employees from and against all claims, damages, losses, and expenses, including reasonable attorney's fees arising from such claims.

What does all that mean?

What is a Hold Harmless Agreement?

In brief, someone is asking you to agree to be sued instead of them, if something goes wrong in the activity you are both involved in.

That may not be what you expected! Most people think it means that you agree not to sue the other party, if something goes wrong. But that has another name.

The agreement not to sue is a Waiver of Liability. You may be asked to sign that too, but don't confuse them.

Waiver of Liability

A waiver (or release) is your voluntary act of relinquishing a known right to sue a person or organization for an injury.

What is an Indemnity Agreement?

In brief, someone is asking you to agree to cover their losses, if something goes wrong.


So all of these Agreements ask you to assume risks, that otherwise would fall on the other party. You might wonder if Indemnity and Hold Harmless clauses EVER have a proper use. They do. Here are some examples. (But there are bad uses too; please read all the way to the Bad News at the end.)

Protecting Work as an Employee

Responsibility for work as an Employee (or equivalent) is covered under the legal doctrine of Respondeat Superior, or "let the Master answer" also called "the Master-Servant Rule", which states that an employer either does, or should, know what their employee is doing, and is therefore responsible for their actions.

This implies that an injured party may make their claim against either the employer, the employee, or both.

Knowing that, like it or not, and rightly or not, they are going to be held responsible, an employer may, in some cases, be willing to sign a Hold Harmless Agreement, in which they, the employer would agree to hold the employee harmless against any legal claim.

For example, a doctor or other licensed professional who employs and supervises a technical assistant, may agree to shield their assistant from any possible malpractice claim. Not surprisingly, this makes it easier to find people willing to work for you, and in some fields, it is the common standard.

As an employee, or potential employee, you should know about this, and perhaps obtain such an agreement.

Volunteer Work

Volunteer Work is similar to work as an employee, but the law does recognize two important differences:

  • Volunteers have more freedom than Workers to decline to do something they feel is wrong. Therefore, they are more responsible for their own actions.
  • Volunteers may be less closely supervised than Workers, and also may have a wider range of tasks, both making their supervisior less responsible.
Here also, an organization may, in some cases, be willing to sign a Hold Harmless Agreement, shielding their Volunteer from any liability claim. As a potential volunteer, you should ask about it.

Intellectual Property Infringement

Singer, the Promisor, will produce entertainment, such as a musical performance for the Promisee's event. The Promisor will be using material for which they have, or will obtain, performance rights.

The Promisor agrees to hold the Promisee harmless from any claims by third parties, alleging that content use by Promisor infringes on any such third party's rights to such content

Rental of a Facility for a Third Party Event

Promisor is a catering company which wants to hold functions on the Promisee's property. This could be a function hall, but also might be a town park or pavillion. The property owner wants to protect itself in the event the catering company does anything, such as injuring a guest, serving liquor to a minor, etcetera, which would get the property owner sued.

Entry onto Land or Property

A potential buyer of land wants to inspect the property prior to closing the purchase, and needs to conduct tests and studies on the property. The buyer intends to hire experts to do these tests.

In this case, the buyer would promise to hold the current property owner harmless from any claims resulting from the buyer's inspection. Examples could include:

  • injury to an inspector hired by the buyer
  • a mechanic's lien by an inspector hired by the buyer
Leasing

Jones, a merchant, agrees to lease a retail store from Smith, under the condition that Jones will be held harmless from any structural liabilities. Examples could include:

  • injury to a customer due to a loose step
  • repair or replacement of the heating system
Subcontracting

Carpenter, a builder, agrees to have work done by Watt, an electrician, under the condition that Carpenter will be held harmless from any electrical system liabilities.

Use of a Service or Facility

When one "entity" (a person or organization) gives another entity permission to use their property in some way, either for free, or in exchange for payment or some other compensation, they understandably do not want to be put at risk, if the other party does something that causes damage or injury to occur on their property.

They might ask the other party to assume any risk of liability for such an occurence. That is, the user would agree to hold the owner harmless against any legal claim. Here are some examples:

  • Your Kite Club would like to hold a kite flying meet at the town beach. It is outside of beach season, so few if any other people would be there. The Town does not want to risk being sued if a kite hurts someone, regardless if they are part of your club or not. That seems both reasonable, and a responsible protection of Town funds.

    The Town also does not want to be sued if someone is hurt by tripping on a loose step, again regardless if they are part of your club or not. That seems reasonable to the Town, since the person would not have been there if your event was not going on. But it may not seem reasonable to you.

