Construction of Contractual Indemnities – Out with the Old, In with the New

Journal of Contract Law, Vol. 24, No. 2, pp. 182-195, 2008

Sydney Law School Research Paper No. 10/133

14 Pages Posted: 2 Dec 2010  

Wayne Courtney

The University of Sydney Law School

Date Written: November 30, 2010

Abstract

Indemnities can significantly alter the allocation of risk and responsibility in commercial contracts. Should they be the subject of different, and more stringent, principles of construction? Despite a broader trend towards commercial construction, the High Court of Australia in Andar Transport Pty Ltd v. Brambles Ltd appeared to indicate that indemnities, like guarantees, ought to be construed strictly and, in cases of ambiguity, against the indemnifying party. This article considers the effect of Andar and subsequent cases. It also considers whether, in Australia, the Canada SS rules may be relied upon in construing indemnities.

Keywords: Contract, Indemnity, Indemnities, Construction, Canada SS rules

JEL Classification: K10, K12, K30

Suggested Citation

Courtney, Wayne, Construction of Contractual Indemnities – Out with the Old, In with the New (November 30, 2010). Journal of Contract Law, Vol. 24, No. 2, pp. 182-195, 2008; Sydney Law School Research Paper No. 10/133. Available at SSRN: https://ssrn.com/abstract=1718115

Wayne Courtney (Contact Author)

The University of Sydney Law School ( email )

New Law Building, F10
The University of Sydney
Sydney, NSW 2006
Australia

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