Agency general pt 2 Flashcards
The agents liability to third parties
If an agent contracts with a 3rd party on behalf of a disclosed principal, the agent
is not liable on the contract absent a contrary agreement
The agents liability to third parties
The court normally require clear proof
of intent to bind the agent
The agents liability to third parties
teh agent if not liable unless there is clear and explicit evidence of the agents
intention to substitute or superadd his own personable liability, for, or to, that of its principal
The agents liability to third parties
When an agent contracts on behalf of a paritally disclosed or undisclosed principal, the agent is normally
liable on the contract
The agents liability to third parties
An agent who purports to act on behalf of a principal impliedly warrents that
he has authority unless he disclaims the existance of such a warranty of the third party knows that he lacks authoruty
The agents liability to third parties
if the agent lacks the power to bind the princiapal, the 3rd party may sue
the agent for breach of warrenty of authority or misrepresentation of authority
Unless the contract provides to the contrary, if an agent acting for a disclosed or partially disclosed principal has authority, the 3rd party is
bound as well as the principal
When the principal is undisclosed and where the agent has authority, the 3rd party is bound to the contract unless:
- the principals existance is fraudualently concealed, or
- the 3rd party is induced to enter into the contract by a representation that the agent was acting for himself and the agent or principal has notice that the 3rd party would not have dealt with the principal
An undisclosed principal cannot require that a 3rd party accept the principals performance instead of the agents if this substitution substantially
changes the performance contemplated by the contract
An undisclosed principal may not require that a 3rd party render performance to the principal if such performance substantially
changes the nature of the 3rd party’s obligation
Pursuant to the doctrine of respondeat superior, a principal who is a “master” is responsible for the torts of “servents” acting
within the scope of their employment
A master 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
The agent so controlled is called a
servent
A servent is to be contracted with an
independant contractor
independant contractor
A person who contracts with another to do something for him but who is not controlled by the other nor subject to the others right to control with respect to his physical conduct in the performance of the undertaking
Whereas a servant is always an agent, an independant contractor
may or may not be an agent
With few exceptions, a principal is not responsible for the torts of
Independent contractor agents
An employee is an agent whose
principal controls or has the right ot control the manner and means of the agents performance of work
nonemployee agents are essentially
independant contractor agents
Under R3A there is still areas where principal may be liable for the torts of
nonemployee agents
Princiapals are always responsible for
their own misconduct
A principal is liable for the torts of his agent if the agent acts
under his direction and the principal intends the conduct or its consequences
A principal is liable for torts commited by an agent acting with
actual authority or whose acts the principal has ratified
Agents are responsible for their own
torts
If a 3rd party sues and defeats a principal based on an agents misconduct,
the principal has a right of indemnity against the agent
The nature and extent of the relationship is not controlled by
discriptive labels employed by the parties themselves
Whether one party is a mere agent rather than an independant contractor as to the other party is to be determined by
measuring the right to control and not by considering only the actual exercised by the latter over the former
If the employers right to control the activities of an employee extends to the manner in which a task is to be performed then the employee
is not an independant contractor
If a borrowed servent or employee commits a negligent act within the scope of employment, will liablity be imposed on the lending employer, the borrowing employer or both?
Liablitity should by allocated to the employer in the best position to take measures to prevent the injury suffered by the 3rd party
Liablitity should by allocated to the employer in the best position to take measures to prevent the injury suffered by the 3rd party
- an employer is in that position if the employer has the right to control
an employees conduct
When both a general and special employer have the right to control an employees conduct, the practical history of direction may establish that
one employer, in factm ceded its right of control to the other, whether through its failure to exercise the right or otherwise
6 Factors to determine if a general or special employer, or both have the right to control an employees conduct:
- The extent of control that an employer may exercise over the details of an employee’s work and timing of the work
- the relationship between the employees work and the nature of the special employers business
- the nature of the employees work in the special employers firm
- the identity of the employer who furnishes equiptment or other instrumnetalities requisite to performing the work
- the method of payment for the work
general v. special employer liability
Many cases allocate liabllity on the basis that a general employer has an exclusive
right of control over employees assigned to work for clients of the general employer
A general employer may be in a position to
- screen prospective employees to determine their general aptitude and fitness
- provide training to those it selects for employment
- furnish equiptment and impose requirements for the proper usage and maintance of the equiptment
- provide insurance coverage for the employees actions
Any presumption that a general employer has the right to control an employee may be rebutted by proving
factual indica that the right to control has been assumed by a special employer
A significant number of cases allocate liability to special employers on the basis of its
right and ability to direct a borrowed employees specific actions in its workplace
A special employer may be in the best position to
exercise control in a manner that reduces the risk of injury to 3rd parties
- expecially, when the nature of a borrowed employees work requires coordinated effort as part of a skilled team and close direction or supervision by the teams leader
Some cases allocate liability to both general and special employer on the basis that both
exercised control over the employee and both benefitted in some degree from the employees work
gig economy or on demand platform economy
where workers may accept or reject assignments from a variety of people or firms who seek their services on an as-needed basis
ex. uber/lyft
Are workers in a gig economy employees or independant contractors?
10 factors
- The extent of control which by the agreement, the master may exercise over details of the work
- whether or not the one employed is engaged in a distinct occupation or business
- the kind of occupation, with refrence to whetherm in the locality, the work is usually done under the direction of the employer or by a specialist without supervision
- the skill required in the occupation
- whether the employer or the workman supplies the instrumentalitiesm tools, and the place of work for the person doing the work
- the length of time for which the person is employed
- the method of paymnet, whether by time or by job
- whether or not the work is part of the regular business of the employer
- whether or not the parties believe they are creating the relation of master and servent
- whether the principal is or is not in business