  • The Parent's Group at your child's school wants to run a Teen Dance, or perhaps a series of dances. They have gotten permission to use the School gym. But to do so, the Town requires both Indemnify and Hold Harmless clauses, since otherwise the Town could get stuck, either for repairs or for injury claims. Here again, that seems both reasonable, and a responsible protection of Town funds.

    Here too, the Town does not want to be sued if someone is hurt by tripping on a loose step, because they would not have been in the building if there was no dance.

So it all comes down to cleaning up our own mess if we make one, but there is always the small chance that it will cost a lot of money, more than the Kite Club or Parent's Group (and the members!) could afford to lose.. What to do?

Event Insurance

Groups or individuals in this situation can get event insurance for a surprisingly small fee. Lower rates may be available for a series of events, and also through any national "umbrella organization" the local group belongs to. It is foolish to go without this protection. In fact, many communities that require a Hold Harmless Agreement, also require proof of insurance, since it protects both their interests, and the interest of the group involved.

No Surprises!

What about that loose step? Who pays a doctor bill, the Town or the Insurance Company? They have to reach an agreement on that, and really on all terms and expectations, before you can go forward. You absolutely do not want to "wait to worry about that if we come to it" because you will be the one worrying.

A "broad form" agreement is one that says very little, and this should be avoided.

Unless a Promissor's insurance program specifically includes coverage of contractual liability under hold harmless clauses, the Promissor must pay out of his own pocket any losses that are incurred under the broad-form hold harmless clause arising from damages caused by the fault of someone else.

Unilateral Decisions

Any agreement that allows for Unilateral Decisions should be avoided. In this example, paragraph (2) allows a Promissee to decide to settle rather than defend against a claim, simply because it is less trouble, and all expenses fall to the Promisor.

(1) Promisor shall indemnify and hold harmless the Promisee, and all of his agents and employees from and against all claims, damages, losses, and expenses, including reasonable attorney's fees arising from such claims.

(2) Promisee shall have the option to settle any claims against them, prior to suit or judgement. In this event, Promisor shall hold Promissee harmless for such claims, and for any reasonable attorney fees incurred.

The Bad News

So are there places a Hold Harmless Agreement SHOULD NOT be used, but is? Again, yes.

Some venue operators, contractors and vendors use a Hold Harmless Agreement, and the related Waiver of Liability, and even an Indemnity Agreement, to place all financial responsibility on their customers. At least the customers that let them get away with it.

Some organizations, including many schools, both public and private, allow a third party to use these Agreements to place all financial responsibility on their members. Why would they do that?

A common example is a school activity or field trip, involving services of an outside contractor, for example a bus company, or a company that brings carnival rides, or a climbing wall, to the school.

Often, the outside company will have a Hold Harmless Agreement, and the related other Agreements, and the school simply passes them on to the parents, as part of a Permission Form. Here is an actual example, in which parents agree to:

  1. Waive Liability -- Forego claims to which we would otherwise be entitled, both for medical or other expenses, and for compensation for injury or death, due to any mishap in the activity. (Often, the form adds to this the phrase, "even if due to negligence". )
  2. Indemnify -- Cover losses or expenses suffered by the operator, due to any mishap in the activity.
  3. Hold Harmless -- Assume all Liability for claims by others against the operator, due to any mishap in the activity.
  4. Media Release -- Allow the operator to photograph particpants, and to make later use of these photographs.

Everyone will understand 1 and 4, and may choose to agree to them, but this example should show that no one should ever agree to items 2 and 3.

Assume the Ride or Climbing Wall collapses, and a teacher is injured:

So, should you sign it? Well, that really depends on what it says, and to a lesser degree, on what choices you feel you have. Oh, and what you have to lose.

This is not "just boilerplate" as you may be told, as they hand you a pen. Don't believe it! The meanings of these clauses are quite clear, at least to the people who wrote the form; if they do not intend to use them, they should not be in the form.

Why Is This Form Different From All Other Forms?

Most of the examples shown above involve professionals. They either know just what they're signing, or they know enough to get competent legal advice. They also know enough to carry insurance, and to make sure that anything they agree to is covered.

Even our Kite Club, or Parent's Group, if they are asked to sign something, should know enough to get competent legal advice.

But here, it's just a permission slip your kid brought home, and they need it signed, or they can't go.

Can't I Say I Didn't Understand?

Sure you can! Just don't expect it to make much difference.

