Ba--Agency

Front 1

Agency--Elements

Back 1

1. A MANIFESTATION or indication that one party(the principal) consents to having another act on his behalf

2. MANIFESTATION OF ASSENT OR CONSENT by the other (the Agent) to accept the undertaking

3. understanding that the principal is to be in CONTROL

Front 2

Principal--def

Back 2

Party on whose behalf the agent acts
--has the right to control the actions of the one who performs for his benefit

Front 3

Agent--def

Back 3

given the power in either a single matter or a broad range of affairs to effect changes in the legal relationship of the P and 3P just as if the P himself had acted.

Front 4

Types of Principals--4

Back 4

1. Disclosed
2. Undisclosed
3. Unidentified/Partially Disclosed
4. Totally unknown to 3P (at the time the the transaction is entered into)

Front 5

Disclosed Principal--def

Back 5

3P knows the A is acting on behalf of a P

AND

3P knows the P's identity

Front 6

Unidentiifed/Partialy disclosed Principal--def

Back 6

3P knows the A is acting on behalf of a P

BUT

3P does not know P's identity

Front 7

Undisclosed Principal--def--elements (2)

Back 7

3P does not know the agent is acting for a P
BECAUSE

1. A purports to be acting solely for his own benefit

OR

2. does not mention the existence of a P (even when empowered to do so)

Front 8

Liability and disclosure in K

Back 8

1. Disclosed-->P solely liable for authorized K's made by his agent
2. Undisclosed--> 3P may seek remedy against agent(who may indemnified is acting properly)
3. Unidentified--> 3P sues agent directly

Front 9

Types of Agents

Back 9

1. General
2. Special
3. Factor
4. Subagent

Front 10

Types of Agents--General Agent--def

Back 10

an agent authorized to conduct a series of transactions involving a continuity of services.

Front 11

Types of Agents--Special Agent--def

Back 11

an agent authorized to conduct on ly a single transaction or series of transactions NOT INVOLVING a continuity of service.

Front 12

Types of Agents--Factor--def

Back 12

a commercial agent employed by a principal to sell consigned merchandise in the agent's own name on behalf of the principal.

Front 13

Types of Agents--Subagent-def

Back 13

When an agent appoints another to perform funstions undertaken by the agent for the principal AND the agent has AUTHORITY to make such appointments. If not authorized the subagent is not a subagent but the agent's agent and the principal is not liable for the appointee.

Front 14

"master-servant" relationship--def--Independent K exception

Back 14

a type of P-A relationship when the "master/employer/principal" (1) employs the "servant/employer/agent" to perform services

AND

(2) retains control over the maner in which the employee performs the services

--employee to be distinguished from an independent contractor--a worker over whom the principal retains NO RIGHT OF CONTROL

Test is (1) control and (2) type of performance

Front 15

Independent Contractors

Back 15

-may or may not be an agent-->decided by the relationship of the parties

-agree to perform services for another but conduct is neither controlled by nor subject to the right of control by the P

-usually P is not liable to 3P for harm resulting from unauthorized physical conduct of an IC

Front 16

Implied Authority

Back 16

Created by P's conduct which jury determines justifies the A's belief that he had authority
-usually established by circumstantial evidence

put another way, the P created the appearance of authority which would warrant the A's belief that he was, in fact authorized

Front 17

Delegation of Authority to Appoint Subagents--when it has occurred

Back 17

1. express authorization by P for A to appoint SAs
2. acts to performed are mechanical or ministerial i.e. not involving skill, discretion, special knowledge or personal performance.
3. when it is in agreement with custom and trade practice to delgate in order to achieve agency purpose
4. when necessary to accomplish work to be done i.e. running P's business
5. in an emergency i.e. impractical to contact P and appointment of SA's is required to protect P's business interests.

Front 18

Requirements for Agency Relationship

Back 18

1. Consent
2. Capacity
3. Writing Seldom Required
4. Proper Purpose
5. No Consideration REquired

Front 19

Requirements for Agency Relationship--Capacity

Back 19

P must have capacity to contract.

Minors generally do not (some courts have found K's voidable rather than void)

Insane persons cannot be Ps

both minors, incompetents and insane persons can be agents because they are acting on behalf of their Principals.

Front 20

Inherent Authority

Back 20

includes the power to do those acts which are usually and reasonable necessary to accomplish the agency's purpose
-distinguished from incidental authority because the A may have never considered the A's acting with these implied powers.
-arises as a result of the relationship itself

Front 21

Requirements for Agency Relationship--Consent

Back 21

May be express (in writing or oral) or implied

Must be mutual

Front 22

Requirements for Agency Relationship--Gratuitous Agency--?--

Back 22

can be terminated at any time by either party without being liable for breach

UNLESS

the gratuitous agent has begun performance or the P ha changed his position in reliance on the performance and will be harmed by non-performance. Then the grat. agent has a duty to perform lesthe be liable for damages sustained by the principal.

Front 23

Apparent authority--theories of liability

Back 23

-P holds out to 3P that A has authority.
-silence/inaction can create apparent authority

1. Estoppel Theory
2. K Theory

Front 24

Joint Venture

Back 24

2 or more parties come together to for the purpose of carrying out a single business transaction
-scope of the A's authority is limited to the business of the venture
-when the joint venture ends, so too does the agency

Front 25

Apparent Authority--Estoppel Theory

Back 25

P's (1) representations or or (2) conduct to the 3P causing him to detrimentally rely n such representations even though the A has no power to act

Front 26

Actual Authority-Incidental

Back 26

-power of A to do what is usually required or reasonably necessary to accomplish purposes for which express authority was given.
-authority to conduct a transaction includes authority to do incidental acts related to the transaction
-in emergency, A can have incidental authority

Front 27

Requirements for Agency Relationship--Proper Purpose.

