The architecture that determines what a post-closing claim is actually worth.
Esshaki Legal Media TeamCurrent as of June 2026
Indemnity is limited by a set of interlocking provisions, and their interaction
determines recovery.
Survival. How long representations remain claimable. General
representations commonly twelve to twenty-four months; fundamental
representations — organization, authority, capitalization, title — for a longer
period or the limitation period; tax and environmental on their own schedule.
Survival provisions are generally enforced as contractual limitation periods.
De minimis. Individual claims below a threshold do not count at all.
Basket. An aggregate threshold before any claim is payable. A deductible
basket pays only the excess; a tipping basket pays from the first dollar once
crossed. The difference is substantial and is sometimes agreed without either
side noticing which they chose.
Cap. A ceiling on aggregate indemnity, commonly a percentage of the purchase
price for general representations, with fundamental representations capped at
the purchase price and fraud uncapped.
Materiality scrape. Disregards materiality qualifiers for the purpose of
determining breach, damages, or both. A double scrape is buyer-favorable and
increases claim volume, which is why baskets and scrapes are negotiated
together.
Exclusive remedy, subject to fraud, injunctive relief and the price
adjustment.