agency

Question 1

agency

Answer 1

a fiduciary relationship in which the agent acts on the principals behalf and the principle consents

consent req by both parties

agent must act for the benefit of principal

control, at minimum, equates to the ability to delegate a task to

Question 2

creation of agency

Answer 2

principal: contractual capccity
agent: minimum capacity

writing not req unless agency over 1 year

Question 3

modes of creating agent relationship

Answer 3

parties express agreement (actual authority)

holding out as agent relationship to others BY the principal

Question 4

fiduciary duties of an agent

Answer 4

loyalty
care
obedience

Question 5

duty of care

Answer 5

carry out responsibilities with reasonable care

Question 6

duty of loyalty

Answer 6

undivdied loyalty to the principle

Question 7

duty of obedience

Answer 7

obey all reasonable instructions of the principal

Question 8

remedies for breach of fiduciary duty

Answer 8

contract actions
tort
ill gotten profit
equitiable actions for an accounting
imposition of a constructive trust (transfer unnust enrichment property to a trust)

Question 9

principals duty to the agent

Answer 9

not fiduciary

contract
reasonable compensation
reimbursement for expenses

Question 10

agent remedies

Answer 10

contractual

Question 11

actual authority

Answer 11

Actual authority is authority that the agent reasonably
believes they possess based on the principal’s dealings with
them

Actual
authority may be express or implied.

Question 12

express and implied authority

Answer 12

express:
- oral or written
- binding even if given by mistake or misrepresentation

implied: reasonable belief by the agent tas a result of the principals words/actions:

Incidental to express authority
• Arising out of custom known to the agent
• Resulting from prior acquiescence by the principal;
• To take emergency measures
• To delegate authority in cases of ministerial acts,
where circumstances require, where performance
is impossible without delegation, or where delegation
is customary

Question 13

termination of actual authority

Answer 13

happening of event
lapse of a reasonable time
a substantial change in circumstances such that authority inferred to be done
breach of fidciary duty***
either parties unilateral termination
operation of law

Question 14

apparent authority

Answer 14

Apparent authority exists when the principal “holds out”
another as possessing authority and based on this holding
out, a third party is reasonably led to believe that authority
exists

main thing: apparent authority exists when reasonable belief of third party coupled with holding out by principal

Question 15

types of apparent authority

Answer 15

agent exceeds actual authority

prior act the principal knows the third party is aware of

title of the agent (as given by the principal) indicates to a third party they have authority

Question 16

what about imposters

Answer 16

can bind the principal IF the principal negligently allows the imposter to pretend to be agent

Question 17

ratification

Answer 17

an agent acts without authroirty, and a principal subsequently validates that act

express or implied: accepts benefit of a contract

Question 18

req for ratification

Answer 18

knowledge of ALL material facts AND

accept entire transaction AND

have capacity at the time of acceptance

Question 19

can an agent be liable to a third party?

Answer 19

yes, if the agent entered agreement AND existence and identity of principal are not disclosed

if agent has authority to enter this agreement, BOTH the agent and the principal can be held liable

Question 20

tort laibility

Answer 20

liable for conduct of employee, not independent contractor

Question 21

employee vs independent contractor test

Answer 21

right to control test:

degree of skill needed

whos tools/facilities used

period of employment

basis of compensation

business purpose

if person has a distinct business

characterization and understanign of parties

Question 22

scope of emplyment and frolic and detour

Answer 22

if during employment time, conduct of the kind agent hired to perform, and benfit employer

if a small deviation: then still liability (detour)

if substantial departure from employment, frolic, no liability

Question 23

are employers liable for agents intentional torts

Answer 23

no, unless within scope of employment (security guard)

Question 24

If no respondeat superior, then can apparent authority still work for torts

Answer 24

yes, if the apparent authoirty

1. enable the agent to commit tort OR
2. conceal tort commission