Mar 14, 2010 11:57
14 yrs ago
6 viewers *
Dutch term

schadeloosstelling

Dutch to English Law/Patents Law (general)
Dear Colleagues,

I actually have two related terms to translate, namely "schadeloosstelling" and "schadevergoeding". The context is that a Dutch farmer, following an epidemic and the loss of his cattle, received "een schadevergoeding" from the government but is still fighting for "een schadeloosstelling". So in this context the two terms are obviously not synonyms, although they are often used as such (or seem to overlap) in many terminology resources.
As possible candidates I already have the English terms "compensation", "damages", "indemnity", "reparations" and maybe also combinations of these, but this is not my specialist field and your suggestions would be very welcome.

Many thanks,

Giles

Discussion

Jack den Haan Mar 14, 2010:
That confirms my thoughts, Giles.
PS: I Forgot the word 'made' in my first entry. That should have read: "Seems to me a distinction is being *made* between full compensation (schadeloosstelling) and compensation that has been given by the government but is not regarded as full compensation by the farmer (schadevergoeding)". Cheers!
Giles Rosbander (asker) Mar 14, 2010:
For confidentiality reasons I have to change the text a little, but the sense is pretty much as follows:
"Hij voerde een lange strijd voor een schadeloosstelling. Maar zonder succes. Hij heeft alleen een schadevergoeding gekregen."

Thanks for the suggestions/feedback already received, very useful, and I'll respond 'officially' tomorrow.

All the best,

Giles
Jack den Haan Mar 14, 2010:
Full and partial compensation? Seems to me a distinction is being between full compensation (schadeloosstelling) and compensation that has been given by the government but is not regarded as full compensation by the farmer (schadevergoeding).
writeaway Mar 14, 2010:
please post the full Dutch sentence please post the full sentence in Dutch

Proposed translations

13 mins
Selected

compensation

schadevergoeding = damages

the farmer received compensation from the government , but is still fighting for damages

ie compensation did not cover all his losses

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Note added at 17 mins (2010-03-14 12:15:26 GMT)
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its not 'indemnity' - if you are given indemnity, you are given insurance cover
Something went wrong...
4 KudoZ points awarded for this answer. Comment: "Thanks, that helps me further along the path. I would now tend to a solution along the lines of 'he received compensation from the government but is still fighting for full damages'. Luckily I still have a week before delivery, so I can sleep on this one a little more."
7 mins

granting an indemnification or compensation for damages

In Part V, I will outline how the statute of limitations is determined to accrue in ... when it was not clear whether they would be granted indemnification, ..... Scharf filed this action for indemnification to recover the expenses he ...
www.allbusiness.com/professional.../4097475-1.html
Peer comment(s):

neutral writeaway : this is Dutch, not Deutsch
27 mins
your comment is incomprehensible because the moment you´re granted a compensation you are "schadlos gestellt" the Dutsch Schadeloosstelling corresponds to the German Schadlosstellung.
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Reference comments

2508 days
Reference:

not so sure. have a look at this (schadeloosstelling > schadeloos stellen > hold harmless?)

"14.SPECIFIC INDEMNITIES
18.1 Specific Indemnities
The Seller shall indemnify (vrijwaren) and hold harmless (schadeloosstellen) each member of the Purchaser's Group and each Group Company from any Damages (including fines and penalties), claims, actions, proceedings, awards, settlements, judgments and any other liabilities that any member of the Purchaser's Group or any Group Company may at any time suffer or incur, become subject to or owe as a result of or in connection with:"

(https://www.lawinsider.com/usage/koninklijke-philips-n-v-use... )

*****************************
"ARTICLE 6 – REMEDIES

6.1 Breaches and defaults. In the event of a Breach (“inbreuk”) of any of the Warranties (“Breach”) the Warrantor shall reimburse and hold harmless (“schadeloos stellen”) either the Purchaser or the pertinent member of the Group (at the option of the Purchaser) for all Damages suffered by the Purchaser or the relevant member of the Group as a result of such Breach, without prejudice to other statutory rights of the Purchaser. In addition, in the event of a default (“tekortkoming”) in the compliance (“nakoming”) by Seller of any other obligations under this Agreement (“Default”), the Seller shall reimburse and hold harmless (“schadeloos stellen”) either the Purchaser or the pertinent member of the Group (at the option of the Purchaser) for all Damages suffered by the Purchaser or the relevant member of the Group as a result of such Default, without prejudice to other statutory rights of the Purchaser."

