Agency general pt 3

Question 1

Dual Purpose Rule Test

Conduct fo a servent is within the scope of employment, if, but only if:

Answer 1

1. it is of a kind he is employed to perform
2. it occurs substatially within the authorized time and space limits
3. it is actuated, at least in part, by a purpose to serve the master

Question 2

Conduct of a servent is not within the scope of employment if it is

Answer 2

different in kind from that authorize far beyond the authorized time or space limits, or too little actuated by a purpose to serve the master

Question 3

Principal intends conduct or consequences

a person is subject to liability for the consequences of anothers conduct which results from his directions as he would be for his own personal conduct if,

Answer 3

with knowledge of the conditions, he intends the conduct, or if he intends its consequences, unless the one directing or the one acting has privlege or immunity not available to the other

Question 4

A master is subject to liability for the torts of his servents committed while

Answer 4

acting in the scope of their employement

Question 5

A master is not subject to liability for the torts of his servents actingoutside the scope of their employment, unless:

Answer 5

1. the master intended the conduct or the consequences, or
2. the master wsa negligent or reckless, or
3. the conduct violated a non-delegable duty of the master, or
4. the servent purported to act or to speak on behalf of the principal and there was reliance upon apparent authority, or he was aided in accomplishing the tort by the existance of the agency relationship

Question 6

From the dual purpose rule it follows that the conduct of an employee, although done in part to serve the purposes of the servent or a third person may be

Answer 6

within scope of employment if the employers business actuates the employee to any appreciatable extent

Question 7

The mere facts that the primary motive of the servent is to benefit himself or a third person does not

Answer 7

cause the act to be outside the scope of employment

Question 8

detour v. frolic

Answer 8

detour: vicariously liable
frolic: not vicariouslt liable

Question 9

To be within the scope of employment, conduct must be of the

Answer 9

same general nature as authorized, or incidental to the conduct authorized

Question 10

In determining whether or not the conduct, although not authorized, is nevertheless so similar to or incidental to the conduct authoritzed as to be within the scope of employment, the following matters of fact are to be considered:

(10)

Answer 10

1. whether or not the act is one commonly done by such servents
2. the time, placem and purpose of the act
3. the previous relations between the master and the servent
4. the extent to which the business of the master is apportioned between different servents
5. whether or not the act is outside the enterprise of the master or, if within the enterprise, has not been entrusted to any servent
6. whether or not the master has reason to expect that such an act will be done
7. the similarity in quality of the act done to the act authorized
8. whether or not the instumentality by which the harm is done has been furnished by the master to the servent
9. the extent of the departure from the normal method of accomplishing an authorized redult, and
10. whether or not the act is seriously criminal

Question 12

Conduct not for purpose of serving master

Answer 12

an act of a servent is not within the scope of employment if it is done with no intention to perform it as part of the incident to a service on account of which he is employed

Question 13

Conduct actuated by dual purpose

Answer 13

conduct may be in scooe of employment, although done in part to serve the purposes of the servent or of a 3rd person

Question 14

Principal cannot or does not give required performance

Answer 14

act done or offered to be fone by an undisclosed principal which, if performed by person other then the agent, are not substantialy those which the contract contemplates are not effective as a performance or as a tender of performance of the contract

Question 15

Principal Disclosed

Answer 15

unless otherwise agreed, a person making or purporting to make contract with another agent for a disclosed principal does not become a party to the contract

Question 16

Principal partially disclosed

Answer 16

unless otherwise agreed, a person purporting to make a contract by another for a partially disclosed principal is a party to the contract

Question 17

Principal undisclosed

Answer 17

An agent purporting to act up on his own account, but in fact making a contract on account of an undisclosed principal, is a party to the contract

Question 18

When an agent with actual or apparent authority makes a contract on behalf of a disclosed principal:

Answer 18

1. The princiapl and hte 3rd party are parties to teh contract, and
2. the agent is not a party to the contract unless the agent and third party agrees otherwise

Question 19

When an agent acting with actual or apparent authority makes a contract on behalf of an unidentified principal

Answer 19

1. the principal and the third party are parties to the contract, and
2. the agent is party to the contract unless the agent and the 3rd party agree otherwise

Question 20

When an agent acting with actual authority makes a contract on behalf of an undisclosed principal

Answer 20

1. unless excluded by the contract, the principal is a party to the contract
2. the agent and the 3rd party are parties to the contract
3. the principal if a party to the contract, and the 3rd party have the same rights, liabilities, and defense against each other as if the principal made the contract personally

Question 21

A principal is subject to direct liability to a 3rd party harmed by an agents conduct when

Answer 21

1. the agent acts with actual authority or the principal ratifies the agents conduct anda. the agents conduct is tortious and
   b. the agents conduct, if that of the principal, would subject to the principal to tort liability or
   1. the principal is negligent in selecting, supervising, or otherwise controlling the agent or
   2. the principal delegates performance of a duty to use care to protect other persons or their property to an agent who fails to perform the duty

