Agency

Question 1

Definition

Answer 1

Agency is the legal relationship whereby one person manifests assent that another person shall act on her behalf and agent consent to do so

Question 2

Creation of agency: capacity

Answer 2

P must have contractual capacity. A needs only minimal capacity

Question 3

Creation of agency: disqualification of A

Answer 3

A may be disqualified for not having requisite licenses or for representing both parites

Question 4

Creation of agency: Formalities

Answer 4

1. Consent.
   No consideration necessary
   No writing required

Question 5

Creation of agency: by act of parties

Answer 5

By agreement of parties (actual authority); holding out by P (apparent authority) or ratification

Question 6

Creation of agency: by operation of law

Answer 6

Estoppel = virtually the same as apparent authority

By statute = statute appoints sec of state as driver’s agent

Question 7

Agent’s duties

Answer 7

In addition to any contractual duties, A has f duties of loyalty, obedience to lawful instruction and reasonable care

Question 8

P’s remedies against A

Answer 8

-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.

Question 9

Subagents

Answer 9

Person appointed by an agent to perform functions that A consented to perform on behalf of P

Question 10

Subagents: difference between sub and co agents

Answer 10

Co agents is another agent of P. A does not delegate own powers to co-agent. employees of single org = co-agents

Question 11

Subagents: liability of A

Answer 11

A absolutely libale to P for breaches by subagent

Question 12

Subagents: duties

Answer 12

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

Question 13

P’s duties

Answer 13

All duties imposed by k, reasonable compensation and remimbursement for expenses. P must cooperate and not interfere with A

Question 14

A’s remedies

Answer 14

K remedies

possessory lien for any money due from P including compensation

Question 15

Actual Authority

Answer 15

authority that A reasonably believes she possesses based on P’s dealings with her. May be express or implied

Question 16

Actual Authority: Express

Answer 16

in the 4 corners of the agreement. effective even if granted mistakenly or because of misrep

Question 17

Actual Authority: Implied

Answer 17

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

Question 18

Actual Authority: termination

Answer 18

1. lapse of reasonable/specified time
2. specific event
3. change in circumstances
4. A’s breach of duty
5. unilateral termination
6. opeation of law (death/lack of capacity)

Question 19

Actual Authority: Irrevocable agencies

Answer 19

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

Question 20

Apparent Authority:

Answer 20

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

Question 21

Apparent Authority: Imposters

Answer 21

When P negigently permits an impsoter to be in a position to appear to ahve agency, P liable

Question 22

Apparent Authority: lingering apparent authority

Answer 22

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

Question 23

Apparent Authority: When A exceeds actual authority

Answer 23

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.

Question 24

Apparent Authority: Conduct similar to that authorized

Answer 24

where A exceeds his actual auth but the conduct is similar P is bound

Question 25

Improper Disposition of goods

Answer 25

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.

Question 26

Creating agency through ratification

Answer 26

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

Question 27

Reqs for ratification

Answer 27

P must know all material facts, accept transaction and have capacity. Can be express or implied

Question 28

What can’t be ratified

Answer 28

1. illegal acts
2. when the 3rd party has withdrawn
3. where theres a material change in circumstances
   Maybe an undisclosed P cannot ratify because the A must be acting under purported authority

Question 29

Liability: 3rd party v. principal

Answer 29

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

Question 30

Liability: 3rd party v. agent

Answer 30

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

Question 31

Liability: 3rd party liability to P and A

Answer 31

Disclosed P = only P can enforce

unidentified/undisclosed P = either p or A can enforce

Question 32

When is P vicariously liable for A’s torts: two theories

Answer 32

1. Respondeat superior

2. apparent authority

Question 33

when is P directly liable for A’s torts:

Answer 33

1. directly liable for N in hiring/supervising A
2. directly liable for A’s action with actual authority
3. ratification of tort

Question 34

Respondeat Superior: first step

Answer 34

Is there an employer/employee relationship

Question 35

Respondeat Superior: independent contractors

Answer 35

important distinction is whether the P has right to control the manner and method of job performance and does

Question 36

Respondeat Superior: liability for subservants

Answer 36

if P authorized the subservants, P i liable for their acts

Question 37

Respondeat Superior: unquestionable liability for acts of independent contractors

Answer 37

1. inherently dangerous activity involved
2. nondelegable duties have been delegated
3. P knowingly picks incompetent independent contractor (liable for own negligence)

Question 38

Respondeat Superior: second step

Answer 38

Was tort committed in the scope of employment

Question 39

Respondeat Superior: frolic & detour

Answer 39

Minor deviation = detour and P is still liable

Question 40

Respondeat Superior: also consider whether A’s conduct was actuated at least in part by a purpose to serve employer

Answer 40

invitation to passengers generally not liability to P. Unatuhroized instrumentalities generally no liability to P.

Question 41

Respondeat Superior: intentional torts

Answer 41

intentional torts generally not within scope of employment unless a natural incident of employee’s duties.