can I get a wha wha Flashcards
Respondeat Superior/ Vicarious Liability
two aprt test: 1. principal-agent relationship and 2. tort was committed bt tthe agent wihtin tthe scope of that relationship
The Prcipal agent relationship
Assent, benefit, control
Assent
informal agreement between principal who has capacity and agent
benefit
agents confuct must be for principal’s benefit
Control
principal musth ave right to control the agent
sub-agent: will principal be civariously liable?
only if there is assent, benefit and control between principal and sub agent tort-feasor; principal typically does not assent and does not have right to control so usually no VL
Borrowed agent: will principa who borrows another principals aetn be VL for borrowed agent’s tort?
only if there is assent, benefit, control between borrowing principal and borrowed agent
typicallt, no right to control so no VL
Agents v. IC
distinction: no right to control an IC because no power to supervise
- no CL for torts
Exceptions:
1) inherently dangerous activities
2) estoppel: if you hold out IC with appearanceo f afency you will be estopped form denying liability
Scope of Principal-Agent Relationship Factors
- of the kind hired to perform? in job description?
- frolic or detour? Frolic = a new and independent journey. Detour = mere departure from assigned task
- intend to benefir principal? if even in part, then in scope
Intentional torts and exceptions
not liable
exceptions:
- authorized by principal
- conduct was natrual from nature of employment
- motivated by desire to serve principal
Liability of Principal for Contracts entered by Agents
TesT: Is liable for contracts entered into by agent only id the principal authorized the afent to enter the contract
- four types of authorrity: actual express, actual implied, apparent, ratification
actual express
- used words to express authority
- can be oral and private
- narrowly construed
Exception:
if contract itself msust be inwritign then express authority must also be in writing ie. land sale
Revoked by:
- unilateral act od either the principal or the afent or
- death or incapacirt of the principal
Exception to revocation : if principal giced agent durable power of authority to written expression for clear survival of death.
Actual Implied Authority
Auhtority which gives auhtority through conduct or circumstance: necessity, custom, prior acquiesence by principal
Necessity
implied auhtority to do all the tasks which are necessary to accomplish expressly auhtoprized task
Custiom
implied auhthorit to do all tasks which by ciustom arep erformed by persons with agents title or position
Prior Acquiescence by principal
implied authority to do all the tasks which afent leaves to authroized by prior acquiesence
- prior silence to raks counts
Apparent Authority
Two part tesT: 1. Principal cloaked agent wiht appearanceof authority and 2. 3P rasonably relies on appearance of authority
Ratificaiton
Authority can be granted after the L has been entered if:
1. prinicpal has knowledge of all material facts regarding the K and
2, Principa laccepts its benefits
3. Exception: cannot alter terms of the K
Rules ofLiabilty on the K
Principal is liable on authorized K and therfore as a rule authorized adent is not liable on authorized K
Exception: the undisclosed principal - if principal is partially discles or undisclosed , authorized afent may nonetheless be liable at the election of 3p (3P chooses who to sue!)
Duties owed to Principal and remedies
- duty of care
- duty to obey instructions that are reaosnable
- duty of loyalty
Princpal’s remedu: may recover losses caused by breach and alsoe dislodge profits made by breaching agent
Duty of Loyalty
never do any of the following:
1. self dealing - agent cnanot receive benefit to detrimen of principal
- usurping the principal’s opportunity
- secret profits - making a profir at the principal’s expense without disclosure
Partnership formation and Defijition
Formaiton: no formalities
Definition: a GP us an association of 2 or more persons who are carrying on as co ownderso f a buisiness for profit
Sharing of proits is a key factor:
-contribution of movney capitol or sercices creates a peresumption that GP exists by salart doesn’t; have to have share in profit
Liabilitues of GP to 3P
- aprteners are afents of the partnership for apparently carryong on usual partnership business
- therefore, the fenetal partnership is liable for each partner’s torts in the scope of partnership business and for eacgh partner’s authroized K
GP liabilty for debts
incoming partner?
Dissociating partner?
Each General Partner is personally liable dor al lDebts of the Partnership and for each co-partnerts torts
- incoming parnet’s not liable for prior debts but any monet brought i nby new partner can be used to satisfy those debts
- dissosicating partners retain liabolity on all future debts until actual norice of dissociation is fgiven to credityos or until 90 days after filing notice of disocciation to the state
