Indemnification

If you have a receives subpoena in which your counterparty blames you for something, it may be that you in turn blame a third party. If you are found guilty, you want that third party to compensate you. Consider the situation where you buy a house but cannot get the mortgage. You want to rescind, but you have no rejection from the bank because your mortgage advisor did not submit an application at all. You cannot then rescind the purchase agreement. Instead, the seller summons you and claims the contractual penalty. In such a case, indemnification may be a solution. You can call your mortgage broker in indemnity. If you are then ordered to pay the penalty to the seller, the mortgage broker may have to indemnify you again.

What is indemnification?

Indemnification is the summoning of a third party to a legal process in order for that third party to participate in the dispute. If the defendant believes that a third party should be involved in the dispute, the defendant claims that the third party should be called to indemnification. This is done through an incidental claim. You are then given the option of suing the third party. The third party then becomes compulsorily involved in the dispute. The summoned third party is called the guarantor and the summoning defendant is called the secured. With the summons, a second proceeding arises at the same time as the main action.

Why file action for indemnification?

The defendant may thus involve a third party through an action for indemnification in a subpoena proceedings. The reason to do this is in the case where a third party plays such a role in the case that it must be involved in the process. This is the case, for example, if the injury - which is the subject of the compensation claim - (partly) caused by the third party or, on the contrary, should be paid by another. Another example is that in an action for performance, the defendant sues a third party in indemnity because it has the failure to perform has caused. The plaintiff's claim can thus be recovered directly from the third party (guarantor) by the defendant.

How can you sue for indemnification?

A claim for indemnification is an incidental claim. Incidental claims are decided first before the main action proceeds. An action for indemnification is brought by means of a writ of summons calling the guarantor. In principle, the claim must be instituted immediately after the summons in the main action, and thus before a substantive defense is filed.

What are the implications of indemnification?

If a claim for indemnification is granted and the guarantor is called in indemnification, a second proceeding is started at the same time as the main case. This is called case in indemnity. Although there is one judgment can be pointed out, something established in one case does not automatically apply to the other hall. The guarantor can also take over the main case from the secured party in certain cases. The main effect of indemnification is that the guarantor can ultimately be sued for what the guaranteed one was sued for in the first instance. Then the secured becomes the indemnified. It is also possible that, in the event the guarantor is judged but has no recourse, the guarantor will have to bear the costs.

Rightly summoned but is it because of someone else?

If you have received a summons and the claim is (possibly) justified, and if you can blame it on a third party, then indemnification may be a possibility. You must then be able to prove that all or part of your conviction is due to that third party. Do you think someone should be involved in your lawsuit or be called on indemnification? If so, contact the trial lawyer at Lexys Lawyers.