Agency

Question 1

Creation of Agency Relationship

Answer 1

Assent, Benefit, Control (no requirement of consideration) (disclaimer does not matter-if it looks like agent relationship it is agent relationship) (no writing necessary)

Question 2

Who can be a Principal

Answer 2

Any person or entity with legal capacity.

Question 3

Who can be an Agent

Answer 3

Any person who has minimal capacity

Question 4

Types of Agents

Answer 4

(1) Servants/employees

(2) independent contractors

Question 5

Servant/Employee

Answer 5

Employer has the right to control the agent’s physical conduct of work

Question 6

Independent Contractor

Answer 6

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)

Question 7

Terminating Agency Relationship

Answer 7

Either party can terminate unilaterally

Question 8

Principal Liability on Ks by agent

Answer 8

Liable if there is authority: Express, Implied, Apparent, or–ratifies

Question 9

Actual Express Authority

Answer 9

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

Question 10

Implied Authority

Answer 10

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)

Question 11

Apparent Authority

Answer 11

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

Question 12

Ratification

Answer 12

Post K: requires Principal has (1) knowledge of material facts, (2) accepts the K benefits

Question 13

Disclosed Principal (contract)

Answer 13

3d party knows (i) agent is acting for Principal, and (ii) the principal is known
(K binds Principal and 3d party)

Question 14

Partially Disclosed (contract)

Answer 14

3d Party knows (i) agent is acting for principal, but (ii) the principal is NOT known
(K binds 3 party, principal, AND agent)

Question 15

Undisclosed (contract)

Answer 15

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

Question 16

Vicarious Liability (respondeat superior) (tort)

Answer 16

Principal has control equal to employer/employee relationship, tort by agent was within the scope of employment

Question 17

control for vicarious liability

Answer 17

principal controls or has right to control the the PHYSICAL CONDUCT, I,e., manner and means, of the agents performance of the work

Question 18

Principal liability for independent contractor

Answer 18

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

Question 19

Scope of Employment

Answer 19

1. Did agent intend to benefit principal
2. was the conduct of the kind that agent was hired to perform
3. did the tort occur on the job (frolic vs detour) Frolic-significant deviation–no liability; detour–de minis deviation–liable

Question 20

Intentional Torts

Answer 20

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)

Question 21

Agents Fiduciary Duties

Answer 21

(1) Reasonable care
(2) Obey reasonable instructions
(3) Loyalty