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30 Cards in this Set
- Front
- Back
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THE AGENCY RELATIONSHIP: What is an agency? (4) Elements:
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1. Consensual Relationship
2. Requiring Manifestation of Consent by Principal 3. That Agent shall act on P's behalf 4. Agent consents |
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THE AGENCY RELATIONSHIP: What is "Express Authority"?
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- P expressly tells A to act on his behalf.
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THE AGENCY RELATIONSHIP: What is Implied Authority?
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- P's conduct leads A to believe A has authority.
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THE AGENCY RELATIONSHIP: Six (6) ways Actual Authority can terminate:
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1. after specified time or event takes place,
2. change of circumstances, 3. change of law, 4. When A says No 5. When P says No 6. death, incapacity, or bankruptcy of A or P. |
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THE AGENCY RELATIONSHIP: Three (3) Substitutes for "Actual Authority":
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1. Apparent Authority
2. Ratification 3. Agency by Estoppel |
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THE AGENCY RELATIONSHIP: What is "Apparent Authority"?
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- Created when P leads a T to think that A has authority, though A doesn't, and T reasonably believes it.
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THE AGENCY RELATIONSHIP: Who does Apparent Authority protect?
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- T (third party)
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THE AGENCY RELATIONSHIP: If actual authority has been terminated, can apparent authority still exist?
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Yes.
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THE AGENCY RELATIONSHIP: How is apparent authority terminated?
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By P contacting T.
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THE AGENCY RELATIONSHIP: Ratification -
When does ratification happen? How can P ratify? |
Happens when - A contracts w/o authority
P can ratify by - affirming, accepting its benefit, or suing T on it. |
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THE AGENCY RELATIONSHIP: Agency by Estoppel - What are the two (2) requirements?
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1. P must have made false statements or concealed material facts, and
2. T must have detrimentally relied. |
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THE AGENCY RELATIONSHIP: Authority to sell property gives incidental authority to...?
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- Warrant title
- Warrant quantity and quality, - receive payment, -and deliver goods. |
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THE AGENCY RELATIONSHIP: Authority to purchase property gives incidental authority to...?
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1. pay purchase price out of P's funds, and
2. receive delivery |
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THE AGENCY RELATIONSHIP: When can an agent delegate to a sub-agent? (4) circumstances:
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1. agent is unable to lawfully perform,
2. emergency with no possibility of contact with P, 3. trade custom, and 4. basic administrative acts (like accepting a letter). |
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THE AGENCY RELATIONSHIP: What are the Agent's five (5) strict Fiduciary Duties?
[T.R.O.I.L.] |
T = Trade Secrets
R = Reasonable Care O = Obedience I = Indemnify L = Loyalty |
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THE AGENCY RELATIONSHIP: What does the duty of loyalty require?
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- always gives P notice of action,
- no competition, - no "dual agency" |
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THE AGENCY RELATIONSHIP: What does the Duty of Reasonable Care depend on?
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- Any special skills or knowledge A may have.
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THE AGENCY RELATIONSHIP: What is the Duty of Obedience?
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- A must follow all of P's reasonable instructions.
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THE AGENCY RELATIONSHIP: What must A Indemnify P from?
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- A's tortious acts
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THE AGENCY RELATIONSHIP: Does the duty to preserve trade secrets survive termination?
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Yes.
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THE AGENCY RELATIONSHIP: What are P's duties to A? (5)
to be a...[P.R.I.C.C] |
P = Prevent Harm
R = Reimburse I = Indemnify C = Cooperate C = Compensate |
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THE AGENCY RELATIONSHIP: What are four (4) examples of Agency Fiduciary Breach Damages?
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1. K damages,
2. Tort damages, 3. Constructive Trust, 4. Recission |
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THE AGENCY RELATIONSHIP: When is P liable to T?
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Always
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THE AGENCY RELATIONSHIP: When is T liable to A?
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- When A has an interest in the subject matter.
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THE AGENCY RELATIONSHIP: When is A liable to T?
(2) Exceptions? |
- Never
- Unless 1) the P is "undisclosed", or 2) A breached "warranty of authority". |
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RESPONDEAT SUPERIOR: Servant vs. Independent Contractor: "Late Night" Factors: C B S - Took - Letterman - and Paul - Shaffer - Beyond - Carson.
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1. Control of details (does P have the right?).
2. Business (Is A's business distinct?). 3. Specialist (is A a specialist?). 4. Tools and workplace (who provides them?). 5. Length of time 6. Payment (by time or by job?). 7. Skills required. 8. Belief and intent of the parties 9. Contract provisions. |
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RESPONDEAT SUPERIOR: Was Servant's Actions in the Scope of Employment (detour vs. frolic)? Remember - C.A.T.I.M.B.A.
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1. Control rights?
2. Authorized activity? 3. Time and place? 4. Intentional tort or criminal act? 5. Motive? 6. Means or instruments involved? 7. Benefits to master? 8. Accept those benefits? |
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RESPONDEAT SUPERIOR: S's intentional torts are outside the scope of employment, unless...? (3) times:
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1. Force is used to further M's business (bouncer),
2. M ratifies the use of force ("nice job"), or 3. M authorized intentional tort. |
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RESPONDEAT SUPERIOR: Are M and S jointly and severally liable for intentional torts?
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Yes.
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RESPONDEAT SUPERIOR: When are the five (5) times that P "cannot" avoid liability for acts of an Independent Contractor?
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1. Work performed is inherently dangerous,
2. P is charged by law with standard of care, 3. The act will create a nuisance, 4. Injury is foreseeable, 5. The act is illegal. |
