Kaplan Agency pgs 4-32 Flashcards
Is knowledge of an agent imputed to the principal?
Yes
Can an incompetent person act as a principal?
No
Can a minor act as a principal?
Only if he’s contracting for necessaries
What is the standard for who can be an agent?
Anyone with minimum mental capacity, so both minors and incompetence can be agents. They are endowed with the same capacity as the principal
Is it possible to serve as an agent for two adverse parties to a transaction question
Only if they are both fully advised and give their consent
Can statements of an alleged agent that are made out of court be admissible to prove agency?
Generally no, but they can be admissible after a prima facie proof of the agency has been made
What is the Family Purpose Doctrine and does California follow it?
This imposes vicarious liability on the owner of a motor vehicle for the negligence or wilful misconduct of an immediate family member that comes from their permissive use of a motor vehicle. California does not follow this
What is a power of attorney?
Written documentation of an agency relationship that authorize one person to act on behalf of another
What is an attorney in fact?
An agent acting under the authority granted by a power of attorney
What is a springing power of attorney?
A power of attorney that only takes affect upon some puncture event or contingencies
What is durable power of attorney?
The authority of the agent to make decisions for the principal continues to be affected even if the principal becomes incapacitated
What is the difference between general power of attorney and special power of attorney?
– General: this grant the agency authority to do all acts that a principal could ordinarily do
– special: grants an agent limited authority to do certain acts that are specified. I.e.: a health-care power of attorney allows the attorney in fact to make healthcare decisions for the principal
If someone authorizes more than one person to serve as his attorney in fact, how does that work?
Each attorney in fact can act independently of the other, unless the document that gave them powers said otherwise
Generally a principal’s death or incapacity terminates an agency relationship, but this doesn’t happen until what occurs?
The attorney in fact receives actual knowledge of the change in circumstances. Until then, if his act is done in good faith, it binds the principal and the principal‘s estate
What is a special agent?
Someone who has authority to bind the principle only for one transaction, and no authority to bind him beyond the terms of that specific authority. I.e.: a home seller engages a real estate agent to sell his home, but to do nothing else.
What are examples of special agents?
– Real estate agents: can only sell your real property
– sales people: can only sell and warrant goods
– auctioneers: can only sell goods to the highest bitter
What is a sub agent?
Someone that is entitled to do the work for the original agent which creates a new agency relationship where the original agent becomes a principal to the sub agent. The sub agent has the same responsibilities that the original agent has
Where does liability follow with regard to sub agents?
The original agent is liable to the principal for any breach of duty of the sub agent, but the original agent is not responsible to third persons for the acts of the sub agent
If a sub agent is appointed without the principles authority, is there a relationship between the principal and the sub agent question
No
If a property owner hired a contractor to build a new building, and the contractor hires a plumbing company to do the pipes, what is the relationship between the plumbing company and the contractor and the property owner?
The plumbing company is a sub agent so they are the agent of the contractor, but they are not an agent of the principal
What is a creek gratuitous agent?
Someone who agrees to perform all the duties without compensation
What are the duties of a principal to his agent?
– compensate for services rendered – reimbursed for expenses incurred – indemnify and exonerate for liability in a good faith performance of duties – cooperate with the agent – due care toward the agent
What are the remedies of an agent if a principal breaches?
– Contract remedies for breach of contract
– lien on the principles property that the agent has lawful possession of
– set off of any money that is owed to him against money that was collected on his behalf
What are the defences that a principal can use against his agent?
Dash SOF
– illegality
– the agent disobedience
– the agents contributory negligence
What are the things involved in an agents duty of care?
Dash to perform his duties with reasonable care
– to obey all reasonable directions
Just to act within the scope of his actual authority
– to act with care, competence, and diligence, and if he has higher levels of skills, to exercise those higher levels
– to indemnify the principal against lost cause because of his wrongful behaviour
What are the fiduciary duties that an agent Oso his principal question
Duty of loyalty, good faith, and honesty, duty of care, confidential Aliti, to avoid self dealing, not to compete, dutyto account, duty of candor,
What is example of usurpation of a business opportunity question
If your law firm sent you to look for new office space, and you find a cheap wonderful space that would be good for the business that your wife is starting, and you arrange for your wife to use the space, that is super usurpation of a business opportunity
What is involved in the duty of confidentiality for agents?