(https://www.sec.gov/Archives/edgar/data/1075531/000110465905... )

*****************************
"10. Liability
10.1 The Seller shall be liable, irrespective of the legal basis for a claim, for all damages, losses and costs which Innopart Medpro, its employees (“ondergeschikten”) or third parties engaged by Innopart
Medpro in the performance of the Contract (“niet-ondergeschikten”) may suffer or incur as a result of or in connection with the Products and/or the sale, supply and delivery of the Products and/or the
Services and/or the provision and performance of the Services, except when these damages, losses and costs are caused by gross negligence or wilful intent of Innopart Medpro or its management.
10.2 The Seller shall be liable for and indemnify and hold Innopart Medpro harmless from and against (“vrijwaren en schadeloos stellen”) any claims, irrespective of the legal basis for a claim, for
compensation of damages, losses and costs of third parties arising out of or in connection with the sale, supply and delivery of the Products and/or the provision and performance of the Services. "

(http://www.innopart.nl/purchase_terms.pdf )

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De licentiehouder zal Dell vrijwaren en schadeloosstellen tegen alle claims, rechtsvorderingen of eisen met betrekking tot zijn of haar zakelijke activiteiten of het gebruik van het logo in verband met dergelijke activiteiten of anderszins.

=

Licensee will indemnify and hold Dell harmless against any and all claims, actions, or demands relating to its business activities or the use of the Logo in connection with such activities or otherwise.

(a DELL TM I found on TAUS)

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"De klant zal SDL, de eigenaars, directeurs, werknemers, vertegenwoordigers, agenten en opvolgers schadeloosstellen, verdedigen en vrijwaren en instaan voor alle verliezen, schade, kosten en uitgaven, inclusief gerechtelijke kosten die voortvloeien uit of incidenteel zijn aan rechtszaken, claims en verzoeken gebaseerd op

=

The Client shall indemnify, defend, and hold harmless SDL, its owners, directors, officers, employees, representatives, agents, successors and assigns from and against any and all losses, damages, costs and expenses, including reasonable legal fees, resulting from, arising out of or incidental to any suit, claim or demand based on…"

(an SDL TM I found on TAUS)

*****************************
"Hold harmless clause
Resource type: Glossary item Status: Maintained Jurisdictions: Any UK jurisdiction, United Kingdom

A clause, often included as part of an indemnity provision in the US, under which one contracting party (A) undertakes not to hold another contracting party (B) responsible for ("harmless against") certain claims and liability that A may incur, so that A will not sue B for recovery of losses suffered by A in the situations specified in the contract. Although a hold harmless clause is often located in indemnity provisions, it is not, in itself, an indemnity."

(http://uk.practicallaw.com/5-202-3993 )

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Note added at 2508 days (2017-01-24 14:19:31 GMT) Post-grading
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see also: https://www.google.co.uk/url?sa=t&rct=j&q=&esrc=s&source=web...

which contains:

"De woordenboekbetekenis van de term vrijwaren’ is
‘ergens voor behoeden, voor iets instaan’.12 Dat wil zeggen,
de ander behoeden voor een bepaald risico. Of nog
anders gezegd: de ander vrij van enig nadeel houden. In
het Engels wordt een onderscheid gemaakt tussen ‘to
indemnify’ en ‘hold harmless against’. De Engelse vertaling
van ‘to indemnify’ is ‘schadeloos stellen’, terwijl ‘to
hold harmless against’ kan worden vertaald als ‘vrijwaren
tegen’.13"

