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13 Cards in this Set
- Front
- Back
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when will the principal be liable for the TORTS of an agent? (respondeat superior or vicarious liability)
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principal will be liable for torts of agent if
1) principal agent relationship exists, and 2) tort was committed by agent within the scope of employment |
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how do you know if a principal agent relationship exists?
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1. assent - must be informal agreement b/w principal and agent
2. benefit - agent's conduct must be for benefit of principal 3. control - in ny control is nuanced. principal must have power to supervise manner of agent's performance a) subagent - happy helper - no liability unless a,b,c b) borrowede agents - no liability SO - no liability for independent contractor's torts UNLESS a) ultrahazardous activity exception - if tort is committed by contractor when engaged in ultrahazardous activity there will be vicarious liability (brake repair is ultrahazarous activity) 2. if contractor is held out with appearance of agency, you will be estopped from denying vicarious liability |
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how do you know if something was in the scope of principal-agent relationship?
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1) was condct of the kind agent was hired to perform
2) did tort occuron the job (frolic v. detour) 3. did agent intend to benefit the principal (partial benefit is enough in ny) *if employer instructs employee, there is always a, b, c. |
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are intentional torts within the scope of agency?
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No, UNLESS conduct was
1) specifically authorized by principal 2) natural from nature of employment 3) motivated by desire to serve prinicpal (bouncer in bar) |
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when is principal liable for Ks entered into by agent
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Principal is liable for Ks entered into by agent if princpal authorized agent to enter into K
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how do we know if principal gave agent authority?
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1. actual express
2. actual implied 3. apparent 4. ratification |
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what is actual express authority
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principal used words to express authority to agent.
EXCEPT 1) anything involving conveyance of land, contract must be in writing |
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can actual express authority be revoked?
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yes
a) unilateral act of either party b) death or incapacity of principal EXCEPT can't be revoked, if principal gave agent "durable power of attorney" - wriitten expression of authority to enter into contract w/ durable, survival language |
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what is actual implied authority?
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conduct through which we will infer authorization - authority which believed was givne b/c of
necessity custom prior dealings |
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apparent authority
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two part testa
1) principal "cloaked" given agen twith apparent authority and 2) third party reasonably relies on authority (think secret limiting instruction,, lingering authority |
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what is ratification
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authority can be granted after contract has been entered, IF
1) principal has knowledge of material facts regarding contract, and 2) principal accepts its benefits EXCEPT ratification cannot alter terms of contract and must be complete |
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so general rules of liabilty on contract
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1) if no authority, then principal is not liable on K and agnet is
2) if authority, prinicpal is liable on K, and agent is not eXCEPT if principal is partially disclosed (identity is concealed) or undisclosed- then authorized agent may be laible |
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what duties does an agent owe to a principal
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1) duty to exercise reasonable care
2) duty to obey reasonable instructions 3) duty of loyalty a) no self-dealing b) no usurping principal's opportunity c) no secret profits |
