Agency

Front 1

What is capacity of principal?

Back 1

Contractual capacity

Front 2

What is capacity of agent?

Back 2

Minimal capacity

Front 3

2 situations where person disqualified from being an agent.

Back 3

1) representing both parties
2) not licensed where required

Front 4

3 Ways to Create Agency Relationship by Act of Parties

Back 4

1. Actual authority
2. Apparent authority
3. Ratification

Front 5

2 Modes of Creating Agency by Law

Back 5

1. Estoppel
2. Statute

Front 6

3 Major Duties of Agent to Principal

Back 6

1. Loyalty
2. Obedience
3. Reasonable Care

Front 7

Duty of Loyalty

Back 7

no adverse interests to P

Front 8

Duty of Obedience

Back 8

Liable for all reasonable directions

Front 9

Reasonable Directions

Back 9

Depends on nature of work, contractual understanding and custom

Front 10

Duty of Reasonable Care

Back 10

reasonable care in light of local standards and special skills of agent

Front 11

Duty of Notice

Back 11

Part of duty of reasonable care. Notice is imputed to P; but not under certain circumstances.

Front 12

Remedies of Principal- 4

Back 12

1. action for damages
2. action for secret profits
3. accounting
4. withold compensation

Front 13

Two types of Action for Damages P may bring

Back 13

1. Breach of K
2. Tort

Front 14

Duties of Subagent to P and A

Back 14

same duties as A

Front 15

Liability of A for S breaches

Back 15

liable to P

Front 16

Liabilitiy of S to A

Back 16

same duties owed to A as to P, so liable to A

Front 17

Liability of Unauthorized S to A

Back 17

No duties to P, A alone liable to P

Front 18

Duties of P to A

Back 18

1. compensation
2. reimbursement
3. duties imposed by K
4. duty to cooperate

Front 19

Remedies of Agent

Back 19

1. breach of K (A must mitigate damages)
2. agent's lien

Front 20

Two types of Real Estate Broker's Ks?

Back 20

1. nonexclusive
2. exclusive

Front 21

Three Questions for Actual Authority

Back 21

1. have requisite formalities been complied with?
2. what type of actual authority is present?
3. has authority been terminated?

Front 22

Two types of Actual Authority

Back 22

1. express authority
2. Implied authority

Front 23

Construction of Authority Given to Agents -3

Back 23

1. extravagant language limited
2. specific will prevail over general language
3. reasonable belief of agent

Front 24

Effect of mistake or misrepresentation on authority

Back 24

No effect- still given authority

Front 25

Ways for Implied Authority to Arise- 5

Back 25

1. implied from express authority
2. impled from custom and usage
3. implied by acquiescence
4. implied by emergency or necessity
5. specific situations

Front 26

Authority to Purchase- 2

Back 26

1. authority to pay
2. authority to accept delivery

Front 27

Authority to Sell-3

Back 27

1. authority to sell
2. authority to collect
3. authority to deliver

Front 28

Limits on Authority to collect

Back 28

1. only if A has possession of goods
2. only can collecft cash; unless implied consent

Front 29

Standard for Authority to Manage Investments

Back 29

prudent investor

Front 30

Ways to Terminate Actual Authority-6

Back 30

1. by lapse of time
2. by happening of event
3. by breach of A's fiduciary duty
4. by unilateral act of P or A
5. by change of circumstances
6. by operation of law

Front 31

Circumstance Sufficient to Terminate Actual Authority

Back 31

1. destruction of subject matter
2. drastic change in business conditions
3. change in relevant laws
4. insolvency of the agent or principal

Front 32

Durable Power of Attorney

Back 32

does not end with incapacity of P

Front 33

Two types of Irrevocable Agencies

Back 33

1. Agency coupled w/ interest
2. Power given as security

Front 34

Restatement View of Irrevocable Agencies

Back 34

1. both power given as security
2. purpose of grant to protect a debt or title
3. grant must be supported by consideration

Front 35

Apparent Authority

Back 35

holding out another as possessing certain authority. Can't bootstrap own authority.
AND
reasonable reliance by third party

Front 36

Two ways of holding out by principal

Back 36

Action or Inaction

Front 37

Three types of apparent Authority

Back 37

1. A has no actual authority
2. A has some present actual authority
3. Inherent authority

Front 38

Lingering Apparent Authority

Back 38

If 3d party has been dealing w/ agent; must be notified when agent's actual athority has been terminated.

Front 39

Effect of Death or Incompetency of Principal

Back 39

terminates all authority

Front 40

Improper disposition of Goods- Apparent Ownership

Back 40

Mere possession insufficient

Front 41

4 Prerequisites to Ratification

Back 41

1. P must know material facts
2. P must accept entire transaction
3. P must have capacity
4. No consideration needed

Front 42

2 Methods of Ratifying

Back 42

1. Express Affirmance
2. Implied Affirmance

Front 43

3 Ways to Imply Affirmance in Ratification

Back 43

1. acceptance of benefits
2. silence
3. lawsuit

Front 44

Three Excpetions to Ratification

Back 44

1. performance illegal
2. withdrawal by third party
3. material change of circumstances

Front 45

Disclosed Principal

Back 45

one whose existence and identity are known to third party

Front 46

Partially Disclosed Principal

Back 46

one whose existence , but not identity is known

Front 47

Election to bind Principal or Agent

Back 47

third party may sue both in an partially or undisclosed P situation, but prior to judgement must decide which party to hold liable

Front 48

Elements Necessary to Establish Tort Liability in Respondeat Superior

Back 48

1. employer- employee relationship
2. conduct w/in scope of employment

Front 49

Nature of Liability in Respondeat Superior

Back 49

1. derivative
2. joint and several
3. direct

Front 50

Independent Contractor

Back 50

P has no right to control the manner and method in which an IC performs the job

Front 51

Employee

Back 51

Employer has right to control the manner and method in which an employee perofrms the job

Front 52

Determination of Right to Control-10

Back 52

1. Right to control
2. characterization by the parties
3. distinct business
4. custom regarding supervision
5. skill required
6. tools and facilities
7. period of employmennt
8. basis of compensation
9. understanding of the parties
10. business purpose

Front 53

Implied Authority to Hire Subservant

Back 53

1. emergency situation
2. reasonable to achieve result

Front 54

Liability for Acts of Independent Contractors

Back 54

1. inherently dangerous actvities
2. selection of an incomeptent contractor
nondelegable duties

Front 55

Liability of Incompetent Independent Contractor

Back 55

1. if knows contractor is incompetent- liable for contractor's negligence
2. if doesn't - liable for own negligence in selection

Front 56

Scope of Employment

Back 56

employer not liable for tort of employee unless tort occured w/in scope of employment

Front 57

Three tests for if Employee about the Employer's business?

Back 57

1. conduct of same general nature, or incident to that which employed to perform.
2. conduct substnatially removed from authorized time and space limits of employment
3. was conduct actuated at least in part by a purpose to serve employer

Front 58

Frolic and Detour

Back 58

minor deviations (detour) included
major deviations (frolic) not included

Front 59

Unauthorized Instrumentalities

Back 59

Employer not liable for torts caused by employee in use of instrumentality substantially different than that authorized.

Front 60

Intentional Torts where Employer Liable

Back 60

1. force is authorized
2. promotion of employer's business
3. friction generated by employment
4. fraud