AGENCY

Question 1

AGENCY - CREATION
Relationship that ____when one _____ (_____) m_____ an ______ that another (_____) shall act on his _____ and under his ______, and the _____ agrees to so _____.

Answer 1

AGENCY - CREATION
Relationship that arises when one person (principal) manifests an intention that another (agent) shall act on his behalf and under his control, and the agent agrees to so act.

Question 2

AGENCY 
Formation: ABC: 
A\_\_\_\_\_
B\_\_\_\_\_, and 
C\_\_\_\_\_

Answer 2

AGENCY 
Formation: ABC: 
Assent, 
Benefit (of Principal), and 
Control

Question 3

AGENCY 
Formation: ABC: 
A\_\_\_\_ (\_\_\_\_\_\_ agreement), 
B\_\_\_\_ (of \_\_\_\_\_), and 
C\_\_\_\_ (p \_\_\_\_\_\_ to s\_\_\_\_\_\_).

Answer 3

AGENCY 
Formation: ABC: 
Assent (informal agreement), 
Benefit (of P), and 
Control (power to supervise).

Question 4

Sub-Agent:

Person ____ by ____ to ____ functions assigned to the ____ by the ____ .

Answer 4

Sub-Agent:

Person appointed by agent to perform functions assigned to the A by the P.

Question 5

SUB-AGENT

No ______ Liability unless ____. When appointed with ____ ______ - same _____ as agent.

Answer 5

SUB-AGENT

No Vicarious Liability unless ABC. When appointed with proper authority - same duties as agent.

Question 6

AGENCY - CREATION
Formation by estoppel: If _____ creates the ______ of e______-e_______ relationship that _____ ____ relies on, P is ______ from ______ the relationship and will be _____.

Answer 6

AGENCY - CREATION
Formation by estoppel: If P creates the appearance of employer-employee relationship that 3P relies on, P is estopped from denying the relationship and will be liable.

Question 7

AGENCY AUTHORITY

To determine if _____ is bound by the _____, A must have had ______to enter into the _____and ____ P

Answer 7

AGENCY AUTHORITY

To determine if P is bound by the contract, A must have had authority to enter into the contract and bind P

Question 8

Actual express authority:
E______ m______
If _____ must be in______ then ______ must be. SOF

Answer 8

Actual express authority:
express manifestations.
If contract must be in writing then authority must be. SOF

Question 9

TERMINATION OF AUTHORITY
BLO-CHU (Blow bubble chew gum and get terminated)
B
L
O
C C
H
U T

Answer 9

TERMINATION OF AUTHORITY
BLO-CHU (Blow bubble chew gum and get terminated)
Breach
Lapse
Operation of law
Changed Circumstances
Happening of specific event
Unilateral termination

Question 10

Actual implied authority:

Authority which ______reasonably______ principal has given due to NCP:

Answer 10

Actual implied authority:

Authority which agent reasonably believes principal has given due to Necessity Custom Prior dealing:

Question 11

Actual implied authority:

______which agent ______ _______ p_____ has given due to ______ ______ ____ ______:

Answer 11

Actual implied authority:

Authority which agent reasonably believes principal has given due to Necessity Custom Prior dealing:

Question 12

Actual implied authority: (NCP)

Necessity: _____ to do all tasks ______ to accomplish ______ authorized ______.

Answer 12

Actual implied authority: (NCP)

Necessity: authority to do all tasks necessary to accomplish expressly authorized task.

Question 13

Actual implied authority: (NCP)

Custom: ______ to do all tasks ______ performed by persons with _____ _____/_____.

Answer 13

Actual implied authority: (NCP)

Custom: authority to do all tasks customarily performed by persons with A’s title/position.

Question 14

Actual implied authority: (NCP)

Prior dealings: _____ to do all tasks which ____ believes to be _____ to do from____ prior _____.

Answer 14

Actual implied authority: (NCP)

Prior dealings: authority to do all tasks which A believes to be authorized to do from P’s prior acceptance.

