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Agency > Agency > Flashcards

Agency Flashcards

1
Q

When does the fiduciary relationship of agency arise?

A

(1) Principal appoints the agent to act on his behalf and (2) agent consents to act subject to principal’s control

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2
Q

What is the requisite level of control the P must have over the A?

A

P specifies the task the Agent should perform

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3
Q

When is agency created through estoppel?

A

third party relies on Principal’s communication

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4
Q

What fiduciary duties does the agent owe the principal?

A

Care, loyalty, obedience

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5
Q

What is required for the duty of care?

A

Agent must carry out their agency with reasonable care (special skills considered)

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6
Q

What does the agent’s duty of loyalty require?

A
  1. can’t profit
  2. act for sole benefit of P
  3. refrain from dealing w/ P as adverse party
  4. don’t compete
  5. Don’t use property for own purpose
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7
Q

What does the duty of obedience require?

A

A must obey all reasonable instructions

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8
Q

What is a subagent?

A

Person agent appoints to perform functions agent consented to perform for P

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9
Q

What is liability of agent for breaches by a subagent?

A

Agent has absolute liability to P for breaches

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10
Q

What duties does subagent owe the P?

A

If P authorized –> subagent owes same duties as P
If P did not authorize –> subagent owes duties to A but not P

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11
Q

What obligations does P have to A?

A

(1) duties imposed by their contract
(2) reasonable compensation
(3) reimbursement of expenses

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12
Q

When does Agent have Actual Authority?

A

words/conduct of P would lead reasonable person in A’s position to believe they have authority to act on P’s behalf

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13
Q

When does express actual authority arise?

A

Authority conveyed by P by words (oral or written)

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14
Q

9 Scenarios where A has implied actual authority:

A
  1. Incidental to express
  2. Custom
  3. Acquiescence
  4. Emergency
  5. Delegation required
  6. Pay for/accept goods when A has authority to purchase
  7. Give warranties, collect payment, and deliver where A has authority to sell
  8. Manage investments
  9. Title or position of A
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15
Q

When is actual authority terminated?

A
  1. Happening of event stated in agreement
  2. lapse of reasonable time if no time for termination
  3. change in circumstances
  4. agent’s breach of duties
  5. either party’s unilateral termination
  6. Operation of law
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16
Q

When is agency irrevocable?

A

(1) coupled with an interest or (2) power given as security supported by consideration

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17
Q

When does apparent authority arise?

A

P holds out another as possessing authority leading third party to reasonably believe authority exists

18
Q

When will agency by estoppel arise regarding an imposter?

A

P negligently permits imposter to be in position to appear to have authority

19
Q

What is lingering apparent authority?

A

Apparent authority that exists even when actual authority terminates because third party does not know of termination of A’s authority

19
Q

Two situations where agent exceeds actual authority but P still bound by apparent authority

A

(1) P permitted A to exceed actual authority and knows third party is aware or (2) power of A’s position

20
Q

When is agency relationship created by ratification?

A

Agent acts on behalf of principal without authority but P later validates the act

21
Q

For ratification to occur the P must:

A
  1. Know or have reason to know all material facts of K
  2. Accept the entire tx, AND
  3. Have capacity (competent and legal age)
22
Q

How does a Principal ratify

A
  1. Express (written or oral)
  2. Implied (accept benefits)
23
Q

Three situations where P cannot ratify:

A
  1. Performance was illegal at time of ratification
  2. 3rd Party withdraws
  3. Material change in circumstances
24
Q

When is Principal liable to a third party on a contract entered into by their agent?

A

Actual, apparent, or ratification

25
Q

When is agent liable to third party for contract entered into for P?

A

Not liable unless existence and identity of P not disclosed

26
Q

When is agent liable to third party for contract entered into when P identity and existence are disclosed?

A

Never unless parties to contract intended agent to be liable

27
Q

What happens if third party obtains a judgment against A and then learns of the P’s identity?

A

Third party can sue the P if the judgment is not yet satisfied

28
Q

What are a third party’s rights when he enters contract with A and Principal’s existence or identity not disclosed?

A

third party can hold A or P liable if A had authority (must pick one)

29
Q

Who can enforce a contract against a third party when the principal was disclosed?

A

Only the principal

30
Q

Who can enforce a contract against a third party when principal is unidentified or undisclosed?

A

either the principal or agent can enforce but principal entitled to benefits rights rights of contract

31
Q

Two theories upon which Principal is liable for torts of their agent

A
  1. Respondeat superior (employee)
  2. Apparent authority
32
Q

How to determine whether agent is independent contractor or employee?

A

If Principal has right to control the manner in which agent achieved the results principal desires –> EE

33
Q

Factors for determining whether principal has right to control the agent’s manner of work

A
  1. degree of skill required (greater skill = indp K)
  2. whose tools/facilities used
  3. Length of employment
  4. Is compensation based on time or completion of service
  5. is service in furtherance of P’s business
  6. Does A have a distinct business?
  7. Understanding of parties
  8. Customs of locality
34
Q

Three factors for determining whether tort committed in scope of ET

A
  1. conduct “of the kind” A hired to perform?
  2. Did tort occur on the job?
  3. Was conduct actuated to benefit P?
35
Q

What is frolic?

A

major deviation requiring substantial departure from et

36
Q

What is detour?

A

small deviation from ER’s direction

37
Q

Is ER liable for intentional torts?

A

Generally no

38
Q

Exceptions to general rule that ER not liable for intentional torts:

A
  1. tort is natural incident of EE duties
  2. EE is promoting ER’s business
  3. ER authorized or ratified
39
Q

How to determine liability for the tort of a borrowed EE?

A

Ask who has primary right of control

40
Q

When is P liable for the acts of an independent contractor?

A
  1. inherently dangerous activities
  2. P delegated non-delegable duties
  3. P selected incompetent independent contractor
41
Q

When is P liable for torts of A acting with apparent authority?

A

When A’s apparent authority enables him to (1) commit a tort, or (2) conceal its commission

Agency (1 decks)

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