Agency and Negligence

Question 1

who is the contract between?

Answer 1

the principal and the third party

Question 2

what does by estoppel mean?

Answer 2

when the principals behaviour gives the third party the impression that the agent has authority= the agent is ‘held out’

Question 3

what does by ratification mean?

Answer 3

the relationship can be created with the retrospective effect

Question 4

what is apparent or obsensible authority?

Answer 4

where principal has previously made representations to a third party that the agent has power to bind.

Question 5

when is the general rule in terms of who gets sued?

Answer 5

principal and third party as long as agent did what they were supposed to

Question 6

where the agent is not known to be an agent…

Answer 6

either the agent or principal may sue on the contract but the third party may choose which one

Question 7

where the agent has no authority…….

Answer 7

principal cannot sue or be sued unless he choose to ratify it

Question 8

what is tort of deceit

Answer 8

where the agent, knowing he has no authorty, makes a representation to the contrary and causes loss to the third party

Question 9

breach of warranty of authority

Answer 9

they genuinely believe they have authority but are mistaken

Question 10

in order to provide negiligence, the claimant must prove on the balance of probabilities the following…

Answer 10

• a duty of care was owed
• there has been a breach of that duty of care
• the breach of duty caused the harm to the claimant

Question 11

4 tests for duty of care?

Answer 11

-reasonable forseeability
-proximity
fair just and reasonable
-public policy

Question 12

what is the standard duty of care owed in any circumstance?

Answer 12

‘a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs’

Question 13

standard of duty of care is adjusted for what?

Answer 13

• particular skill i.e an accountant
• lack of skill
• no hindsight
• body of opinion= o breach if body of opinion with supposrts their professional actions
• emergency
• vulnerability= if someone is vulnerable a higher duty of care is expected
• advanatge vs risk i.e think a fire engine speeding

Question 14

what must a claimant prove?

Answer 14

that ‘but for’ the defendants actions damages/loss would not have happened

Question 15

damages for negligence are intended to….

Answer 15

but the claimant back in the same position had they not suffered the loss

Question 16

losses mustve been…

Answer 16

forseeable, not too remote/ too far down the chain of causation

Question 17

what will not give rise to a duty of care…..

Answer 17

if it just audited accounts which someone is looking at and making a decisions from and the accountant didint know they were going to use them for that BUT if they knew they were going to rely on it then there is a duty of of care

Question 18

takeover bids and duty of care

Answer 18

if known takeover bid, accountant will have duty of care . IF

• bidder had been identifiied to them
• was intended that bidder should rely on the accounts
• express representation had been made to the bidder by the defenddant

Question 19

contirbutory negligence

Answer 19

where they can show that the damage was partly the claiamnts fault

Question 20

volenti non fit injura

Answer 20

where the claimant voluntarily agrees to undertakw rhw legal risk of loss or damage at his own expense

Question 21

limitiation act

Answer 21

6 years from breach of contract or damage cause by tortious act- reduced to 3 years for personal injury

Question 22

example of vicarious liability?

Answer 22

employer held liable for tortious act of employee= as long as they hadnt gone rogue
principal as long as agent not gone rogue
partners as long as not gone rogue