Question 15

Apparent authority: (P-TP): 2-part test

1) Principal “_____” agent with ______ of authority; and
2) ____ _____ reasonably ______ on that ________.

Answer 15

Apparent authority: (P-TP): 2-part test

1) Principal “cloaked” agent with appearance of authority; and
2) Third Party reasonably relies on that appearance.

Question 16

Apparent authority:
test
1) P
2) TP

Answer 16

Apparent authority(P-TP): 2-part test

1) Principal “cloaked” agent with appearance of authority; and
2) Third Party reasonably relies on that appearance.

Question 17

Ratification:
If an “____” acts for P w/o _____. Authority _____ if Principal:
1) has ______ of all m ______ f____; and
2) ______ its b______.

Answer 17

Ratification: If an “agent” acts for P w/o authority. Authority granted if Principal:

1) has knowledge of all material facts; and
2) accepts its benefits.

Question 18

AGENCY CONTRACT LIABILITY
General Rules:
1) If no authority, P is not _____; only _____ is liable on ___.
2) If authority, P is ____; ____is not ____on _____.

Exception: A may be ____ at _____ of 3P – IF:

1) P ______ disclosed (_____ of P _____)
2) P ______ (fact of P ______)

Answer 18

III. AGENCY CONTRACT LIABILITY

a. General Rules:
i. If no authority, P is not liable; only agent is liable on K.
ii. If authority, P is liable; agent is not liable on K.
b. Exception: A may be liable at election of 3P – IF:
i. P partially disclosed (identity of P concealed)
ii. P undisclosed (fact of P concealed)

Question 19

AGENCY TORT LIABILITY
P is_____ only for ____ committed by ____who is an e/ee, not _____ _____.
1) P ____ still be _____ for ____ hiring, _____, or e______ of employee.
2) P ___ still be ____ for an ___ ____ if the____ involved was _______ or e_____.

Answer 19

AGENCY TORT LIABILITY
P is liable only for torts committed by A who is an e/ee, not IC.
1) P may still be liable for negligent hiring, supervision, or entrustment of employee.
2) P may still be liable for an IC if the activity involved was ultrahazardous or estoppel.

Question 20

AGENCY TORT LIABILITY
P is liable only for torts committed by A who is an e/ee, not IC.

Employee/IC factors (C4’s): P’s Control over ____ and ____ of A’s performance,

1) C_______ by parties,
2) C_______ of locality regarding supervision of work,
3) degree of “_____” required on the job, whose tools or facilities are used, length of employment,
4) basis of C______, whether hired to further P’s business.

Answer 20

AGENCY TORT LIABILITY
P is liable only for torts committed by A who is an e/ee, not IC.

Employee/IC factors (C4’s): P’s control over manner and method of A’s performance,

1) Characterization by parties,
2) Customs of locality regarding supervision of work,
3) degree of “skill” required on the job, whose tools or facilities are used, length of employment,
4) basis of Compensation, whether hired to further P’s business.

Question 21

AGENCY TORT LIABILITY
P is liable only for torts committed by A who is an e/ee, not IC.

Employee/IC factors (C4’s): P’s control over manner and method of A’s performance,

1) Characterization by parties,
2) Customs of locality regarding supervision of work,
3) degree of “skill” required on the job, whose tools or facilities are used, length of employment,
4) basis of Compensation, whether hired to further P’s business.
c. Scope of employment: If E/EE relationships exists, employer will be liable for employee’s torts if they were committed within the scope of employment.
i. Scope of Employment = Absolutely Terrific Professional Person. Act, Time, Place & Purpose.
a. Was it a frolic (new and independent journey) – w/in scope.
b. Was it a detour (mere departure from assigned task) –w/in scope.
2. Was it an intentional tort?
a. Generally, outside of scope of agency. EXCEPTIONS: (SNM) each 1 is strong enough to rise to VL
1. Specifically authorized by principal;
2. Natural from the nature of employment
3. Motivated by desire to serve principal.

