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19 Cards in this Set

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What is the two part test to determine if a principal will be held vicariously liable for the torts of its agent?
1. A principal/agent relationship exists, and 2. the tort was committed by the agent w/in the scope of that relationship.
What are the 3 reqs of showing principal/agent relationship? (ABC)
(1) Assent: an informal agreement between a principal who has capacity and the agent
(2) Benefit: the agents conduct must be for the principal’s benefit.
(3) Control: the principal must have the right to control the agent by having the power to supervise the manner of the agents’ performance.
When can there be vicarious liability for a sub-agent?
When ABC exists. (however, usually won't find assent/control)
When can there vicarious liability for an independent contractor?
When ABC present (and control almost never is), unless: 1. contractor doing Ultra-hazardous activity, 2. Estoppel (Principal held out contractor w/ appearance of agency).
What is the three part test to determine the scope of agency?
1.Was conduct within job description, ie “of kind” hired to perform?, 2. Did the conduct occur during mere departure from task (detour) or was it new and independent journey (frolic)?, 3. Did the agent intend to benefit the principal, even in part?
Are intentional torts within the scope of principal-agent relationship?
No, unless 1. Conduct Specifically authorized by principal, 2. conduct was natural from nature of employment, or 3. conduct motivated by desire to serve principal
What is test for determining whether a principal is liable for a K entered into by its agent?
Principal is liable for Ks entered into by its agent if the principal authorized the agent to enter the K.
What are the four types of authorization that a principal can give to its agent re: entering Ks? (only need 1, but should mention all 4 in essay)
Actual express authority, Actual implied authority, apparent authority, and ratification
What is actual express authority, and how can it be granted? are there any exceptions?
It is when principal uses words (which can be oral, private, or narrow) to express authority to an agent, unless Equal Dignities Doctrine: If K must be in writing, then so to must the express authority also be in writing: (on exam, will be land Ks)
How can express actual authority be revoked? Are there any exceptions?
Express actual authority can be revoked by the 1. unilateral act or either party or 2. Death or incapacity of the principal, unless: the principal gave the agent "durable" (ie, conspicuous survival language) power of attorney.
What is actual implied authority?
Authority which agent reasonably believes the principal has given
What are the three ways that actual implied authority can arise?
i) Necessity: There is implied authority to do all tasks which are necessary to accomplish the expressly authorized task.
ii) Custom: there is implied authority to do all tasks.
iii) Prior Dealings between the principal and the agent. There is implied authority to do all tasks which the agent believes to have been authorized to do from prior acquiescence by the principal.
What is the two part test to determine if there is apparent authority?
i) Principal “cloaked” agent with the appearance of authority and, ii) 3rd party reasonably relies on appearance of authority.
What are the two situations where a 3rd party can rely on the agent to have apparent authority, despite the fact that the agent DOES NOT have authority?
(1) Secret Limiting instruction: agent has actual authority, but principal has secretly limited that authority, and agent acts beyond the scope of the limitation, and (2)Lingering authority: actual authority has been terminated. Afterwards, agent continues to act of principle’s behalf. 3rd party can still rely on appearance of authority until notice given.
What are the two things needed for Ratification, and what is the exception to ratification?
Ratification: Authority can be granted after the K has been entered, if:
i) Principal has knowledge of all material facts regarding the K, AND ii) Principal accepts its benefits, iii) UNLESS principal tries to alter terms of the K.
What are the two general rules relating to an agent or principals liability on a K entered into by an agent, and what is the exception?
(i)If no authority, principal is not liable on K, and agent is. (ii) If authority exists, principal liable on K, and agent is not.(iii) EXC: If principal partially disclosed (only the ID of principal concealed) or undisclosed (fact of principal concealed), the authorized agent may nonetheless be liable at the election of the 3rd party.
What are the 3 duties that an agent owes to the principal?
1) Duty to exercise reasonable care 2) Duty to obey reasonable instructions (unless instruction requires lawbreaking or lying) 3) Duty of Loyalty
What are the 3 parts of the duty of loyalty that an agent owes its principal?
a) No self-dealing: agent cannot receive benefit to detriment of the principal
b) No usurping the principal’s opportunity, c) No secret, undisclosed profits.
What is the principal's remedy for an agent's breach of duty?
The principal can recover loss caused by breach, and force agent to disgorge profits made by breach.