Loan agreements rely upon the existence of allowable indemnity for their justification and validity in the joint tortfeasor situation. If indemnity is allowed in a given situation, objections to the use of a loan agreement must be rejected. If, however, a suit for indemnity is not allowed between two joint tortfeasors, loan agreements should not allow such a result indirectly. Therefore, it may be concluded that the use of loan agreements in Nebraska in the joint tortfeasor situation will only be upheld when a suit for indemnification would also be upheld. Whether loan agreements are held to be valid or invalid in any given situation should not, however, preclude an injured plaintiff from receiving full compensation for his damages. In applying pro tanto reduction, the court in Tober v. Hampton justifiably held that any amount received under the invalid loan agreement should be deducted from any judgment rendered in a suit against the other joint tortfeasor. The court ruled inconsistently, though, in requiring the plaintiffs to pay back any money received in such a suit to the loaning joint tortfeasor. Since the loan agreement was held invalid, no repayment under it should have been required. As a result of this inconsistent combination of pro tanto reduction and mandatory repayment under an invalid loan agreement, the court's decision that the plaintiffs were not the real parties in interest seems erroneous.
Stephen G. Olson,
Joint Tortfeasors—Validity of Loan Agreements and Use of Pro Tanto Bar—Tober v. Hampton, 178 Neb. 858, 136 N.W.2d 194 (1965),
45 Neb. L. Rev. 790
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