Agency Flashcards
First Assess type of relationship
Agent/Servant OR Independent Contractor
Agent/Servant Relationship
Q: is the employer L under the theory of Respondeat Superior?
Respondeat Superior–if the acts of the agent/servant are the proximate cause of the injury to 3rd party and such acts were within the scope of employment, then the aggrieved party has an action against both the master and servant (aka principal/agent). This is known as VICARIOUS LIABILITY. employer = passive wrongdoer.
Scope of Employment
employer must exercise reasonable care when an employee is acting outside scope of employment, IF the employee is on employer’s premises or is using the chattel of the employer.
Determining whether within scope–an employee is acting within the scope when he acts with the intent of furthering the employer’s business purpose.
Vehicles and Traffic Law
if the agent’s neg act occurred while driving the principal’s car, discuss Vehicle and Traffic Law Sec 388 which imposes VICARIOUS L on the owner of a motor vehicle for the negligence of a driver who had PERMISSION
Independent Contractor
is employed by the principle to achieve a certain result. The contractor is NOT under the principal’s immediate control, direction or supervision in relation to the details of the work. The independent contractor is subject to the control of his employer only as to the result.
L re Independent Contractor
Generally employer is NOT L, EXCEPT:
(1) where the work being done by the ind contractor is deemed inherently dangerous (blasting, scaffolding)
(2) where the O interferes with the contractor’s work
(3) Negligent hiring
(4) Of work creates a danger to a business invitee
Intentional Torts of an Employee
an employer is vicariously L for the intentional torts of their employee if the employee acted within the scope of their employment and the employer knew or should have known that the employee’s potential to commit intentional torts (forseeability) (neg acts are always foreseeable).
However, even if the employee was not acting within the scope of their employment, the employer would still be L if the employee was on the employer’s premises when they committed the foreseeable intentional tort.
Punitive Damages
if the employer is responsible for an intentional tort , defamation, or sexual harassment of employee, they will be responsible for punitive damages, but only if:
(1) employer consented, participated, or ratified
(2) the employer was neg in retaining the employee (forseeablity)
(3) the tort was in furtherance of the employer’s recognized business practice, OR
(4) the employee was part of mgmt or was a high level employee
Real Estate Broker–Procure Customer
absent a power of atty, the broker is auth only to procure a customer but is not auth to bind the principal by K
Real Estate Broker–Earning Commissions
In the absence of any agreements to the contrary, a broke is deemed to have earned his commission when he produces a buyer ready willing and able to make the purchase upon all the terms and conditions set forth by the principal
Real Estate Broker–Subsequent events
Subsequent events, such as the bad faith of the buyer or seller or the destruction of the property will not extinguish brokers right to his commission UNLESS the agreement has provided otherwise. The broker’s agreement is separate from the land sale agreement.
Real Estate Broker–No Guarantee to Consummate
Broker does not guarantee the consummation of the deal, rather undertakes to tender a ready willing and able buyer
Real Estate Broker–Licensed Prior to Closing
IF the broker must sue to collect his fee, a condition precedent is that he must be licensed in NY prior to closing. However, an atty may engage in the brokering of real estate w/o a license if he is registered in Albany prior to closing.
Real Estate Broker–No Specific Performance
A broker may not demand that seller bring an action for specific performance against buyer. The broker is not in privily of K with the buyer/seller.
Real Estate Broker–No Interference
a broker may not interfere in problems between buyer/seller
Real Estate Broker–Seller Along Frustrating
A broker may have a legal right to take action against seller, if the seller alone is frustrating sale
Real Estate Broker–Exclusive Right to Sell
An “exclusive right to sell” means that no matter who makes the sale within the per of exclusivity, the broker earns his commission, even if it is the seller alone who makes the sale.
Real Estate Broker–Exclusive Agency
An exclusive agency is a designation by the seller that the broker is the only person, other than O, who can sell the property, but if the seller sells the property independent of the broker he does not owe his commission
Capacity to be a Principal
(1) Competent Person–any competent person can be a principal, including an infant
(2) Legal Entity–can be a principal (eg corp or partnership)
(3) General Rules of Capacity–the principal warrants the capacity of the agent. One who knowingly allows another to act as his agent is held to guarantee the competency of the agent.
RULE: an infant principal can avoid a K made by an adult agent, who then becomes personally responsible. An adult principal cannot avoid Ks made by an infant agent.
Capacity to be an Agent
(1) COMPETENCE–any competent person or entity, including infants (except infants of tender years), may act as an agent.
(2) CAPACITY–the agent draws his capacity from his principal and guarantees the capacity of his principal.
(3) WRITING REQ–there are three times that an Agent’s authority MUST be in writing to bind the Principal
- when the agent’s authority involves the conveyance of real property. Exception: licensed broker or licensed atty registered in Albany.
- When an agency K by its terms is NOT performed w/in one year
- Power of atty
Creation of an Agency Relationship (6 ways)
BY APPOINTMENT
(1) Express oral or written agreement
(2) Implied by conduct
OTHER THAN BY APPOINTMENT
(3) By ratification–Pose of Agency
(4) Operation of Law–Estoppel
(5) Apparent Authority–Agency by Estoppel
(6) Agency by Necessity
Termination of Agency Relationship BY AGREEMENT
may be terminated by an act or agreement of the parties.
- Ex if the agency is of a specified duration, it will terminated upon stated date;
- Ex if the agency is at will it will terminate whenever one party wants it to;
Termination of Agency Relationship BY OPERATION OF LAW
(1) DEATH OF PRINCIPAL–post mortem acts of agent do not bind the estate
(2) DEATH OF AGENT
(3) INCAPACITY OF EITHER PARTY
-Judicial decree–if determined by judge insanity terminates the agency and is binding on both principal and 3rd parties
No judicial decree–if the insanity is non-judicial incompetency, then it will not be binding upon third parties who deal with the agent w/o knowledge of his incapacity, and such innocent third parties will be protected and will be able to proceed against the principal but, the principal may be able to obtain indemnification from the agent for whom his own insanity does not constitute a factor.
(4) BANKRUPTCY–bankrupcy and insolvency of principal terminates an agency. However, if it is the agenct who is bankrupt, then the principal may revoke the agency if the agent’s state affects his ability to carry on the agency.
Agency Coupled with an Interest
If an agency is coupled w/ and interest in the subject matter, then the agency is irrevocable during its term and none of the grounds specified under the termination by operation of law of an agency will apply. Agency terminates either on payment to the agent or if the subject matter is destroyed.
RULE: when possession, title or a lien, plus authority to sell is given to another to satisfy some obligation, it is an irrevocable agency coupled with an interest.
