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AGENCY AND PARTNERSHIP > AGENCY > Flashcards

AGENCY Flashcards

1
Q

DEFINITION OF AGENCY

A

A consensual FIDUCIARY relationship between a principal and an agent via express or implied consent for one to act as an agent on behalf of another under his control and consent.

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2
Q

ELEMENTS OF AGENCY

A

CAPACITY/CONSENT/CONTROL/SOF(DIGNITY)/NO CONSIDERATION NEEDED (BUT PREFERRED)

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3
Q

AGENCY CAPACITY

A

The principal must have contractual capacity; the agent only needs minimal capacity. AGENT DOES NOT NEED TO HAVE CAPACITY. Note: need of license or dual representation

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4
Q

AGENCY CONSENT

A

Consent must be manifested by both the principal and the agent. Agent must be acting primary for the principals benefit (SURETY - MAIN PURPOSE)

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5
Q

AGENCY WRITING & CONSIDERATION

A

NOT REQUIRED. BUT EQUAL DIGNITY RULE FOR SOF. CONSIDERATION IS PRESUMED

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6
Q

AGENT CONTROL

A

AGENT MUST BE SUBJECT TO PRINCIPAL’S CONTROL

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7
Q

AGENCY FORMATION

A

BY ACT:
- ACTUAL
- APPARENT
BY LAW: ESTOPPEL/DETRIMENT

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8
Q

AGENCY ACTUAL AUTHORITY

A

EXPRESS OR IMPLIED Actual authority is authority that the agent reasonably thinks she possesses based on the principal’s dealings with her -
- YOU CAN DO THIS

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9
Q

AGENCY ACTUAL AUTHORITY TYPES

A

EXPRESS: Authority conveyed by the principal in words (oral or written).
IMPLIED: Authority the agent reasonably believes she has as a result of the principal’s actions

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10
Q

AGENCY ACTUAL AUTHORITY IMPLIED CASES

A

Emergency, Incidental, Custom. Dealings, Payment and delivery, Warranties/covenants, Manage

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11
Q

AGENCY APPARENT AUTHORITY

A

Exists when the principal “holds out” another as possessing authority and a third party is reasonably led to believe that authority exists.
NOTE: apparent authority may exist when NO actual authority exists.

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12
Q

AGENCY FORMS OF APPARENT AUTHORITY

A

1- By power of position
2- By Unilateral Principal’s Representation
3- Lingering Apparent Authority
4- Ratification: Principal binds

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13
Q

AGENCY RATIFICATION

A

a) Express: Oral or written confirmation

b) Implied: Accepts benefits of K

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14
Q

REQUIREMENTS OF AGENCY RATIFICATION

A

i. All material facts
ii. Accept whole transaction
iii. May not alter rights of intervening parties

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15
Q

AGENCY TERMINATION

A

UNILATERAL OR BILATERAL

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16
Q

UNILATERAL AGENCY TERMINATION

A

a) after a specified time or event, or
b) after a reasonable time (if there is no specified time or event);
c) by a change of circumstances
d) by a breach of the agent’s fiduciary duty;
e) by a unilateral act of either the principal or the agent; or
f) by death or incapacity of the principal or the agent.

17
Q

BILATERAL AGENCY TERMINATION

A

There are two types of agency relationships that may not be unilaterally terminated by the principal (and that generally are not terminated by operation of law where:

i. the agent/third party has an interest in the subject matter of the agency (protect rights), or
ii. a power is given for security.

18
Q

AGENTS DUTIES

A

LOYALTY: DISCLOSE ADVERSE INTERESTS
OBEDIENCE: LAWFUL INSTRUCTION
REASONABLE CARE: BJR
DUTIES UNDER K

19
Q

PRINCIPALS DUTIES

A

COMPENSATE - REIMBURSE (EXPENSES, LOSSES, WORK)
COOPERATE -CARRY OUT FUNCTIONS
DUTIES UNDER K

20
Q

SUBAGENT DUTIES

A

W/ AUTHORITY: BREACHES OF SUB-AGENT EVEN IF GF AND DILIGENT
W/O AUTHORITY: SUBAGENT OWE NO DUTIES TO PRINCIPAL. AGENT ALONE IS RESPONSIBLE
a. Liability of Agent: Absolute
b. Duties: Sub-agent owes same duties to principal