Back 27

not illegal or against public policy--
i.e. voting in an election; executing a will; or signing an income tax return, illegal acts, K's calling for performance by P, licensing.

Front 28

Authority--definition + types

Back 28

the power of the agent to affect the legal relations of the principal by acts done in accordance with the agent's reasonable understanding, at the time the agent acts, of the principal's manifestation of consent to him

Every Inning Involved A Rightfielder''s Error

1. Actual Authority
2. Apparent Authority/Estoppel
3. Inherent Authority
4. Ratification
5. Emergency

3P has burden of proving authority

Front 29

Actual Authority--Evidence of Intent

Back 29

Depends on a variety of factors--
1. relationship between the parties
2. Business in which they are engaged
3. previous employment of agent by P
4. whether A is general or special
5. type of work involved[ ministerial or broad in scope]
6. the type of act to be performed

Front 30

Actual Authority-express

Back 30

all powers expressly granted by the P to the A or implied by the P's manifestations to the A

OR

those powers which are normally necessary or incidental to achieving the principal's objectives.

Must (1) be directed to the A (2) emanate from the P in oral or written representations or through implication from the P's words or conduct (indicating the principal's desire for the agent to act on his behalf in a particular transaction or series of transactions.)

Front 31

Secret limitations

Back 31

if 3p does not know or does not have reason to know about any secret agreements, the P is bound even if A violates the agreement b/t A and 3P.

Front 32

Actual Authority--Evidence of Intent--Parol Evidence Rule

Back 32

applies when parties have put authority in unambiguous writing PER applies.

if the writing is a complete and final statement of the agreement PER not allowed, but if the document is ambiguous, PER does come into play

Front 33

Notice--broad def + elements

Back 33

under agency law facts of which an agent has notice will be imputed to the principal.

Elements:
1. Notification
2. Knowledge

Front 34

When does a person have notice of a fact

Back 34

if he knows it, has reason to know it, should know it or has been given notification of it.

Front 35

Authority--Emergency

Back 35

1. real emergency
2. P unable to give authority
--extends only as far as what is reasonable to protect P's business interests.

Front 36

Notice--Notification--def

Back 36

a juristic act calculated to give information to another that affects the legal relationship between parties.

(1) an act by a 3P (2) directed to an agent (3) intended to bring the P a piece of knowledge that affects the P's rights

e.g. a T delivers to the super notice intended to inform the L of T's desire to terminate lease.

Front 37

Ratification

Back 37

-act could have been authorized at he time it was made
-only P can ratify
-P must have full knowledge of all material facts
-the ENTIRE transaction must be ratified
-must occur before 3P revokes and in a reasonable time
-only a disclosed or partially disclosed principal can ratify

Front 38

Notice--Notification--relationship to authority

Back 38

Notification to an A is effective to give notice to P if A had any authority to affect the P IN THE TRANSACTION

Front 39

Notice--Notification--Duration

Back 39

if proper notification is given to A, it will continue indefinitely

Front 40

Ratification--types

Back 40

1. Express--clear or written oral expression
2. Implied--P's conduct would justify that he has affirmed the transaction
3. Litigation--?

Front 41

Notice--Notification--what if A was acting adversely to the P
--exception

Back 41

doesnt fucking matter UNLESS

3P knows that the A is acting adversely to the P and that A will not pass on notification

Front 42

Notice--Knowledge--definition

Back 42

subjective; involves AWARENESS of the particular fact or condition in question

Front 43

Notice--Knowledge--relationship to authority--rationale

Back 43

A's knowledge will be imputed to P is A had actual authority (compare with notification where ANY authority is sufficient)

Front 44

Ratification--Requirements

Back 44

1. Capacity--Doctrine of Relation Back--Must have capacity at time of trans. and time of ratification
2. Must be a representation of Agency by P--i.e. no undisclosed P.
3. Knowledge--P must have knowledge of all material facts
4. No partial ratifications
5. If K in writing, Ratification must be in writing
6. Must be ratified before the 3P withdraws

Front 45

Notice--Knowledge--when acquired; exception; restatement

Back 45

Only those facts discovered by the A during the period of Agency will be imputed--i.e. P is not charged with knowledge of facts learned by A before[or after] his employment

UNLESS

there is a close connection bt transactions...i.e. knowledge of a managing officer of a corporation, gained while serving with predecessor corp., is held to be imputed to current corp.
restatement view--immaterial all that matters is whether the A had the knowledge IN MIND when it became relevant to his work for P

Front 46

Ratification--Liability

Back 46

P can sue A for acting outside the scope.
upon ratification, P is liable to 3P

Front 47

Notice--Knowledge--what if A was acting adversely

Back 47

A is acting outside the scope of employment. therefore, knowledge is not imputed.

--some courts say that A's interest must be SUBSTANTIALLY adverse

KNOWLEDGE will be imputed is the P retains a benefit

Front 48

Notice--Knowledge--standard

Back 48

bz Agent or Principal is held to have greater sophistication and knowledge than a layman first participating in this type of venture.

Front 49

Notice--Knowledge--fiduciary duty theories (2)

Back 49

1. fiduciary nature of relationship requires A to notify P of all relevant facts known to him.
2. A must act in best interests of P