SA law recognises the validity of indemnity clauses, but there is a distinction between an indemnity form and a disclaimer noticeThe recent tragic drowning of a Parktown Boys’ High School pupil on a school adventure outing has highlighted the public’s need to understand the purpose and significance of indemnity forms, which are used often, in a range of circumstances, from parking garages to adventure sports.
Indemnity clauses vary widely. Some contain a simple statement that “liability is excluded”, while others are more formal agreements, exempting the service provider from specified consequences, if they arise. There are also forms that indemnify the provider of the service against a claim by a third party arising from the service provided.
Whether negligence negates the enforceability of an indemnity contract will depend on the circumstances. In theory it is still possible that liability for some types of conduct may be excluded by agreement between persons — even if that conduct turns out to be negligent in the circumstances.
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