21
Q

AGENCY REMEDIES PRINCIPAL

A

BREACH OF K, TORT (NEGLIGENT/INTENTIONAL -WITHOLD COMPENSATION - OR NON-PERFORMANCE), BREACH OF FIDUCIARY DUTIES (SECRET PROFITS), ACCOUNTING ACTION, TERMINATION OF AGENCY

22
Q

AGENCY REMEDIES AGENT

A
  • K
  • Tort
  • Constructive Trust (POSSESSORY LIEN)
  • Secretly Profits
  • Withhold compensation
  • Terminate agency
23
Q

REAL ESTATE AGENCY (BROKER)

A

a. Non-exclusive: Compensation upon ready, willing and able buyer.
b. Exclusive: Gets commission if anyone gets ready, willing and able buyer.

24
Q

CONTRACT LIABILITY (AGENCY)

A
  1. Third Party v. Principal
  2. Third Party v. Agent—whether disclosed, unidentified, or undisclosed.
  3. Principal or Agent v. Third Party— Disclosed or undisclosed
  4. Warranties/Covenants: personal and real property
  5. Payment: cash and no credit
  6. Delivery: An agent may deliver possession upon receipt of payment.
25
Q

AGENCY TORT LIABILITY (FOUR ACTORS)

A

MASTER
SERVANT
EMPLOYER/EMPLOYER BY ESTOPPEL
INDEPENDENT CONTRACTOR

26
Q

AGENCY TORTS MASTER

A

A master (i.e., an employer) is a principal who employs an agent to perform service in his affairs and who controls or has the right to control the physical conduct of the other in the performance of the service.

27
Q

AGENCY TORTS SERVANT

A

A servant (i.e., an employee) is an agent so employed by a master. If controlled as to MEANS then employee.

28
Q

AGENCY TORTS BORROWED SERVANT

A

An employer may lend the services of an employee to another. The key issue is who has the primary right of control over the employee—the loaning principal or the borrowing principal? That employer is liable.

29
Q

TORT RESPONSIBILITY INDEPENDENT CONTRACTOR (AGENCY)

A

An independent contractor is a person who contracts with another to do something for him but who is not controlled by the other nor subject to the other’s right to control with respect to his physical conduct in the performance of the undertaking. If controlled as to RESULTS then independent.

30
Q

FACTORS FOR INDEPENDENT CONTRACTOR

A
  • Skill required: greater more independent
  • Tools and facilities: who provides
  • Period of employment: long v short
  • Basis of compensation: time v. job
  • Business purpose: in furtherance or principals business?
  • Distinct business: own business or occupation
31
Q

RESPONDEAT SUPERIOR

A
  1. Employer/Employee Relationship
  2. Conduct Within Scope of Employment
  3. Apparent authority
32
Q

RESPONDEAT SUPERIOR RELATIONSHIP

A

CONTROL OVER MANNER AND METHOD (IF ONLY RESULT NO RS)

33
Q

EXCEPTIONS TO RESPONDEAT SUPERIOR

A

(1) inherently dangerous activities
(2) nondelegable duties
(3) knowingly selected incompetent contractor.

34
Q

SCOPE OF EMPLOYMENT

A
  1. NATURE OF WORK
  2. REMOVED IN TIME LIMITS
  3. IF DONE FOR EMPLOYER
35
Q

FROLIC

A

MAJOR DEPARTURE FROM THE SCOPE OF EMPLOYMENT - NOT LIABLE

36
Q

DETOUR

A

MINOR DEPARTURE - LIABLE

37
Q

CONDUCT THAT IS GENERAL CONSIDERE TO BE FOR EMPLOYER

A

PASSENGERS
AUTHORIZED INSTRUMENTALITIES
TWO PURPOSES (QUI BONO)

38
Q

RS APPARENT AUTHORITY

A

A principal is liable where an agent appears to deal or communicate on behalf of the principal and the agent’s apparent authority enables the agent to (1) commit a tort or (2) conceal its commission.

AGENCY AND PARTNERSHIP (2 decks)

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