Courts have upheld agreements that they feel support the public interest, by allowing organizations to provide activities that they otherwise would not. But not always.

Courts have rejected agreements in which they find that the participants did not agree freely and voluntarily, and with full understanding. But not always.

As far as I have been able to learn, there are no national standards on how such agreements are enforced, and regional practice may range from "anyone dumb enough to sign this needs to be protected from themself" at one end to "anyone dumb enough to sign this deserves what happens to them" at the other.

Either way, "anyone dumb enough to sign this" is a group you would rather not be part of.

Oh, just to be on the safe side (for them), some forms add another clause to "Certify that the person signing does understand and agree to the above terms" and a place to initial it.

What About Crimes? Can I Assume Someone Else's Guilt?

The short answer is "No." Someone can not get you to agree to be responsible for their crime, past, present, or future. Note, however, that the same act can be both a crime and a tort.

The differences between a crime and a tort are who brings the lawsuit, how the wrong is defined, and the types of punishments.

Crimes are defined by law (statute), prosecution is by the government, and punishment may include fines or jail.

The plaintiff who brings a tort suit is the person who was directly injured, torts are decided based on past cases (precedent), and the punishment is usually payment of monetary damages or other compensation, awarded to the person injured.

My Own History of Hold Harmless

I first encountered Hold Harmless on a school permission form, and when I learned what it implied, refused to sign it. My daughter not only could not participate in the activity, a climbing wall brought to the Middletown High School by the National Guard, but was a center of attention and discussion. She was of course furious, with me, not the school.

I wrote to the school, and to the National Guard, and was told that the form, which was provided by the Guard, and sent home by the school, was "a formality."

I was told it would be reviewed, and changed if necessary. It remained in use for the four years that I still followed it, and probably still.

Colby College sent me another Hold Harmless agreement for my daughter to be in their Semester Abroad program. The stakes were much higher! What to do?

I explained to her and her older brother that if I signed, we could lose our house and our savings, but that I would sign, if they first signed a written statement that they understood and accepted the risk. They signed that paper, and I signed the Colby one, now with a perfectly clear conscience.

As it turned out, she was not eaten by a lion, or hit by a falling anvil, and we all lived happily ever after.

OK, What to Do? Don't Wait! Be Proactive

Don't wait until your only options are all bad.

Something all the professionals know, and you should know too, is that the terms are negotiable before you sign, and should not be signed until everyone is satisfied, where "everyone" often includes the insurance companies that could wind up paying.

School permission forms vary widely in this area, and a quick Google search for "school permission hold harmless" will give you a good sampling to look at. You will find, as I found, that some schools:

So, if you don't like how your school's form stacks up, you and other parents, as many as possible, might want to have a little chat with the school about their policies, and be prepared to show them examples of how things are being done by others..

Expect to hear the public interest defense, that it allows them to provide activities that they otherwise would not. This is not true! Any reasonable activity can be covered by insurance; the only question is who will pay for it, which may depend on the nature of the event.

One could argue that terms that are not negotiable are not voluntary either.


Who are You? Are You a Lawyer? Or an Expert?

My name is Morris Hirsch. I worked for many years as a software developer, and now sometimes substitute teach Math and Science. By personality, and by training, I like to read slowly and carefully, and look up anything I do not understand.

When my child brought home a permission form with phrases I did not understand, I decided to find out more about them. I did not like what I found, and this page is the result.

No to both, I am not a Lawyer, or an Expert and this is just what I have been able to learn by my own research. I am neither qualified or licensed to give legal advice. Therefore, this is offered as general information, but is not legal advice.

My real suggestion is that you ask a lawyer before you sign. And if they say not to sign it don't. Your kid may miss out on some school activity, but they will have a house to come home to.

Comments, Experiences, Examples, etc.

Anything to add, correct, improve? Do you have any examples, agreements like these that you have been asked to sign? I am interested in good forms that seek only reasonable protection, and also in bad forms that attempt to unload all responsibility. A nice collection of both the good and bad can be a real help in a discussion.
Let me know! morris_hirsch@hotmail.com and thank you.

Some of my Other Interests on the Web

Both of these started out in support of my effort to run for Town Council. I did run a couple of times, did not get elected, and the sites have evolved to other purposes.

My Personal Website, MorrisHirsch.com currently is mostly about teaching "STEM" subjects, which stands for Science, Technology, Engineering and Mathematics, and is all about how things work. What things? Both the things we make and the natural world.

Aquidneck Island Directory, aquidneck.us