www.ambar.org/rpte
November/December 2013 Vol. 27 No. 6
A Publication of the Real Property, Trust and Estate Law Section
American Bar Association
Evolution
of the
Enforceability
of Arbitration
Clauses
in Estate
Planning
The Last Word
How Do I Release You?
Let Me Count the Ways
Releases and indemnification agreements provide perfect examples of
situations that can and should make
all of us neurotic. These provisions
are strictly construed against the
indemnitee by courts because judges
don’t like to impose liability on one
party for damage not really caused
by that party. See 41 Am. Jur. 2d
Indemnity § 14 (2013). And they certainly don’t like to let a party that has
caused damage to get away without
paying for it. When we draft agreements in which one party assumes
responsibility for an area of potential liability, we need to set out clearly
the reason for the division of liability,
then move on to particular aspects
of the assuming party’s obligations:
(1) release and waiver, (2) indemnity and defense, and perhaps (3)
reimbursement.
Even a simple release and indemnity between a residential landlord
and its tenant may need to be both
broad and specific. Examples may be
needed. But the Latin phrase expressio
unius est exclusio alterius—or, in English, including one thing excludes the
others—shows the danger of including specifics in your agreement. See
Black’s Law Dictionary 602 (7th ed.
1999). When a drafting concern is
encapsulated in a Latin phrase that
ordinary lawyers actually recognize,
you know that the concern is longstanding and serious.
Tenant leases an apartment from
Landlord and has a pet ferret, Rosebud. Rosebud is likely to cause
problems in the apartment and in
the complex (have you ever smelled
The Last Word Editor: Marie Antoinette
Moore, Sher Garner Cahill Richter Klein
& Hilbert, L.L.C., 909 Poydras Street, Suite
2800, New Orleans, LA 70112, (504) 2992100.
64
n
a ferret?), and the parties wish to
craft an agreement that will let Tenant keep his beloved Rosebud in his
dwelling. Landlord’s lawyer is likely
to start the parties’ agreement with a
general explanation: “Landlord permits Tenant to keep his pet ferret,
Rosebud, in his apartment, but only
because Tenant agrees to be responsible for Rosebud and all damage, loss,
and liability arising from Rosebud or
her presence.” This will tell the court
the reason for the agreement and
may be needed if there’s a dispute.
Landlord’s lawyer then should
include Tenant’s release of Landlord
and waiver of claims: “Tenant also
releases Landlord from and waives
all claims, liability, and obligations
that Landlord may have arising from
Rosebud, including, but not limited
to, the damage she may cause to the
apartment.” Without this release and
waiver, a court might otherwise conclude that Landlord must perform
repairs to keep the apartment habitable even if the damage is caused by
Rosebud.
Is this enough? Landlord also lives
in the complex and owns a dachshund, Tony (Landlord is a Sopranos
fan). If Landlord lets Tony have the
run of the complex (this is arguably
negligence by Landlord) and Tony
gets a whiff of Rosebud, there may be
a tussle, and Rosebud may be injured.
So Landlord’s lawyer should specify that Tenant’s waiver and release
encompasses loss, damage, and
injury arising from Rosebud, even if
caused by Landlord’s negligence.
Should Landlord’s lawyer use the
phrase but not limited to? My regular (nonlegal) dictionary tells me that
include means “[t]o have or take in as
a part or member.” Webster’s II New
College Dictionary 560 (1995). Fowler,
who deals in ordinary English usage,
opines that comprise denotes a closed
set, whereas “[w]ith include, there is
no presumption (though it is often
the fact) that all or even most of the
components are mentioned.” Fowler’s Modern English Usage 275 (2d ed.
1965). But Landlord’s lawyer cannot count on a court to apply these
ordinary English rules. Prof. Garner cautions that the phrases but not
limited to and without limitation “are
often essential” to defeat the old
Latin construction rule that expressing one thing excludes another.
Garner, A Dictionary of Modern Legal
Usage 432 (2d ed. 1995).
To cover the claims that may be
asserted by other tenants in the complex, Landlord’s lawyer should add,
“Tenant also agrees to indemnify and
defend Landlord from and against
all claims arising out of Rosebud or
her presence.” Of course, Landlord’s
lawyer wants to be sure that this obligation encompasses claims arising in
the future from Rosebud’s characteristic odor as well as her activities, so
Landlord’s lawyer should add “present and future” and “including, but
not limited to, all claims, loss, and
damage arising out of Rosebud’s
odor, her presence in the apartment,
or her entry into any other part of the
complex.” Of course, this language
introduces the pesky specifics.
Finally, what about damage to
Landlord’s property? Landlord’s lawyer should include an obligation by
Tenant to reimburse Landlord for all
damage, including, without limitation, damage to the apartment, the
complex, and perhaps Tony, caused
by poor Rosebud.
Now, and so long as the legislature has not voided by law some of
these agreements, Landlord and Tenant should have a bargain that will
permit Rosebud and Tony to both
inhabit the same complex. If there’s a
replacement ferret, however, . . . .n
Published in Probate & Property, Volume 27, No 6 © 2013 by the American Bar Association. Reproduced with permission.
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