Damages,Remedy 及Indemnity三者的区别

 

摘要：Damages强调金钱等损害赔偿，Remedy强调损害赔偿的救济方式，Indemnity强调担保和赔偿两方面。

 

英文合同中经常出现damages,remedy 和indemnity三个词，这三个词都与赔偿有关，但因为中外法律体系和法律词汇的差异，大家经常会将此三者混淆。以下对三者的区别做简要比较：

 

1.根据韦伯法律词典，Damages指the moneyawarded to a party in a civil suit as reparation for the loss or injury forwhich another is liable。尽管法律词典目前仍将damages严格定义为金钱赔偿，但事实上damages 的种类很多，但最常见的有compensatory damages， punitive damages， nominal damages，以及 aggravateddamages四种，其中compensatorydamages，punitivedamages 和 nominaldamages均为金钱补偿（pecuniarydamages），即均属于赔偿金范畴，只有 aggravateddamages为非金钱补偿（non-pecuniarydamages），即不属于赔偿金。

compensatory damages为补偿性赔偿金，指根据实际损失的多少予以的赔偿。

punitive damages 为惩罚性赔偿金，指因过错人所犯过失恶劣等故而处的超出实际损失数量之赔偿，一般用于侵权而非违约之诉。

nominal damages为象征性赔偿金，指证明被告有过错但却无法证明实际损失时所处的数额很少的一种赔偿金。

aggravated damages 则为加重的损害赔偿，指如受害人受伤害太深等无法用金钱补偿时所处的除金钱之外的补偿，其中包括如赔礼道歉、合同的实际履行等等。

另外，值得注意的是damages单数damage，是指loss or harmresulting from injury to person, property, or reputation，即对人身、财产、名誉等造成的损失或损害，该词单复数意义迥异。

 

2.根据韦伯法律词典，Remedy指the means toenforce a right or to prevent or obtain redress for a wrong: the relief(as  damages, restitution, specific performance, or an injunction) thatmay be given or ordered by a court or other tribunal for a wrong。remedy通常指的是一方违约时，他方得主张之损害赔偿方法。着重于救济的方式和方法，包括金钱损害赔偿monetary damages、不当得利的返还restitution、衡平救济及抗辩equitable damages anddefense（如强制执行令、解除合同等）等救济方式。   

 

3. 根据韦伯法律词典，Indemnity指(a) securityagainst hurt, loss, or damage; (b) exemption from incurred penalties orliabilities。可见，Indemnity其实含有担保及赔偿的双重意义，亦即，一方担保不使他方受有损害，他方若受有损害则由该一方负责赔偿(或补偿)。常见的indemnity条款可参见本微信公众号其他文章担保赔偿条款样本。

 

 

引申:Indemnity and Compensation区别

 

What is the difference between Indemnity and Compensation?

The difference between indemnity and compensation is a bit confusing for the peopleoutside the legal field. Indemnity and compensation are perhaps uncommon andunfamiliar for those of us not acquainted with the legal field. However, forlegal experts, companies and those in business, theyrepresent two concepts that frequently arise in contracts andcontractual disputes. A glance at the dictionary definition of bothterms does not help in clarifying the distinction between the two. Prima facie, we know that Compensation refers to some formof relief or reward given to a person when they suffer damage or loss.Likewise, Indemnity has been interpreted by some sources as a promise orundertaking to pay for the costs of a particular loss or injury. Thus,they relatively appear to have similar meanings. A careful examination of theterms in a legal context is required to fully identify and understand thedifference between the two, indemnity and compensation.

 

What isIndemnity?

Ingeneral, English dictionaries define the term Indemnity as a type ofprotection or security against a liability, loss orfinancial burden. This is in addition to its interpretation as an undertakingor promise to pay for a damage or loss. These interpretations tend to createsome confusion. The goal, however, is to understand the legal connotation ofthe term. Therefore, from a legal perspective,Indemnity is traditionally defined as an exemption or exclusion from aliability or penalty incurred by another person orcompany. Add to this definition, the above interpretation whichidentifies Indemnity as a form of protection or security against loss ordamage. Simply put,legally, Indemnity is a form of exemption from and/or security againstliability, injury, loss or financial burden. Let’s understand this definitionthrough an example.

 

ABCDesigns enters into a contract for service with XYZ Material for the supply offabric. In the contract or agreement, there is a clause that states that ABCDesigns has Indemnity or is Indemnified from all liabilities, damages, lossesor penalties incurred by XYZ Material. Thus, ABC Designs is exempted fromand/or protected against all losses, liabilities or damage that may be incurredby XYZ Material. If a third party affected by XYZ’s actions wants to claimrelief for a loss or damage, such a party cannot claim relief from ABC due tothe clause. This is known as an ‘Indemnity Clause’.

 

Anindemnity clause can protect a company from a liability

 

What isCompensation?

WhileCompensation can have a different interpretation in a general context, in law,it is typically defined as a form of relief given to a person who suffereda loss or injury. It is formally referred to as the actof making good a loss or making amends for an injury suffered. The reliefgranted is a payment. Thus, Compensation is typically an award of a monetarynature.Compensation is granted by a court to parties whohave suffered a loss, injury or damage as a result of another person’s wrongfulactions. A popular example of Compensation is theremedy of Damages grantedby a court in civil actions. In simple terms, Damages is a form offinancial Compensation sought by an aggrieved party for a particular loss orinjury to his/her person, property or rights as a result of the wrongful act ofanother. Compensation in legal actions is typically granted for loss of earnings,economic loss, property damages and medical expenses. The party who committedthe wrong is usually ordered to provide financial relief to the aggrievedparty. Utilizing the example given above, RST Fashions (an aggrieved thirdparty) cannot claim Compensation from ABC Designs for the loss they suffered asa result of XYZ’s actions due to the Indemnity Clause that protects ABCDesigns.

 

Aperson who has got damaged goods can ask for a compensation

 

What is thedifference between Indemnity and Compensation?

•Indemnity refers to a form of exemption from and/or security against certainlosses, liabilities or penalties.

•Compensation is a form of payment given to a party, typically the plaintiff, for the loss,injury or damage he/she suffered as a result of the defendant’s actions.

•Compensation is a form of relief given to an injured party while Indemnity is aform of immunity protecting a party from liability or legal action.

•Thus, an aggrieved party cannot claim Compensation from a party that hasIndemnity or is legally indemnified.

 

ADDITIONALMATERIAL

What is thedifference between loss and damages?

What is thedifference between damage and damages?

What is thedifference between punitive damages and restitution damamges?

Is there a cleardistinction between destruction and damage?

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