Agency general pt 2

Question 1

The agents liability to third parties

If an agent contracts with a 3rd party on behalf of a disclosed principal, the agent

Answer 1

is not liable on the contract absent a contrary agreement

Question 2

The agents liability to third parties

The court normally require clear proof

Answer 2

of intent to bind the agent

Question 3

The agents liability to third parties

teh agent if not liable unless there is clear and explicit evidence of the agents

Answer 3

intention to substitute or superadd his own personable liability, for, or to, that of its principal

Question 4

The agents liability to third parties

When an agent contracts on behalf of a paritally disclosed or undisclosed principal, the agent is normally

Answer 4

liable on the contract

Question 5

The agents liability to third parties

An agent who purports to act on behalf of a principal impliedly warrents that

Answer 5

he has authority unless he disclaims the existance of such a warranty of the third party knows that he lacks authoruty

Question 6

The agents liability to third parties

if the agent lacks the power to bind the princiapal, the 3rd party may sue

Answer 6

the agent for breach of warrenty of authority or misrepresentation of authority

Question 7

Unless the contract provides to the contrary, if an agent acting for a disclosed or partially disclosed principal has authority, the 3rd party is

Answer 7

bound as well as the principal

Question 8

When the principal is undisclosed and where the agent has authority, the 3rd party is bound to the contract unless:

Answer 8

1. the principals existance is fraudualently concealed, or
2. 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

Question 9

An undisclosed principal cannot require that a 3rd party accept the principals performance instead of the agents if this substitution substantially

Answer 9

changes the performance contemplated by the contract

Question 10

An undisclosed principal may not require that a 3rd party render performance to the principal if such performance substantially

Answer 10

changes the nature of the 3rd party’s obligation

Question 11

Pursuant to the doctrine of respondeat superior, a principal who is a “master” is responsible for the torts of “servents” acting

Answer 11

within the scope of their employment

Question 12

A master is a principal who

Answer 12

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 13

The agent so controlled is called a

Answer 13

servent

Question 14

A servent is to be contracted with an

Answer 14

independant contractor

Question 15

independant contractor

Answer 15

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

Question 16

Whereas a servant is always an agent, an independant contractor

Answer 16

may or may not be an agent

Question 17

With few exceptions, a principal is not responsible for the torts of

Answer 17

Independent contractor agents

Question 18

An employee is an agent whose

Answer 18

principal controls or has the right ot control the manner and means of the agents performance of work

Question 19

nonemployee agents are essentially

Answer 19

independant contractor agents

Question 20

Under R3A there is still areas where principal may be liable for the torts of

Answer 20

nonemployee agents

Question 21

Princiapals are always responsible for

Answer 21

their own misconduct

Question 22

A principal is liable for the torts of his agent if the agent acts

Answer 22

under his direction and the principal intends the conduct or its consequences

Question 23

A principal is liable for torts commited by an agent acting with

Answer 23

actual authority or whose acts the principal has ratified

Question 24

Agents are responsible for their own

Answer 24

torts

Question 25

If a 3rd party sues and defeats a principal based on an agents misconduct,

Answer 25

the principal has a right of indemnity against the agent

Question 26

The nature and extent of the relationship is not controlled by

Answer 26

discriptive labels employed by the parties themselves

Question 27

Whether one party is a mere agent rather than an independant contractor as to the other party is to be determined by

Answer 27

measuring the right to control and not by considering only the actual exercised by the latter over the former

Question 28

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

Answer 28

is not an independant contractor

Question 29

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?

Answer 29

Liablitity should by allocated to the employer in the best position to take measures to prevent the injury suffered by the 3rd party

Question 30

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

Answer 30

an employees conduct

Question 31

When both a general and special employer have the right to control an employees conduct, the practical history of direction may establish that

Answer 31

one employer, in factm ceded its right of control to the other, whether through its failure to exercise the right or otherwise

Question 32

6 Factors to determine if a general or special employer, or both have the right to control an employees conduct:

Answer 32

1. The extent of control that an employer may exercise over the details of an employee's work and timing of the work 2. the relationship between the employees work and the nature of the special employers business 3. the nature of the employees work in the special employers firm 4. the identity of the employer who furnishes equiptment or other instrumnetalities requisite to performing the work 5. the method of payment for the work

Question 33

# general v. special employer liability Many cases allocate liabllity on the basis that a general employer has an exclusive

Answer 33

right of control over employees assigned to work for clients of the general employer

Question 34

A general employer may be in a position to

Answer 34

1. screen prospective employees to determine their general aptitude and fitness 2. provide training to those it selects for employment 3. furnish equiptment and impose requirements for the proper usage and maintance of the equiptment 4. provide insurance coverage for the employees actions

Question 35

Any presumption that a general employer has the right to control an employee may be rebutted by proving

Answer 35

factual indica that the right to control has been assumed by a special employer

Question 36

A significant number of cases allocate liability to special employers on the basis of its

Answer 36

right and ability to direct a borrowed employees specific actions in its workplace

Question 37

A special employer may be in the best position to

Answer 37

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

Question 38

Some cases allocate liability to both general and special employer on the basis that both

Answer 38

exercised control over the employee and both benefitted in some degree from the employees work

Question 39

gig economy or on demand platform economy

Answer 39

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

Question 40

Are workers in a gig economy employees or independant contractors? 10 factors

Answer 40

1. The extent of control which by the agreement, the master may exercise over details of the work 2. whether or not the one employed is engaged in a distinct occupation or business 3. 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 4. the skill required in the occupation 5. whether the employer or the workman supplies the instrumentalitiesm tools, and the place of work for the person doing the work 6. the length of time for which the person is employed 7. the method of paymnet, whether by time or by job 8. whether or not the work is part of the regular business of the employer 9. whether or not the parties believe they are creating the relation of master and servent 10. whether the principal is or is not in business