=>

De woordenboekbetekenis van de term vrijwaren’ is ‘ergens voor behoeden, voor iets instaan’.
Dat wil zeggen, de ander behoeden voor een bepaald risico. Of nog anders gezegd: de ander vrij van enig nadeel houden.
In het Engels wordt een onderscheid gemaakt tussen ‘to indemnify’ en ‘hold harmless against’.
De Engelse [should be "Nederlandse"] vertaling van ‘to indemnify’ is ‘schadeloos stellen’, terwijl ‘to hold harmless against’ kan worden vertaald als ‘vrijwaren tegen’.

=>

‘schadeloos stellen’ = ‘to indemnify’
‘vrijwaren tegen’ = ‘to hold harmless against’

*****************************
JurLex has:

vrijwaren tegen =
to indemnify against
to safeguard against
to warrant against
to protect against
to protect from
(A) (ook:) to hold harmless against

schadeloosstellen =
to compensate, to indemnify

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Note added at 2508 days (2017-01-24 14:54:37 GMT) Post-grading
--------------------------------------------------

ha ha, OK, for those with a lot of time on their hands, here is what Garner has to say about it:

indemnify

A.And hold harmless; save harmless.

Are these phrases—indemnify and either hold harmless or save harmless—synonymous? This is a crucial question that has frequently arisen in American litigation, with varying results. The correct answer is most instructive, not just about the phrases at issue but about what happens when lawyers and judges are insufficiently aware of legal terminology and its history. It will be necessary to go into quite some detail in this entry. All the “s.v.” references in what follows mean that the dictionaries mentioned are unpaginated, and one must simply look under the term mentioned in its alphabetical place.

First, consider the etymology of indemnify. Some authorities suggest that the word derives from in- “to take away” + damnum “loss.” But the better etymology is indemnis “harmless” + -fy “to make.” A steady line of authorities, from the 18th century on, has recorded the meaning of indemnis as being translatable as “harmless.” Here's how the dictionaries have defined indemnis:

1735:
“without hurt, harm or damage, harmless.”Adam Littleton, Latin Dictionary in Four Parts (6th ed. 1735) (s.v. indemnis).
1786:
“unhurt, harmless.”Entick's New Latin–English Dictionary (pt. 2) 221 (William Crackelt ed., rev. ed. 1786).
1845:
“without hurt, harm, or damage; harmless.”Thomas Morrell, An Abridgment of Ainsworth's Dictionary, English and Latin (pt. 2) 253 (William Duncan ed., 1845).
1891:
“without hurt, harm, or damage; harmless.”Henry Campbell Black, A Dictionary of Law 614 (1891).
1893:
“without loss, damage or harm; unharmed; one who experiences no loss, or is affected by no loss.”J. Kendrick Kinney, A Law Dictionary and Glossary 383 (1893).
1916:
“undamaged.”James A. Ballentine, A Law Dictionary 234 (1916).
The word indemnis is Latin, and the modern verb indemnify answers perfectly to the modern French indemniser, as the phrase indemniser d'une perte is to indemnify someone for a loss. See R. Lusum, French Commercial Terms and Phrases 90 (1922); see also 1 N. Salmon, Boyer's Royal Dictionary Abridged (22d ed. 1814) (defining indemniser as “to save harmless”); cf. The Law-French Dictionary (1701) (defining the law french indemne as “saved harmless”).

