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30 Cards in this Set

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THE AGENCY RELATIONSHIP: What is an agency? (4) Elements:
1. Consensual Relationship

2. Requiring Manifestation of Consent by Principal

3. That Agent shall act on P's behalf

4. Agent consents
THE AGENCY RELATIONSHIP: What is "Express Authority"?
- P expressly tells A to act on his behalf.
THE AGENCY RELATIONSHIP: What is Implied Authority?
- P's conduct leads A to believe A has authority.
THE AGENCY RELATIONSHIP: Six (6) ways Actual Authority can terminate:
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.
THE AGENCY RELATIONSHIP: Three (3) Substitutes for "Actual Authority":
1. Apparent Authority

2. Ratification

3. Agency by Estoppel
THE AGENCY RELATIONSHIP: What is "Apparent Authority"?
- Created when P leads a T to think that A has authority, though A doesn't, and T reasonably believes it.
THE AGENCY RELATIONSHIP: Who does Apparent Authority protect?
- T (third party)
THE AGENCY RELATIONSHIP: If actual authority has been terminated, can apparent authority still exist?
Yes.
THE AGENCY RELATIONSHIP: How is apparent authority terminated?
By P contacting T.
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.
THE AGENCY RELATIONSHIP: Agency by Estoppel - What are the two (2) requirements?
1. P must have made false statements or concealed material facts, and

2. T must have detrimentally relied.
THE AGENCY RELATIONSHIP: Authority to sell property gives incidental authority to...?
- Warrant title

- Warrant quantity and quality,

- receive payment,

-and deliver goods.
THE AGENCY RELATIONSHIP: Authority to purchase property gives incidental authority to...?
1. pay purchase price out of P's funds, and

2. receive delivery
THE AGENCY RELATIONSHIP: When can an agent delegate to a sub-agent? (4) circumstances:
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).
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
THE AGENCY RELATIONSHIP: What does the duty of loyalty require?
- always gives P notice of action,

- no competition,

- no "dual agency"
THE AGENCY RELATIONSHIP: What does the Duty of Reasonable Care depend on?
- Any special skills or knowledge A may have.
THE AGENCY RELATIONSHIP: What is the Duty of Obedience?
- A must follow all of P's reasonable instructions.
THE AGENCY RELATIONSHIP: What must A Indemnify P from?
- A's tortious acts
THE AGENCY RELATIONSHIP: Does the duty to preserve trade secrets survive termination?
Yes.
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
THE AGENCY RELATIONSHIP: What are four (4) examples of Agency Fiduciary Breach Damages?
1. K damages,

2. Tort damages,

3. Constructive Trust,

4. Recission
THE AGENCY RELATIONSHIP: When is P liable to T?
Always
THE AGENCY RELATIONSHIP: When is T liable to A?
- When A has an interest in the subject matter.
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".
RESPONDEAT SUPERIOR: Servant vs. Independent Contractor: "Late Night" Factors: C B S - Took - Letterman - and Paul - Shaffer - Beyond - Carson.
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.
RESPONDEAT SUPERIOR: Was Servant's Actions in the Scope of Employment (detour vs. frolic)? Remember - C.A.T.I.M.B.A.
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?
RESPONDEAT SUPERIOR: S's intentional torts are outside the scope of employment, unless...? (3) times:
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.
RESPONDEAT SUPERIOR: Are M and S jointly and severally liable for intentional torts?
Yes.
RESPONDEAT SUPERIOR: When are the five (5) times that P "cannot" avoid liability for acts of an Independent Contractor?
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.