Question 22

A principal is subject to vicarious liability to a 3rd party harmed by an agents conduct when

Answer 22

1. the agent is an employee who commits a tort while acting within the scope of employment, or
2. the agent commits a tort when acting with apparent authority in dealing with a 3rd party or purportedly on behalf of the principal

Question 23

A principal is subject to liablity to a third party harmed by an agents conduct is within the scope of the agents actual authority or ratified by the principal and

Answer 23

1. the agents conduct is tortious or
2. the agents conduct, if that of the principal would subject the principal to tort liability

Question 24

The two most significant “scope of employment factors”

Answer 24

1. the extent to which the employees motive in commiting the tort was to further the employers interest and
2. the extent to which the emplouees tort was forseeable by the employer

Question 25

An employees criminal misconduct may also be found within the scope of his employment, although the more violent the act,

Answer 25

the less likely that the employee will be found to have acted to further the employers interest or that the employer could have forseen the act.

Question 26

Principal liability - Disclosed principal - partially disclosed/unidentified principal - undisclosed principal

Answer 26

* Disclosed Principal = Agent is not liable unless otherwise agreed * Partially Disclosed/Unidentified Principal = Agent is liable unless otherwise agreed * Undisclosed Principal = Agent is liable

Question 27

For the level of disclosure of the principal what do we care about?

Answer 27

If they know, not if they should know

Question 28

Liability as a lawyer on contract for client

Answer 28

Not liable, the third party knows the principals identity

Question 29

CEO liability for contract entered into by business

Answer 29

Not liabile for contract, although his name is in signature

Question 30

default rules for disclosure of prinicipal can be ___ if agreed otherwise

Answer 30

changed

Question 31

# Breach of Implied Warranty “Agent” is subject to liability for damages due to a breach of an implied warranty of authority for purporting to make a contract on behalf of the “Principal” if “Agent” did not have authority unless

Answer 31

* Principal ratifies or is held liable anyway under estoppel * Warranty is disclaimed * 3rd Party knew

Question 32

# 3rd party liability to the principal Disclosed Principal or Partially Disclosed/Unidentified Principal =

Answer 32

3rd party is bound to Principal if Agent had authority

Question 33

# 3rd party liability to the principal Undisclosed Principal

Answer 33

3rd Party is bound to Principal if Agent had authority with some some exceptions

Question 34

Assignment/Delegation of Duty Rules for Undisclosed Principa

Answer 34

* Can’t substitute Principal for Agent if it substantially changes the performance given to or obligations of the 3rd party * Can’t require 3rd party to render personal services to Undisclosed Principal

Question 35

Recission available for 3rd Party if misrepresentations + knowledge that 3rd Party wouldn’t deal with Principal

Answer 35

* Silence is not a false representation * Actual knowledge * Different price doesn’t mean they wouldn’t deal with the Principal

Question 36

3 ways principal is liabile to 3rd party

Answer 36

* Liable if Agent has authority * Liable if they ratify * Liable under estoppel

Question 37

2 ways agent liable to 3rd party

Answer 37

* On the contract - Disclosed, Partially Disclosed (or unidentified) and Undisclosed Analysis * For breaches of implied warranties and tortious misrepresentations

Question 38

2 ways 3rd party liability to agent/principal

Answer 38

* 3rd Party not required to deliver performance to Principal if it substantially changes or is for personal services * Recission rights for misrepresentation with knowledge

Question 39

Difference between being a party and being a beneficiary

Answer 39

* Beneficiary is not a party but have a vested interest (gets something out of it) * beneficiaries can be intended v. incidental (intended: if you are on your parents lease, life insurance; incidental from unintended consequences)

Question 40

An employer is subject to vicarious liability for a tort committed by its employee acting

Answer 40

within the scope of employment.

Question 41

Agents are always liable for

Answer 41

their own torts

Question 42

Masters are principals with a

Answer 42

high level of control (physical conduct).

Question 43

Servants are agents who are subject to a

Answer 43

high level of control (physical control) from their principals | ex. dress code, when they work

Question 44

Independent contractors may or may not be agents but they are NOT subject to a

Answer 44

high level of control (physical control) even if they are agents

Question 45

A master is a principal who employs an agent to

Answer 45

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 46

A servant is an agent employed by a master to

Answer 46

perform service in his affairs whose physical conduct in the performance of the service is controlled or is subject to the right to control by the master.

Question 47

An independent contractor is a person who contracts with another to do something for him but who is not

Answer 47

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. He may or may not be an agent

Question 48

# the fact that the employee is not paid the fact that work is performed gratuitously | ex. unpaid internship

Answer 48

does not relieve a principal of liability.