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Corpoorate Governance & Law > Law of Agency & Tort > Flashcards

Law of Agency & Tort Flashcards

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1
Q

Define an Agent

A

An agent is a person who acts on bealf of someone else to arrange a transaction with at third party.

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2
Q

What is a Principal?

A

A Principal is the person who engages an agent to act on their behalf.

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3
Q

True/False: A partner in a partnership business can act as an agent for the partnership.

A

True.

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4
Q

What 5 ways can an agency relationship be formed?

A
  1. Express Agreement
  2. Implied Agreement
  3. Ratification
  4. Estoppel
  5. Necessity
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5
Q

What is Agency by express agreement?

A

This is when an agency relationship is formed through agreement and mutual consent and the principal appoints the agent to undertake a specific function.

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6
Q

How can an agancy relationship be formed by express agreement?

A
  1. It can be a written contract between the principal & agent.
  2. It can be a verbal agreement between principal & agent
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7
Q

If the Principal in an agency agreement wants the agent to buy land for them, how must the relationship be formed?

A

The agent must be appointed by deed.

When an agent is appointed by deed, they are given Power of Attorney to

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8
Q

What is Agency by Implied agreement?

A

This is when an agency relationship is recognised in law without an express agreement, because of the conduct of the principal and agent.

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9
Q

What is Agency by Ratification?

A

This is when an agency relationship is formed retrospectivly by ratification by the principal.

Ratification means to give approval or make something valid.

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10
Q

When could an agency agreement by ratification occur?

A

When a person who does not have actual authority as an agent, negotiates and agrees a transaction with a third party, claiming to be the principal of a named person. The Principal then decides to accept this agreement, giving ratification to the agency agreement.

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11
Q

What are the 4 requirements for an agency by ratification to be valid by law?

A
  1. The principal must ratify the relationship within a reasonable time.
  2. The principal must accept the entire agreement, not just parts.
  3. The person claiming to be the agent must name the principal they are claiming to act for.
  4. The principal must have existed at the time that the agent acted.
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12
Q

What is agency by Estoppel?

A

An agency relationship is formed after a principal misled a third party to believe another was acting on their behalf and made an agreement. The principal is estopped from denying the relationship exists.

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13
Q

What is agency by necessity?

A

When there is no formal agreement between 2 people but an emergency arises that requires an agent to protect the interests of a principal.

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14
Q

What 4 conditions must apply for Agency by necessity to exist?

A
  1. The agent by necessity is in possession or in charge of good/assets belonging to the principal
  2. A genuine emergency occurs.
  3. It is impossible for the agent to contact the principal in time for the principal to make the decision.
  4. The person acting as the agent acts in the best interests of the principal and in a reasonable way.
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15
Q

An agent exceeds their authority in arranging a contract. What is the legal status for the principal?

A

The principal may still be liable to the third party but may be able to sue the agent for breach of contract.

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16
Q

What are the 3 types of authority for the agent to act on behalf off a principal?

A
  1. Express Authority
  2. Implied Authority
  3. Apparant/Ostensible Authority
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17
Q

True/False: The legal status of action outside of express authority by an agent, depends on if the third party knew this was outside the express authority.

A

True

18
Q

What are the fiduciary duties of an agent?

4

A
  1. To act in the best interests of the principal
  2. To avoid conflicts of interest between personal interests and the interests of the principal
  3. Not make any secret profit from acting as an agent
  4. To account to the principal for all money and assets recieved.
19
Q

What are the 4 remedies for breach of duty by the agent?

A
  1. Dissmiss the agent without notice.
  2. Repudiate the contract with the third party.
  3. Refuse to pay money owed to the agent or recover money paid.
  4. Recover any secret profit made by the agent.
20
Q

What are the duties of the principal to the agent?

A
  1. Pay the agreed remuneration or commission for the agents services.
  2. Pay all expenses reasonably incurred by the agent performing teh services.
21
Q

What is Tort?

A

A tort is a wrongful act that causes harm or damage to another person, resulting in a legal liability.

22
Q

Is Tort a part of:
A. Criminal Law
B. Civil Law

A

B. Civil Law

23
Q

What 3 factors must be present for a Tort court action?

A
  1. Defendant was under a legal obligation to act a certain way
  2. The defendant breached that obligation
  3. That loss or damage was suffered as a result
24
Q

What is Vicarious Liability?

A

It is the principal that one person can be held liable for the action of another person because they in some way authorised that action.

25
Q

In what situations can Vicarious liability exist?

A
  1. In an employer - employee relationship
  2. In a principal - agent relationship
26
Q

Give 4 examples of Torts.

A
  1. Negligence
  2. deceit
  3. Private nuisance
  4. Passing off
27
Q

For Tort of deceit to occur what 4 conditions must be present?

A
  1. The deceitful statement must have been made deliberatly
  2. There must be an element of dishonesty in the statement
  3. The claiment must have been decieved
  4. The claiment must have suffered loss or harm.
28
Q

What is the tort of Private Nuisance?

A

This is an act that wrongfully interferes with another persons right to peacefull enjoyment of their own land.

29
Q

What is the tort of Passing Off?

A

This is when one business pretends to its customers that it is someone else, in order to benefit from that other businesses reputation.

30
Q

What is the normal remedy for “Passing off”?

A

An injunction by the court forbidding it from “Passing off” its name, products or services as those of another.

31
Q

What is the tort of Negligence?

A

It is when one person suffers damage or injury through a negligent act or failure to act of another person.

32
Q

What 3 elements must exist for a person to be held liable for negligence?

A
  1. The person must owe a duty of care to one or more other people.
  2. They must be in breach of that duty of care by failing to act reasonably
  3. The injury or damage must have been caused by that breach of duty of care.
33
Q

What 3 parts of the Neighbour test must be demonstrated for there to be a duty of care owed by the defendant?

A
  1. Reasonable forseeability
  2. Proximity
  3. Whether it is fair, just and reasonable
34
Q

In the neighbour test, what does it mean to demontrate reasonable forseeablility?

A

The claiment must demonstrate that the defendant should reasonably expected that damage or injury would occur as a consequence of their negligent act.

35
Q

What are the 3 elements of proximity in the neighbour test?

A
  1. Proximity in time (time between negligent act & injury/damage)
  2. Proximity in space (Physical distance)
  3. Proximity in relationship.
36
Q

What is the general rule of the ‘reasonable person’ test?

A

Negligence occurs when someone owing a duty of care fails to do something that a reasonable person would or would not do.

37
Q

What is meant by the ‘but for’ test within the neighbour test?

A

It is a test of causality. Would the injury or damage have happened ‘but for’ the negligent act?

38
Q

What are the 4 defences for claims against negligence?

A
  1. Vicarious liablility
  2. Contributory negligence
  3. Volenti non fit injuria (voluntarily placed themselves in danger)
  4. The claim is time bared by the statute of limitations (6 years, or 3 years for personal injury)
39
Q

A claiment has coommitted ‘contributory negligence’. The effect of this is:
A. The claim is void with no damages payable
B. There is no effect and full damages are payable
C. The court may reduce damages in proportion to the claiments own negligence.
D. Non of the above

A

C. The court may reduce damages in proportion to the claiments own negligence.

40
Q

A claiment for negligence voluntariliy exposed themselves to risk. This is know as?
A.Contributory Negligence
B. Volenti not fit injuria
C. Causality
D. Breach of duty of care

A

B. Volenti not fit injuria

Corpoorate Governance & Law (8 decks)

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