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JGM
JGM, Solicitor
Category: Scots Law
Satisfied Customers: 11277
Experience:  30 years as a practising solicitor.
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I am revising a Scottish commercial lease on behalf of the

Resolved Question:

I am revising a Scottish commercial lease on behalf of the landlord. The wording of an indemnity by the tenant is causing me difficulty. The indemnity is worded as follows:-
"The tenant shall keep the landlord fully indemnified against all liabilities, damages, penalties,losses,costs, expenses, actions, demands,proceedings, claims and charges suffered or incurred by the landlord arising directly or indirectly out of:
1. any act, omission or negligence of the tenant or any other person at the property with the tenant's authority; or
2. use of the premises by the tenant or any other person at the property with the tenant's authority; or
3. the state of repair of the property; or
4. any breach by the tenant of the obligations of the lease."
My question is, should the word "or" be used at the end of sub-paragraphs 1, 2 and 3 above? My concern is that by using "or" if a loss or action (for example) arise out of something which can be categorised as both a breach of the lease and the state of repair of the property, that that loss or action won't be covered by the indemnity because sub-paragraphs 3 and 4 are alternatives. On the other hand I didn't think it was appropriate to remove the "or" from the end of sub-paragraphs 1, 2 and 3 and replace them with an "and" at the end of sub-paragraph 3 because that would imply that the loss or action (for example) suffered by the landlord had to arise directly or indirectly out of the matters mentioned in all of of sub-paragraphs 1, 2,3 and 4 in order to be covered by the indemnity.
What I need is any and all liabilities etc suffered or incurred by the landlord to be covered by the indemnity whether they arise out of the matters covered in just one of sub-paragraphs 1 to 4, or out of matters covered in several of the sub-paragraphs. I am just concerned that the use "or" at the end of the sub-paragraphs may not achieve that result.
I hope my explanation is understandable. Any guidance would be appreciated. Thank you.
Submitted: 1 year ago.
Category: Scots Law
Expert:  JGM replied 1 year ago.
Thank you for your question.
It is perfectly acceptable to use the word "or". If there is a breach of more than one of the four alternatives then the breached are simply accumulated into one action. You would never use the word "and" for the reasons you state but you are overthinking the situation as regards "or".
I hope this helps. Please leave a positive response so that I am credited for my time.
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