Now let's consider the modern English verb in its own right. The first English-language lexicographer to record a separate entry for indemnify was Elisha Coles, who in 1676 defined it as “to save harmless.” An English Dictionary (1676) (s.v. indemnify). Other lexicographers soon followed suit:

1707:
“to save harmless.”Glossographia Anglicana Nova (1707) (s.v. indemnify).
1745:
“to save, or bear harmless.”Nathan Bailey, An Universal Etymological English Dictionary (11th ed. 1745) (s.v. indemnify).
1755:
(1) “to secure against loss or penalty”; (2) “to maintain unhurt.”Samuel Johnson, A Dictionary of the English Language (1755) (s.v. indemnify).
1777:
“to save, keep, or bear harmless; to secure from charge or danger, etc.”Thomas Dyche, A New General English Dictionary (16th ed. 1777) (s.v. indemnify).
1789:
“to secure against loss or penalty; to maintain unhurt.”Thomas Sheridan, A Complete Dictionary of the English Language (2d ed. 1789) (s.v. indemnify).
1806:
“to maintain unhurt, to secure.”Noah Webster, A Compendious Dictionary of the English Language 156 (1806).
1810:
“to secure against loss, to maintain unhurt.”Thomas Browne, The Union Dictionary (1810) (s.v. indemnify).
1813:
“to secure against loss or penalty; to maintain unhurt.”A New Critical Pronouncing Dictionary of the English Language (1813) (s.v. indemnify).
1821:
“to secure against loss or penalty.”Stephen Jones, A General Pronouncing and Explanatory Dictionary of the English Language 202 (1821).
1828:
(1) “to save harmless; to secure against loss, damage, or penalty”; (2) “to make good; to reimburse to one what he has lost.”Noah Webster, An American Dictionary of the English Language (1828) (s.v. indemnify).
1845:
“to save or free from hurt, injury, or harm; loss, or penalty, or punishment; to save harmless or uninjured.”Charles Richardson, A New Dictionary of the English Language 417 (2d ed. 1845).
1845:
“to secure against loss or penalty; to maintain unhurt.”John Walker, Walker's Critical Pronouncing Dictionary and Expositor of the English Language 287 (John Davis ed., 1845).
1850:
“to save harmless; to secure against loss, damage or penalty. To make good; to reimburse to one what he has lost.”1 John Boag, A Popular and Complete English Dictionary 704 (1850).
1861:
“to save harmless; to secure against loss, damage, or penalty; to reimburse, to make good.”Arnold J. Cooley, A Dictionary of the English Language 311 (1861).
1867:
“to make or save harmless; to secure against loss or damage; to secure against future loss … to put one in the situation he was in, before sustaining a loss. In some of the old books, this word is written indempnify.”2 Alexander M. Burrill, A Law Dictionary and Glossary 67 (2d ed. 1867) (internal citations omitted).
1879:
“to make free of loss. The word is used with two shades of meaning: 1. To make compensation for a loss already sustained; 2. To give assurance or security that one shall have compensation for a loss anticipated. Thus one may speak of indemnifying an owner of land taken for public use, meaning to pay him the value; or of indemnifying the sherrif, meaning to give a bond to reimburse any damages which may be collected from him.”Benjamin Vaughan Abbott, Dictionary of Terms and Phrases Used in American or English Jurisprudence 596 (1879) (internal citations omitted).
1882:
“to indemnify is to make good a loss which one person has suffered in consequence of the act or default of another, and the operation of making good the loss is called indemnification. Thus, if A. fails to pay a debt which he owes to B., and a surety, C., pays it, he is said to indemnify B., and B. is said to obtain indemnification. So, if A. wrongfully causes a loss to B., A. is liable to indemnify B. for the loss which he has sustained.”Charles Sweet, A Dictionary of English Law 424 (1882).
1890:
“to compensate for loss, sustained or anticipated.”William C. Anderson, A Dictionary of Law 534 (1890).
1891:
“to save harmless; to secure against loss or damage; to give security for the reimbursement of a person in case of an anticipated loss falling upon him. Also to make good; to compensate; to make reimbursement to one of a loss already incurred by him.”Henry Campbell Black, A Dictionary of Law 614 (1891).
1893:
“to make or save harmless; to secure against loss or damage; to make good; to reimburse to one what he has lost.”J. Kendrick Kinney, A Law Dictionary and Glossary 383 (1893).
1914:
“to secure or save harmless against loss or damage, of a specified character, which may happen in the future. To compensate or reimburse one for a loss previously incurred. To indemnify is said to be synonymous with ‘to save harmless.’”John Bouvier, Bouvier's Law Dictionary and Concise Encyclopedia 1532 (Francis Rawle ed., 8th ed. 1914).
1916:
“to secure against loss; to compensate for loss.”James A. Ballentine, A Law Dictionary 234 (1916).
1925:
(1) “to protect fully and save harmless”; (2) “to make good”; or (3) “to reimburse another for some loss.”James John Lewis, The Collegiate Law Dictionary 173 (1925).
1934:
(1) “to secure or save harmless against loss or damage, of a specified character, which may happen in the future”; or (2) “to compensate or reimburse for a loss previously incurred. To indemnify is said to be synonymous with ‘to save harmless.’”William Edward Baldwin, Bouvier's Law Dictionary 535 (Baldwin's Century ed. 1934).
1970:
“to save harmless against loss or damage incurred by another; to reimburse another for such loss or damage.”Max Radin, Law Dictionary 161 (Lawrence G. Greene ed., 2d ed. 1970).
Now an aside. The noun indemnity had made its way into English dictionaries long before its verb sibling, from the early 17th century: John Bullokar defined it as

