How is a release different from an indemnity provision?

A release and an indemnity have characteristics distinct from each other.  A release extinguishes a claim or cause of action as would a prior judgment and is an absolute bar to any suit on the released matter.  A release is designated as an affirmative defense and must be pled.  Typical release language is “release, discharge, relinquish.”  Releases are often present in compromise settlement agreements, but can also exist in sales transactions. 

An indemnity arises from a promise by the indemnitor to safeguard or hold harmless against existing or future loss, liability, or both.  Unlike a release, which suppresses a cause of action, an indemnity creates a potential cause of action between the indemnitee and the indemnitor.  Typical indemnity language is “indemnify, save, protect, save/hold harmless.” 

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