Answer 21

AGENCY TORT LIABILITY
P is liable only for torts committed by A who is an e/ee, not IC.

Employee/IC factors (C4’s): P’s control over manner and method of A’s performance,

1) Characterization by parties,
2) Customs of locality regarding supervision of work,
3) degree of “skill” required on the job, whose tools or facilities are used, length of employment,
4) basis of Compensation, whether hired to further P’s business.
c. Scope of employment: If E/EE relationships exists, employer will be liable for employee’s torts if they were committed within the scope of employment.
i. Scope of Employment = Absolutely Terrific Professional Person. Act, Time, Place & Purpose.
a. Was it a frolic (new and independent journey) – w/in scope.
b. Was it a detour (mere departure from assigned task) –w/in scope.
2. Was it an intentional tort?
a. Generally, outside of scope of agency. EXCEPTIONS: (SNM) each 1 is strong enough to rise to VL
1. Specifically authorized by principal;
2. Natural from the nature of employment
3. Motivated by desire to serve principal.

Question 22

Employee/IC factors (C4’s): P’s control over manner and method of A’s performance,

1) C_____ by p_____,
2) C_____ of l_____ regarding s_____ of work,
3) d_____ of “_____” required on the ____, whose ____ or f____ are used, l_____ of _____,
4) b____ of C_____, whether h_____ to further P’s ______.

Answer 22

Employee/IC factors (C4’s): P’s control over manner and method of A’s performance,

1) Characterization by parties,
2) Customs of locality regarding supervision of work,
3) degree of “skill” required on the job, whose tools or facilities are used, length of employment,
4) basis of Compensation, whether hired to further P’s business.

Question 23

Employee/IC factors (C4’s): P’s control over manner and method of A’s performance,

1) C
2) C
3) “k”
4) C

Answer 23

Employee/IC factors (C4’s): P’s control over manner and method of A’s performance,

1) Characterization by parties,
2) Customs of locality regarding supervision of work,
3) degree of “skill” required on the job, whose tools or facilities are used, length of employment,
4) basis of Compensation, whether hired to further P’s business.

Question 24

AGENCY TORT LIABILITY
Scope of employment:
If ____-_____ relationships _____,
e______ will be ______ for e_______ t____
if they were ______ within the _____ of _____.

Answer 24

AGENCY TORT LIABILITY
Scope of employment: If E/EE relationships exists, employer will be liable for employee’s torts
they were committed within the scope of employment.

Question 25

AGENCY TORT LIABILITY

Scope of employment = A____ T____ P_____P____

Answer 25

AGENCY TORT LIABILITY

Scope of employment = Absolutely Terrific Professional Person. Act, Time, Place & Purpose.

Question 26

AGENCY TORT LIABILITY
Scope of employment =
Absolutely Terrific Professional Person.

Answer 26

AGENCY TORT LIABILITY
Scope of employment =
Absolutely Terrific Professional Person.
Act, Time, Place & Purpose.

Question 27

AGENCY TORT LIABILITY
Scope of employment
1) Was it a ____ (n____ and i___ j___) – w/in _____.
2) Was it a ___ (mere d ___from ass__ task) –w/in ____.

Answer 27

AGENCY TORT LIABILITY
Scope of employment = Absolutely Terrific Professional Person. Act, Time, Place & Purpose.
1) Was it a frolic (new and independent journey) – w/in scope.
2) Was it a detour (mere departure from assigned task) –w/in scope.

Question 28

An Intentional Tort is generally, outside of scope of agency. Exceptions of
1)S___ a _____ by ___;
1. S_____ a____ by p____
2. N ____ : from the n____ of _____
3. M_____ by d____ to serve _____.
can be strong enough to rise to Vicarious Liability

Answer 28

An Intentional Tort is generally, outside of scope of agency. Exceptions of
1. Specifically authorized by principal;
2. Natural from the nature of employment
3. Motivated by desire to serve principal.
can be strong enough to rise to Vicarious Liability.