“escaping without damage or hurt.”

An English Expositor (1616) (s.v. indemnity).

And then Thomas Blount (pronounced /blәnt/ recorded it in 1661 and defined it as follows:
“eschewing of damage, escaping without hurt, damagelessness.”

Thomas Blount, Glossographia (2d ed. 1661) (s.v. indemnity).

Interestingly, Blount omitted all reference to indemnity and its cognates in his law dictionary nine years later: see Nomo-Lexicon: A Law-Dictionary (1670). Then, of course, came Elisha Coles in 1676:
“freedom from damage or danger, pardon.”

Elisha Coles, An English Dictionary (4th ed. 1676) (s.v. indemnity).

The evidence is overwhelming that indemnify and hold harmless are perfectly synonymous. The first is Latinate, the second Anglo-Saxon. And it would be possible to multiply 20th- and 21st-century authorities to this effect.

As with many doublets, triplets, and synonym-strings, arguments began to emerge among litigators about whether in fact some distinction did exist between the terms. After all, it had become a commonplace in legal drafting to use the phrase indemnify and hold harmless or indemnify and save harmless.

See, e.g., Hugh M. Spalding, An Encyclopaedia of Law and Forms 190 (1879) (“indemnify and save harmless”); Leonard A. Jones, Legal Forms: Contractual, Business and Conveyancing Forms 391 (Samuel G. Gifford ed., 7th ed. 1919) (“save, defend, keep harmless, and indemnify”); Clarence F. Birdseye, Encyclopaedia of General Business and Legal Forms 1581 (3d ed. 1924) (“protect, indemnify, and keep harmless”); Saul Gordon, Gordon's Standard Annotated Forms of Agreement 425 (1932) (“indemnify and hold harmless”). By the mid-20th century, transactional lawyers were accustomed to seeing the phrases constantly, and they seemed rarely to inquire into the precise meanings. By 2010, it was possible for a book on effective contract drafting to include a 23-page discussion of drafting indemnities, with several examples of indemnify and hold harmless, without even once raising the issue of the semantic contents of these words. See Robert A. Feldman & Raymond T. Nimmer, Drafting Effective Contracts: A Practitioner's Guide 5-113 to -136 (2010).

But the courts had already begun invoking the rule about reading nothing in a contract as “mere surplusage.” They were charged, as is commonly said, with

“giving effect to every word.”

That's not a bad rule when legal drafters abstain from larding their contracts with surplusage, but it's a horrible rule when they do.

And so, beginning in the late 19th century, there were many ahistorical holdings that indemnify isn't at all synonymous with hold harmless or save harmless. Without so much as a wink at the history of this terminology, courts said such things as this:

“There is a distinction between ‘indemnify’ and ‘save harmless,’ the latter phrase possessing the more extensive meaning.”

