Indemnity, Liability, Insolvency

24 Pages Posted: 3 Jun 2003  

David Gray Carlson

Yeshiva University - Benjamin N. Cardozo School of Law

Abstract

Suppose A has a claim against B. B has a claim over against C. B, however, is insolvent and has not actually paid A. B's only asset is, in fact, B v C. To what extent can C claim that B v C is valueless - that B was not damaged because B was too broke to pay A?

This paper argues that the fundamental legal distinction between indemnity and liability is beginning to dissolve, because B can always pay A (and thereby give value to B v C) by borrowing the amount B owes and using B v C as collateral for the loan. This very possibility tends to render the distinction between indemnity and liability obsolete.

Keywords: indemnity, insurance, liability, damages, insolvency, bankruptcy discharge

Suggested Citation

Carlson, David Gray, Indemnity, Liability, Insolvency. Cardozo Law School, Public Law Research Paper No. 68. Available at SSRN: https://ssrn.com/abstract=413622 or http://dx.doi.org/10.2139/ssrn.413622

David Gray Carlson (Contact Author)

Yeshiva University - Benjamin N. Cardozo School of Law ( email )

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New York, NY 10003
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