Question 29

Was it an intentional tort?
Generally, \_\_\_\_\_of scope of \_\_\_\_\_. 
EXCEPTIONS: (SNM) each 1 is strong enough to rise to V\_\_\_\_\_ L\_\_\_\_
1.	S\_\_\_\_\_ a\_\_\_\_ by p\_\_\_\_
2.	N \_\_\_\_ : from the n\_\_\_\_ of \_\_\_\_\_
3.	M\_\_\_\_\_ by d\_\_\_\_ to serve \_\_\_\_\_.

Answer 29

Was it an intentional tort?
Generally, outside of scope of agency.
EXCEPTIONS: (SNM) each 1 is strong enough to rise to Vicarious Liability
1. Specifically authorized by principal;
2. Natural from the nature of employment
3. Motivated by desire to serve principal.

Question 30

EXCEPTIONS to Intentional Tort : SNM = VL

1. S_____ a_____ by p_____;
2. N____: from the n____ of e_____
3. M _____ by d____ to s_____ p_____.

Answer 30

EXCEPTIONS to Intentional Tort: (SNM) each 1 is strong enough to rise to Vicarious Liability

1. Specifically authorized by principal;
2. Natural from the nature of employment
3. Motivated by desire to serve principal.

Question 31

DUTIES OWED BY AGENT (ROL-SUS)

1) duty to _____ R_____ c____ (______ all r______ information),
2) duty to O_____ r_______ i_____, AND
4) duty of L_____ (the duty of l ____ can be b____ by:
(a) Self-dealing: _____ receives ______ to d_____ of principal,
(b) U_____ the p______ _______, or
(c) S_____ p_____.

Answer 31

DUTIES OWED BY AGENT (ROL-SUS)

1) duty to exercise Reasonable care (disclose all relevant information),
2) duty to Obey reasonable instruction, AND
4) duty of Loyalty (the duty of loyalty can be breached by:
(a) engaging in Self-dealing: agent receives benefit to detriment of principal,
(b) Usurping the principal’s authority, or
(c) Secret profits.

Question 32

DUTIES OWED BY AGENT (ROL-SUS) 
Duty to: 
1) \_\_\_\_\_ R\_\_\_\_ \_\_\_\_ 
2) O\_\_\_\_ \_\_\_\_\_ \_\_\_\_\_, AND 
4) L\_\_\_\_
can be breached by: 
(a) S\_\_\_\_\_
(b) U\_\_\_\_, OR
(c) S\_\_\_\_ \_\_\_\_.

Answer 32

DUTIES OWED BY AGENT (ROL-SUS) 
1) exercise Reasonable care
2) Obey reasonable instruction, AND 
4) Loyalty 
can be breached by: 
(a) Self-dealing
(b) Usurping, or 
(c) Secret profits.

Question 33

??????Remedies to Principal:

1) contract remedies if Agent compensated (recover losses caused by breach),
2) tort remedies,
3) action for secret profits (disgorge profits),
4) withholding of comp. ?????

Answer 33

????Remedies to Principal:

1) contract remedies if Agent compensated (recover losses caused by breach),
2) tort remedies,
3) action for secret profits (disgorge profits),
4) withholding of comp. ?????

Question 34

Duties owed by principal: CCC

1) duty to reasonably c______ or reimburse expenses,
2) duty to c_______ (not unreasonably interfere with A’s performance),
3) express c______ duties.

Answer 34

Duties owed by principal: CCC

1) duty to reasonably compensate or reimburse expenses,
2) duty to cooperate (not unreasonably interfere with A’s performance),
3) express contractual duties.

Question 35

Duties owed by principal: CCC

1) duty to r______ c______ or r______ expenses,
2) duty to c_______ (not ________ i_____ with A’s _____),
3) e_____ c______ duties.

