Agency Flashcards
Creation of Agency Relationship
Assent, Benefit, Control (no requirement of consideration) (disclaimer does not matter-if it looks like agent relationship it is agent relationship) (no writing necessary)
Who can be a Principal
Any person or entity with legal capacity.
Who can be an Agent
Any person who has minimal capacity
Types of Agents
(1) Servants/employees
(2) independent contractors
Servant/Employee
Employer has the right to control the agent’s physical conduct of work
Independent Contractor
The principal does not control or have the right to control the agents physical conduct of work (maintain high lvl of independence; free to work for others; paid on fixed fee; has own tools)
Terminating Agency Relationship
Either party can terminate unilaterally
Principal Liability on Ks by agent
Liable if there is authority: Express, Implied, Apparent, or–ratifies
Actual Express Authority
Principal communicates authority to agent: uses words, written or spoken, to convey authority to agent
(Subjective: agent MUST believe he is doing what P wants him to do
Objective: Belief must be reasonable)
Authority ends when agent gets knowledge of principals death
Implied Authority
Principal creates implied authority using words, written or spoken, or other conduct, to convey authority to agent to take whatever steps are necessary to achieve the objectives
(agent may act within general business custom/trade usage/past course of dealings etc)
Apparent Authority
Communication between Principal and THIRD PARTY that creates ‘apparent authority,’ i.e., induces 3d party to reasonably believe principal consents to agent acting on principal’s behalf
Ratification
Post K: requires Principal has (1) knowledge of material facts, (2) accepts the K benefits
Disclosed Principal (contract)
3d party knows (i) agent is acting for Principal, and (ii) the principal is known
(K binds Principal and 3d party)
Partially Disclosed (contract)
3d Party knows (i) agent is acting for principal, but (ii) the principal is NOT known
(K binds 3 party, principal, AND agent)
Undisclosed (contract)
3d party does not know agent is working for principals and does not know the principal
Principal can be party along with 3d party and agent if agent had authority
Vicarious Liability (respondeat superior) (tort)
Principal has control equal to employer/employee relationship, tort by agent was within the scope of employment
control for vicarious liability
principal controls or has right to control the the PHYSICAL CONDUCT, I,e., manner and means, of the agents performance of the work
Principal liability for independent contractor
Generally, no liability, except when: task is inherently dangerous, principal was negligent in hiring the IC, the principal retains control over certain tasks and tort occurred during those tasks
Scope of Employment
- Did agent intend to benefit principal
- was the conduct of the kind that agent was hired to perform
- did the tort occur on the job (frolic vs detour) Frolic-significant deviation–no liability; detour–de minis deviation–liable
Intentional Torts
Principal not liable since considered not within scope. Exceptions= conduct occurred within the general space and time limits of employment, the agent was motivated in some part to benefit the principal, the act is of the kind that the agent was hired to perform) ex: pitcher at ball game warming up, hears jeering fan, throws ball at fans head)
Agents Fiduciary Duties
(1) Reasonable care
(2) Obey reasonable instructions
(3) Loyalty
