INGENIEUR
●●
whilst it is an essential feature of an
Insurance Contract being a contract
uberrimae fidei (ie, of utmost good faith),
this is not so for a Contract of Guarantee or
even for a Contract of Indemnity (other than
the Insurance Contract).17
Terminology
The subject of indemnification is further
complicated by the lack of consistency in the
terminology employed. Hence, one should be
mindful of the following:
for Indemnity contracts, the Malaysian Contracts
Act 1950 vide section 77, describes the person
providing the indemnity as the ‘promisor’ and
the person who receives the indemnity as the
‘promisee’;
●●
●●
●●
in the Dictionary of Construction Terms,18
the party giving the indemnity is called
the ‘indemnitor’ and the party receiving
the indemnity is termed the ‘indemnitee’.
A similar terminology is adopted in Black’s
Law Dictionary19 except that it also calls the
‘indemnitor’ an ‘indemnifier’;
the local conditions of contract as adverted
to in this portion of the write-up do not
adopt any particular labels; confining
these merely to the parties themselves, ie
‘contractor’ and ‘employer’; and
in view of the above, though the actual
terminology may vary but its purpose and
effect should be construed in relation to the
particular reference or drafting employed.
Contractual Provisions in Standard Forms
Most, if not all the local standard forms have
incorporated express provisions pertaining to
indemnity requirements. Often accompanying the
insurance clauses, these are usually confused
with the latter although their scope, obligations
and procedural requirements are different in many
17
18
19
20
6
66
See Lee Mei Pheng Law of Guarantees p 15.
By Fenwick Elliott LLP p 143.
(9th Edn) p 837.
See paras [2.16]–[2.22] above.
VOL
- MARCH 2016
VOL65
55JANUARY
JUNE 2013
respects. Some of these provisions have been
included in the preceding section on Insurance20
and therefore will not be repeated here for the
sake brevity. Others are reproduced here below
for ease of reference.
PAM Contract 2006 (With Quantities):
●●
Clause 18.0: Injury To Person Or Loss And/
Or Damage Of Property And Indemnity To
Employer
PAM Contract 2006 (Without Quantities):
●●
Clause 18.0: Injury To Person Or Loss And/
Or Damage Of Property And Indemnity To
Employer
PAM Sub-Contract 2006:
●●
Clause 19.0: Injury To Person Or Loss And/
Or Damage Of Property And Indemnity To
Contractor
JKR Forms 203 & 203A (Rev 1/2010):
●●
Clause 14.0: Indemnity In Respect Of
Personal Injuries And Damage To Property
PWD Form DB (Rev 1/2010):
●●
Clause 38.0: Government’s Indemnity In
Respect Of Injury To Persons And Damage
To Property
JKR Sarawak Form of Contract (2006):
●●
Clause 24.0: Indemnity For Injury To
Persons And Property Damage
Form CIDB.B(NSC)/2002:
●●
Clause 23.0: Third Party Liabilities and
Indemnities
CIDB Form (2000 Edition):
●●
Clause 35.0: Indemnity Provision
Indemnity Clauses: Purpose
Owing to the nature and complexity of engineering
and construction works, there is a real possibility
of claims arising pursuant to some act, omission,