AGENCY

Question 1

DEFINITION OF AGENCY

Answer 1

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.

Question 2

ELEMENTS OF AGENCY

Answer 2

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

Question 3

AGENCY CAPACITY

Answer 3

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

Question 4

AGENCY CONSENT

Answer 4

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

Question 5

AGENCY WRITING & CONSIDERATION

Answer 5

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

Question 6

AGENT CONTROL

Answer 6

AGENT MUST BE SUBJECT TO PRINCIPAL’S CONTROL

Question 7

AGENCY FORMATION

Answer 7

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

Question 8

AGENCY ACTUAL AUTHORITY

Answer 8

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

Question 9

AGENCY ACTUAL AUTHORITY TYPES

Answer 9

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

Question 10

AGENCY ACTUAL AUTHORITY IMPLIED CASES

Answer 10

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

Question 11

AGENCY APPARENT AUTHORITY

Answer 11

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.

Question 12

AGENCY FORMS OF APPARENT AUTHORITY

Answer 12

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

Question 13

AGENCY RATIFICATION

Answer 13

a) Express: Oral or written confirmation

b) Implied: Accepts benefits of K

Question 14

REQUIREMENTS OF AGENCY RATIFICATION

Answer 14

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

Question 15

AGENCY TERMINATION

Answer 15

UNILATERAL OR BILATERAL

Question 16

UNILATERAL AGENCY TERMINATION

Answer 16

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.

Question 17

BILATERAL AGENCY TERMINATION

Answer 17

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.

Question 18

AGENTS DUTIES

Answer 18

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

Question 19

PRINCIPALS DUTIES

Answer 19

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

Question 20

SUBAGENT DUTIES

Answer 20

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

Question 21

AGENCY REMEDIES PRINCIPAL

Answer 21

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

Question 22

AGENCY REMEDIES AGENT

Answer 22

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

Question 23

REAL ESTATE AGENCY (BROKER)

Answer 23

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

Question 24

CONTRACT LIABILITY (AGENCY)

Answer 24

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.

Question 25

AGENCY TORT LIABILITY (FOUR ACTORS)

Answer 25

MASTER SERVANT EMPLOYER/EMPLOYER BY ESTOPPEL INDEPENDENT CONTRACTOR

Question 26

AGENCY TORTS MASTER

Answer 26

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.

Question 27

AGENCY TORTS SERVANT

Answer 27

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

Question 28

AGENCY TORTS BORROWED SERVANT

Answer 28

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.

Question 29

TORT RESPONSIBILITY INDEPENDENT CONTRACTOR (AGENCY)

Answer 29

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.

Question 30

FACTORS FOR INDEPENDENT CONTRACTOR

Answer 30

- 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

Question 31

RESPONDEAT SUPERIOR

Answer 31

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

Question 32

RESPONDEAT SUPERIOR RELATIONSHIP

Answer 32

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

Question 33

EXCEPTIONS TO RESPONDEAT SUPERIOR

Answer 33

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

Question 34

SCOPE OF EMPLOYMENT

Answer 34

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

Question 35

FROLIC

Answer 35

MAJOR DEPARTURE FROM THE SCOPE OF EMPLOYMENT - NOT LIABLE

Question 36

DETOUR

Answer 36

MINOR DEPARTURE - LIABLE

Question 37

CONDUCT THAT IS GENERAL CONSIDERE TO BE FOR EMPLOYER

Answer 37

PASSENGERS AUTHORIZED INSTRUMENTALITIES TWO PURPOSES (QUI BONO)

Question 38

RS APPARENT AUTHORITY

Answer 38

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.