How to Track an Incidental-Damages Exclusion

How to track an incidental-damages exclusion is a recoverable-damages ledger from signing through claim notices, not a consequential-damages exclusion tab and not a punitive-damages exclusion tab. For each signed deal, log whether incidental damages are expressly excluded or the agreement is silent, whether an exception for damages actually paid to a third party sits inside that exclusion, how the row differs from punitive and consequential exclusions, how it overlaps with damage-mitigation-tracking, whether a 2025 Study print is in play, and status. Raziel's consequential damages exclusion tracking page is the consequential limb (see also punitive-damages-exclusion-tracking). This page is the incidental-damages exclusion.

This is not legal, tax, insurance, or investment advice. Raziel does not provide it. Copy the incidental-damages exclusion sentence from the PDF. Do not invent what the remaining incidental deals were after 19% expressly excluded and 77% silent, and do not paste 69% (punitive) or 23% (consequential) onto this incidental row.

What this ledger is (and is not)

An incidental-damages exclusion is a sentence in the indemnification (or remedies) article that expressly takes incidental damages out of recoverable losses, or stays silent on that category. Goulston and Storrs, 2025 ABA Private Target M&A Deal Points Study: What's Market? (May 6, 2026), recapping the ABA 2025 Study (139 agreements executed and closed in 2024 and the first quarter of 2025), prints under Types of Damages Recoverable: "(i) incidental damages were expressly excluded in 19% of the deals and the agreements were silent in 77% of deals, (ii) punitive damages were excluded in 69% of deals and the agreements were silent in 31% of deals, and (iii) consequential damages were expressly excluded in 23% of deals and the agreements were silent in 71% of deals. Of note, however, is that within the category of 'expressly excluded' the Study includes provisions that have an exception from the exclusion for damages actually paid to a third party." Keep 19% / 77% on this incidental row. Keep 69% / 31% on punitive-damages-exclusion-tracking. Keep 23% / 71% on consequential-damages-exclusion-tracking. 19 plus 77 is 96. Do not invent what the remaining incidental deals were. The ABA 2025 US sample frame (K&L / BLT) is 139 agreements, $25M to $900M, 42 simultaneous / 97 deferred. Those are study snapshots. Your indemnification article controls.

This ledger is not consequential-damages-exclusion-tracking (the consequential limb), not punitive-damages-exclusion-tracking (the punitive limb), and not damage-mitigation-tracking (the duty to lessen loss). A third-party-pay exception inside an incidental exclusion is a qualifier on this row, not a rewrite of those pages.

Seven columns on one row

Open one row per signed deal. Attach the indemnification article and pointers to consequential, punitive, and mitigation.

• Present or silent. Incidental damages expressly excluded, or silent. Goulston May 6, 2026 recapping ABA 2025: expressly excluded in 19% of deals; silent in 77%. Copy presence from your PDF. Do not invent the remaining share after 19 plus 77.

• Third-party-pay exception. Goulston: within 'expressly excluded' the Study includes provisions that have an exception from the exclusion for damages actually paid to a third party. Copy whether your exclusion has that exception, has no exception, or is silent. Do not invent a Study percentage for the exception limb.

• Incidental vs other excluded categories. Copy the listed excluded categories from the PDF. Do not paste 69% (punitive excluded) or 23% (consequential expressly excluded) onto this incidental row. Those prints belong on their own pages.

• Punitive pointer. Pointer only. Goulston 2025: punitive damages excluded in 69%; silent in 31%. Keep those figures on punitive-damages-exclusion-tracking. Mark punitive excluded / silent / unknown. Do not rewrite that page.

• Consequential pointer. Pointer only. Goulston 2025: consequential damages expressly excluded in 23%; silent in 71%. Keep those figures on consequential-damages-exclusion-tracking. Mark consequential excluded / silent / unknown.

• Overlap pointer to damage-mitigation-tracking. Pointer only. Mitigation is the duty to lessen loss. This row is whether incidental damages are carved out of recoverable losses. Goulston 2025 also prints a damage-mitigation provision in 56% of Study deals (from a 2023 high of 69%). Keep 56% on the mitigation page.

• Status. Copied, claim noticed, exclusion argued, settled, or closed. When a claim cites incidental damages, book the date and whether the fight is the exclusion, the third-party-pay exception, or silence.

Copy the clause, not the study percentage

Do not paste 19% onto a silent incidental paper. Do not invent the remaining incidental share after 19% excluded and 77% silent. Do not paste 69% (punitive) or 23% (consequential) onto this row. Do not treat a third-party-pay exception as if it were a separate Study percentage. Do not fold this row into consequential-damages-exclusion-tracking, punitive-damages-exclusion-tracking, or damage-mitigation-tracking. Consequential and punitive are other excluded categories. Mitigation is the duty to lessen loss. This row is whether incidental damages are expressly excluded, and whether that exclusion has a third-party-pay exception.

When a post-close claim arrives, log whether the PDF excluded incidental damages, whether a third-party-pay exception sat inside that exclusion, and whether punitive or consequential sentences sat nearby. That trail is what indemnity counsel will ask for first.

When the ledger holds

The row holds if the seven cells are copied from the PDFs (or marked missing). It fails when you invent an incidental exclusion, invent the remaining share after 19% and 77%, paste 69% or 23% onto this row, or treat the consequential tab as if it answered the incidental question. Raziel's alternative asset dashboard is where the incidental-exclusion sentence, the third-party-pay flag, and any claim notice should sit together. Raziel does not decide your damages-exclusion dispute. Copy the seven columns.