Tort/Contract Questions Flashcards
Is a P liable for the torts of an A?
General Rule
Yes if:
- Principal/Agent relationship exists; AND
- Tort must occur within the scope of the agency relationship
P/A Relationship-
Does one exist?
Yes, if there is:
- Assent- an informal, consensual agreement between the P who has capacity and the A
- Benefit- the A’s conduct must be for the P’s benefit
- Control- the P must have the right to control the A by having the power to supervise the manner of the A’s performance
Scope
Master/Servant Relationship- Is a master responsible for the conduct of his servant?
<!--?xml version="1.0" encoding="UTF-8" standalone="no"?-->
- Servants are liable
- IC’s/Agents- may be liable
- IC’s/non-agents- not liable
Idependant Contractor- Rule/Exceptions
Generally, there is no vicarious liability for an IC’s torts.
Exceptions:
- Ultra-hazardous activity exception (brake repair, dynamite)
- Estoppel (if you hold out an IC with the appearance of agency, you are estopped from denying vicarious liability, even for an IC’s torts)
Determining whether someone is a ‘servant’.
Factors
<!--?xml version="1.0" encoding="UTF-8" standalone="no"?-->
- extent of P’s control over work details
- whether A has distinct business
- trade practice of supervision in locality
- skill required to do job
- who supplies tools, place of work
- length of relationship
- is A paid by job of with unit wage
- is A’s work part of P’s usual business
- P’s and A’s believes about relationship
- whether P is in business herself
Independant Contractors-
Factors
- If you have Assent and Benefit, but no control, you have an IC
- There is no right to control an IC because there is no power to supervise the manner of an IC’s performance
Scope Question- Was the tort within the scope of the Agency?
3 Part Analysis:
- was the tortious conduct within the job description of the Agent?
- where and when did the tort occur? (frollic & detour)
- did the Agent intend to benefit the P with his tortious conduct?
Intentional Torts of Agents
Generally, intentional torts are OUTSIDE the scope of agency.
Exceptions (any one will do):
- specifically authorized by the Principal
- was natural from the nature of employment
- was motivated by a desire to serve the Principal
Is the P liabile for Contracts entered into by an Agent?
General Rule
Yes, if:
- there is an agency relationship between the P and A (same test as above)
- if P authorized A to enter into the contract
Types of Agency Relationships
- Actual Express Authority-
- Actual Implied Authority-
- Apparent Authority-
- Inherent Authority-
- Ratification-
Actual Express Authority
- expressed, even if privatly, authorization to enter a contract
- (narrowly construed to words that actually express the authority; no need to be in writing unless required by equal dignities doctrine)
- revoked by unilateral action or death
Actual Implied Authority
Implied authority present because of:
- Necessity-AIA present when necessary to accomplish an express task; all smaller tasks necessary for the express task
- Custom- AIA present when customarily performed by persons with A’s title or position
- Prior dealings- AIA present to do all tasks that A believes to be authorized by prior acquiescence by P
Apparent Authority
Not real authority, but will be recognized as apparent authority if:
- P cloaked the A with the appearance of authority
- 3rd Party must rely reasonably on appearance of authority
Ratification
Authority conferred by P to the A after the contract has been entered.
Two part test:
- P has knowledge of all material facts regarding the contract
- P has accepted the benefits of the contract
But there is an exception. Ratification must be complete. P must ratify the entire contract and not change any terms.