You cannot use confidential information that you’ve got from the principal against the principal, and this continues even after the agency relationship is terminated
How are noncompetition agreement treated in California?
They are rarely enforceable. Broad covenant not to compete or void in California unless they involve:
– the person selling the goodwill of a business
– a person agreeing not to compete in anticipation of dissolution of a partnership
– if it is necessary to protect trade secrets
What is involved in the agents duty to account?
He must account for money or property that he got for the principal and he must keep those assets separate from his own
If an agent ask for more than one principal in negotiations between multiple principles, and one of the principles did not know about the dual representation, what happens question
The transaction is voidable by that principle
What are the remedies that a principal can get if an agent reaches his fiduciary duties?
– The agent is liable for damages
– the principal can void transactions that resulted from the breach
– the agent must discord any profit that he made from his disloyalty and his liable for the profits of third parties if others have benefited
– if the agent intentionally breached his fiduciary duty, the principal can withhold compensation
If an agent enters a contract on behalf of an undisclosed or partially disclosed principal, who is liable on the contract?
The agent
What is the smart way for an agent to avoid assuming personal liability on contracts?
He said sign any documents with his own name and the principles name and make a notation that he is acting as an agent
In what circumstances an agent have the power to disobey his principles instructions?
If it is clearly for the interest of his principal and there is no time to communicate with the principal
Usually ratification is effective as if the act were originally done by the agent with actual authority, but what is the timing for effectiveness if a principal did not have capacity when the transaction took place?
Then it only affected from the date of ratification
Is it possible for a principal to ratify just part of an act question
No, if you ratified any part that is deemed to be a ratification of the whole
What are the conditions that are necessary for ratification to be effective question
– The act must’ve been valid at the time it was performed
– principal had to have been in existence when the act was performed and was legally competent when he tries to ratify
– the act had to have been performed for the principal
– ratification needs the same formalities that would’ve been required for an initial authorization
– at the time of ratification, the principle must know all material facts about the transaction
Who can hold a third-party liable and enforce a contract depending on whether the principle is disclosed, underscores, or partially disclose?
That’s disclosed: only the principal can enforce the contract
– underscores and partially disclosed: either the principal or the agent can enforce the contract
Does respond yet superior make the employer the only person that is liable?
No, the liability of the employer is in addition to come at night instead of, the employees liability. Usually the employer and employee are jointly and severally liable
How do you determine if an act of an employee was committed during the scope of his employment?
– The act was required by the employer
– it was incidental to the employees duties
– it was reasonably foreseeable by the employer
What is the difference between frolic and detour with regard to respond yet superior?
That frolic is a substantial deviation from the scope of employment and it will not result in vicarious liability for the employer
– detour: is a slight deviation from the scope of employment and it will result in vicariously ability
What is an example of frolic with relation to respond yet superior?
If a mechanic employee picked up a vehicle for repairs instead of driving it to the garage, got an accident while he was going to opposite way to his home for breakfast
When will an employer be liable for an employee’s intentional tort question
Only if it had a causal nexus to the employees work. This means that the injury causing act must be a generally foreseeable consequence of the employers enterprise
How is knowledge imputed between a principal and an agent?
The principle is deemed to have notice of whatever knowledge that his agent has noticed of, but knowledge is not imputed from the principal to the agent
What is the college of the agent is not imputed to the principal?
If the agent was acting adversely to the principal and for his own or someone else’s benefit
Generally agency relationships are terminated voluntarily at will at any time, but in what two situations can agency not be terminated?
- if it is coupled with an interest
– if the agent has power given for security
Generally in order for termination of an agency relationship to be effective, what must happen?
Notice must be given unless the agency naturally expires at the end of a time or after an action