Weller v. Eames, 15 Minn. 461, 467 (1870).

And now in many states, courts and commentators have begun to call the indemnify language the “indemnity clause” and the hold harmless language the “exculpatory clause.” See Richard J. Lind, Express Contracts of Indemnity, 65 J. Kan. B. Ass'n 36, 36 (1996) (distinguishing between exculpatory clauses [hold harmless] and indemnity clauses [indemnify]); see also John Slavich, Environmental Issues Affecting Emerging Growth Companies, 31 Bull. Bus. Law Section of the State Bar of Texas 41, 65 (June 1994) (stating that it is “mistaken” to treat indemnity and hold harmless synonymously).
Take one state as an example: Florida. There the practice just described has emerged in full flower. The indemnify language is the “indemnity clause” (covering liabilities to third parties) and the hold harmless language is the “exculpatory clause” (releasing first-party liability—that is, so that the hold harmless phrase releases a wrongdoing indemnitee where indemnify would not have this effect). See O'Connell v. Walt Disney World Co., 413 So.2d 444, 446 (Fla. Dist. Ct. App. 1982); Van Tuyn v. Zurich Am. Ins. Co., 447 So.2d 318, 320 (Fla. Dist. Ct. App. 1984); Kitchens of the Oceans, Inc. v. McGladney & Pullen, LLP, 832 So.2d 270, 272 (Fla. Dist. Ct. App. 2002).

And then there's just explicit judicial nonsense, this bit being from California: “Are the words ‘indemnify’ and ‘hold harmless’ synonymous? No. One is offensive and the other is defensive—even though both contemplate third-liability situations. ‘Indemnify’ is an offensive right—a sword—allowing an indemnitee to seek indemnification. ‘Hold harmless’ is defensive: The right not to be bothered by the other party itself seeking indemnification.” Queen Villas Homeowners Ass'n v. TCB Prop. Mgmt., 56 Cal. Rptr. 3d 528, 534 (Ct. App. 2007).

True, the majority rule is that indemnify and hold harmless is a unitary phrase that means nothing more than indemnify alone. See, e.g., Brentnal v. Holmes, 1 Root (Conn.) 291, 1 Am. Dec. 44 (1791); Long v. McAllister-Long, 221 S.W.3d 1, 10 (Tenn. Ct. App. 2006) (stating that the term hold harmless is synonymous with the word indemnify, so that a hold-harmless provision in a divorce agreement is nothing more nor less than an indemnity); Loscher v. Hudson, 182 P.3d 25, 33 (Kan. Ct. App. 2008) (“‘Hold harmless’ is synonymous with ‘indemnify.’”). Perhaps the best statement on point is that of Vice Chancellor Strine of Delaware, who was presented with an argument to distinguish the terms: “The terms ‘indemnify’ and ‘hold harmless’ have a long history of joint use throughout the lexicon of Anglo-American legal practice. The phrase ‘indemnify and hold harmless’ appears in countless types of contracts in varying contexts. The plain fact is that lawyers have become so accustomed to using the phrase ‘indemnify and hold harmless’ that it is often almost second nature for the drafter of a contract to include both phrases in referring to a single indemnification right.” Majkowski v. American Imaging Mgmt. Servs., LLC, 913 A.2d 572, 588 (Del. Ch. 2006). He added that transactional lawyers everywhere would be surprised to learn that they had unwittingly created additional rights by tacking and hold harmless onto indemnify. Id.

There has been a welter of needless litigation over the doublet, as litigants have wasted countless dollars fighting over imaginary differences between the words—differences that have no historical justification. And now there is bad law in many states—bad law that is well ensconced. There's an object lesson for all of us: know legal language, its history, and its development; research it when necessary (the literature is startlingly easy to find); and make considered drafting decisions that avoid extra words that don't convey extra meaning—because some court, somewhere, some day, will find extra meaning where there isn't any.
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