The Ingenieur Vol. 65 Water Power | Page 68

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,