Agency/Partnerships Flashcards
Elements of vicarious liability
- Existence of agency relationship
2. Tort within scope of relationship
Elements of agency relationship
- Assent
- Benefit
- Control (power to supervise manner of performance)
Exceptions to ‘independent contractor’ exception
Inherently dangerous activity
or
Estoppel
(held out with the appearance of agency –> estopped from denying liability)
Intentional torts - exception to rule that P not liable
Authorized by P or Natural from nature of employment/agency or Motivated by desire to serve P
Scope - tests
- Conduct ‘of the kind’ hired to perform
- Tort occurred ‘on the job’
(frolic / detour) - Intended by agent to benefit P
P liability for A’s contracts - 4 situations
Actual express authority or Actual implied authority or Apparent Authority or Ratification
Actual express authority - oral?
Yes unless contract itself must be in writing. (Statute of Frauds)
Actual express authority - revocable
Yes, by P or A.
Terminates upon death unless POA provides survival.
NY POA survives as default.
Actual implied authority - 3 types
Necessity (to accomplish actual express authorized task)
Custom (by persons with A’s title/position
Prior dealings (A believes are authprized from prior acquiescence)
Apparent authority - 2 elements
P cloaks A with appearance of authority
and
3rd party relies on appearance
Ratification - 2 elements and NY
P has knowledge of all material facts
and
P accepts benefit
NY No ratification if P changes any of the terms
No agent liability for contract - 1 exception
“Undisclosed Principal” –>
A or P liable, at 3rd party election
Agent’s duties - 3
Duty of Care
Duty to Obey (instructions that are reasonable)
Agent’s Duty of Care - 3 types
- Self-dealing - Agent benefits self to P’s detriment
- Usurping P’s opportunities
- Secret undisclosed profit on resale
Remedies for breach of Agent Duty of Loyalty
- Recover losses
2. Disgorge profits
