Agency Flashcards
Definition
Agency is the legal relationship whereby one person manifests assent that another person shall act on her behalf and agent consent to do so
Creation of agency: capacity
P must have contractual capacity. A needs only minimal capacity
Creation of agency: disqualification of A
A may be disqualified for not having requisite licenses or for representing both parites
Creation of agency: Formalities
- Consent.
No consideration necessary
No writing required
Creation of agency: by act of parties
By agreement of parties (actual authority); holding out by P (apparent authority) or ratification
Creation of agency: by operation of law
Estoppel = virtually the same as apparent authority
By statute = statute appoints sec of state as driver’s agent
Agent’s duties
In addition to any contractual duties, A has f duties of loyalty, obedience to lawful instruction and reasonable care
P’s remedies against A
-contract actions
-tort actions
-actions for secret profits
- equitable actions for accounting
-withholding of compensation for intentional torts or breaches of F duties
P can recover actual profits from A even if P doesn’t suffer any actual lost
P may terminate the A relationship prior to termination of date in k.
Subagents
Person appointed by an agent to perform functions that A consented to perform on behalf of P
Subagents: difference between sub and co agents
Co agents is another agent of P. A does not delegate own powers to co-agent. employees of single org = co-agents
Subagents: liability of A
A absolutely libale to P for breaches by subagent
Subagents: duties
S owes P the same duties that A does. Is SubA is unatuhorized he owes no duties to P but does owe duties to A
P’s duties
All duties imposed by k, reasonable compensation and remimbursement for expenses. P must cooperate and not interfere with A
A’s remedies
K remedies
possessory lien for any money due from P including compensation
Actual Authority
authority that A reasonably believes she possesses based on P’s dealings with her. May be express or implied
Actual Authority: Express
in the 4 corners of the agreement. effective even if granted mistakenly or because of misrep
Actual Authority: Implied
What a reasonably believes she has as a result of the P's actions. Includes 1 incidental to express 2. arising out of custom 3. resuling from prior acquiesance 4. emergency 5. to delegate ministerial tasks 6. to pay and accept delivery of goods 7. give general warranties, collect payment and give delivery 8. manage investments
Actual Authority: termination
- lapse of reasonable/specified time
- specific event
- change in circumstances
- A’s breach of duty
- unilateral termination
- opeation of law (death/lack of capacity)
Actual Authority: Irrevocable agencies
Agency coupled with an interest or power given as a security may be unilaterally terminated by the P if the agency was given to protect A’s rights and is supported by consideration
Apparent Authority:
Arises out of reasonable beliefs of third parties. If P directly or indirectly holds out antoher as possessing certain authority and induces reliance by others on that authority, the person held out has apparent authority
Apparent Authority: Imposters
When P negigently permits an impsoter to be in a position to appear to ahve agency, P liable
Apparent Authority: lingering apparent authority
When A’s actual authority terminated, he has apaprent authority with third parties he has dealt with until they receive actual or constructive notice. Where A’s actual authority terminated but 3rd parties rely on written authority of A, A’s apparent authority is not termianted. P’s death does not automatically termiante apparent authority
Apparent Authority: When A exceeds actual authority
Where P previously permitted A to exceed auth and knows 3rd party is aware of this P is bound.
Or where A is in position that customarily carries with it certain responsibilities, P is liable for A’s acts.
Apparent Authority: Conduct similar to that authorized
where A exceeds his actual auth but the conduct is similar P is bound
Improper Disposition of goods
P will be held liable for disposition of goods by A possessing them if A was given some indicia of ownerhsip or goods disposed of were sold by an A who is a dealer in the particular goods.
Creating agency through ratification
When A purports to act for P without any authority at all but P subsequently validates the act and becomes bound. Transaction is given retroactive effect unless P lacks capacity or retroactivity would interfere with third party rights
Reqs for ratification
P must know all material facts, accept transaction and have capacity. Can be express or implied
What can’t be ratified
- illegal acts
- when the 3rd party has withdrawn
- where theres a material change in circumstances
Maybe an undisclosed P cannot ratify because the A must be acting under purported authority
Liability: 3rd party v. principal
P liable to 3rd party on a k entered into by A if A had valid authority to act. Do not discuss whether P is disclosed or not
Liability: 3rd party v. agent
Depends on whether the P was disclosed or not
Disclosed P = Always liable and A is not liable
unidentified and undisclosed P = liability for P AND A
Liability: 3rd party liability to P and A
Disclosed P = only P can enforce
unidentified/undisclosed P = either p or A can enforce
When is P vicariously liable for A’s torts: two theories
- Respondeat superior
2. apparent authority
when is P directly liable for A’s torts:
- directly liable for N in hiring/supervising A
- directly liable for A’s action with actual authority
- ratification of tort
Respondeat Superior: first step
Is there an employer/employee relationship
Respondeat Superior: independent contractors
important distinction is whether the P has right to control the manner and method of job performance and does
Respondeat Superior: liability for subservants
if P authorized the subservants, P i liable for their acts
Respondeat Superior: unquestionable liability for acts of independent contractors
- inherently dangerous activity involved
- nondelegable duties have been delegated
- P knowingly picks incompetent independent contractor (liable for own negligence)
Respondeat Superior: second step
Was tort committed in the scope of employment
Respondeat Superior: frolic & detour
Minor deviation = detour and P is still liable
Respondeat Superior: also consider whether A’s conduct was actuated at least in part by a purpose to serve employer
invitation to passengers generally not liability to P. Unatuhroized instrumentalities generally no liability to P.
Respondeat Superior: intentional torts
intentional torts generally not within scope of employment unless a natural incident of employee’s duties.