Answer 35

Duties owed by principal: CCC

1) duty to reasonably compensate or reimburse expenses,
2) duty to cooperate (not unreasonably interfere with A’s performance),
3) express contractual duties.

Question 36

Duties owed by principal: CCC

Answer 36

Duties owed by principal: CCC

1) compensate
2) cooperate
3) contractual

Question 37

????Remedies to A: K remedies, lien on for any money due from P.

Answer 37

????Remedies to A: K remedies, lien on for any money due from P.

Question 38

Implied w_____ of authority
When an _____ holds herself out to a ____ ____ as possessing a____ a___ to ____ on behalf of a p____, the ____ impliedly _____ that she _____ the n_____ a_____.
If the ____does not, in fact, have ____ to enter a _____ on behalf of the _____, and the p_____ refuses to ____ the _____, then the ____ party may seek _____ against the_____ for a _____ of the implied _____ of ________.

Answer 38

Implied warranty of authority
When an agent holds herself out to a third party as possessing actual authority to act on behalf of a principal, the agent impliedly warrants that she possesses the necessary authority. If the agent does not, in fact, have authority to enter a contract on behalf of the principal, and the principal refuses to ratify the contract, then the third party may seek damages against the agent for a breach of the implied warranty of authority.

Question 39

FROLIC
employee’s ____ is a s____, s____, or m____ d____ from the _____ duties. An ____ is not ____ ___for ____ committed by ____while on a ____.

Answer 39

FROLIC
employee’s frolic is a serious, substantial, or major departure from the employee’s duties. An employer is not vicariously liable for torts committed by employees while on a frolic

Question 40

DETOUR
is a _________ small ______ from the _____ duties for ______ activities. D____ are within the ____of an employee’s _______t; therefore, an _____ is _____ _____ for _____ committed by the _____ while on a _____.

Answer 40

DETOUR
is a comparatively small deviation from the employee’s duties for personal activities. Detours are within the scope of an employee’s employment; therefore, an employer is vicariously liable for torts committed by the employee while on a detour.

Question 41

PROMOTOR
procures _____ and other _______ to be used by a _______ after it is formed.

Generally, a promoter is ____ on a ______ contract unless the contract _____ _____ that the _____ do not intend the ______ to be _____, in which case the “_____” will be _____ as a _____ offer to the _____ to be formed.

Answer 41

PROMOTOR
procures capital and other instrumentalities to be used by a corporation after it is formed.

Generally, a promoter is liable on a preincorporation contract unless the contract clearly states that the parties do not intend the promoter to be liable, in which case the “contract” will be treated as a continuing offer to the corporation to be formed.

Question 42

A corporation is not _____ on a ________contract until it _____ the contract. Generally, a ______ is considered _____upon filing the _____ of ______.

Answer 42

A corporation is not liable on a preincorporation contract until it adopts the contract. Generally, a corporation is considered formed upon filing the articles of organization.

Question 43

SUBSCRIPTION common law,

a _________ subscription is ______ until it is ______. This is the ____ still applies to________ _______ agreements.

Answer 43

SUBSCRIPTION common law,
a preincorporation subscription is rescindable until it is accepted. This is the rule still applies to post-incorporation subscription agreements.

Question 44

SUBSCRIPTION
Under the R___ M _____ B_____ C_____ A__ (“MBCA”), a _____ ______ agreement is ______for __ months unless the ____ ______ consent to the _______.

Answer 44

SUBSCRIPTION
Under the Revised Model Business Corporation Act (“MBCA”), a preincorporation subscription agreement is irrevocable for 6 months unless the other subscribers consent to the revocation.

Question 45

The MBCA provides that unless the ____ or ____ provide _____, the _____ can create one or more ____ c_____ to which _____ authority may be _____. AND only for ____ of _____ members to _____.

Answer 45

The MBCA provides that unless the articles or bylaws provide otherwise, the board can create one or more executive committees to which board authority may be delegated AND only for appointment of board members to committees